Three Steps to Choosing a Guardian for Your Child with Special Needs

Preparing a comprehensive estate plan to protect a child with special needs can be an emotional roller coaster. On the one hand, parents should be relieved that they are taking steps to guarantee that their child will be well cared for after they are gone. On the other hand, confronting one’s own mortality and having to decide who will manage the affairs of a child with special needs can be stressful.

Out of all of the decisions that parents of children with special needs have to confront, the choice of a guardian stands out as one of the most difficult because the person serving in that role will essentially step into the parents’ shoes and take care of the child. But parents don’t have to dread this decision, especially if they follow these steps:

1. Take Time to Choose, But Don’t Take Too Long

Choosing someone to become the guardian of your child is not a decision that should be made lightly, but this doesn’t mean that the decision should keep you up at night, either. Start by putting together a list of potential candidates. Don’t spend a lot of time worrying about the list; just write down anyone who could potentially serve. Then go through the list and eliminate anyone who, for whatever reason, doesn’t strike you as an optimal choice, keeping in mind that no one is going to be a perfect substitute for the original parent. Chances are, this ten-minute exercise will immediately winnow your options down to a couple of people. Once you’ve narrowed down your options, take some time to think about each person on the short list. But don’t get hung up on choosing a person yet; you will still have some work to do.

The key at this stage of the game is to not get overwhelmed with worry about your choices, especially since you haven’t even asked anyone on your list if they are willing to serve. One of the biggest mistakes parents of children with special needs make is getting so caught up in the decision making process that they don’t go ahead with their planning at all. Don’t let this be you — make your list, start to narrow it down, and then proceed to the next step. But whatever you do, don’t stop planning.

2. Talk to Your Potential Guardians and Make Sure to Encourage Honesty

After you’ve narrowed your list of potential guardians down to a few names, talk to each one (separately) and ask them if they are willing to serve. Don’t put these people on the spot with statements like, “If you don’t do it, I don’t know what we’ll do,” and encourage each person to be honest with you about his or her questions and concerns. Don’t look for immediate answers; give your potential guardians time to think about things and get back to you if they are on the fence.

This conversation may immediately narrow down your list, as some people may tell you that they absolutely will not or cannot serve. At the same time, talking face to face with your choices may help you to weed out a few more people.

3. Make a Decision and Put Your Plan into Action

After speaking with your prospective guardians you may be able to make a decision about who will serve. But if you still need to think about your choice, keep a few things in mind. First, you can always change your nomination at a later point, and, in fact, many people do. For instance, it may make sense for young parents to name their parents or older relatives as guardians while those people are still fairly young and then change their estate plans when the original nominee gets too old to serve. Likewise, as friends and family move away, parents may have to update their estate plans as the guardian they have picked for their child no longer lives in the area. Nothing is set in stone.

Here are some additional questions to consider if you are having a hard time choosing a guardian:
o Do I want my child to stay in his community and is the guardian willing to move here if she doesn’t already live here?
o Does the guardian have experience working with people with special needs?
o How does the guardian interact with my child specifically?
o Does the guardian have too much going on in his own life to care for a child, especially one with special needs?
o Does the guardian have children, how old are they and can the guardian take on another child?
o How old is the guardian? Do I have a backup in case he or she can’t serve?
o Does the guardian share my values about things like religion, education and finances?
Although the decision making process may not be easy for every family, it is a necessary one. Remember, the worst thing that you can do is to leave guardianship to chance, which is what will happen if you don’t have an estate plan that reflects your wishes. Once you’ve followed these simple steps and made your decision, put it into effect by meeting with your special needs planner and drafting the proper documents immediately. Again, don’t put it off.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.


Accounting Is Not Only Important – It’s Mandatory

Imagine how you would feel if you walked into your bank, asked for a summary of your account activity and the bank told you that it had no idea how much money was in your account or how it had been spent. Of course, this doesn’t normally happen because the bank has a fiduciary duty to account for your money and it takes that job very seriously. Unfortunately, too many trustees of special needs trusts or those who oversee funds for people with special needs don’t even know that they have a duty to account for the funds they manage, let alone perform that duty correctly.

All trustees, representative payees, guardians and conservators are required by law to keep track of funds under their control. In California all guardians and conservators are required to provide court accountings directly to the court for approval. Additional if a trust was established by the court in a conservatorship or guardianship, the trustee must account to the court.
Likewise, the Social Security Administration mandates yearly accounting by representative payees handling other people’s funds. In some cases, typically when a trust is not established by a court, the trustee has a duty to account that is spelled out in the document or by state law. But in all cases, the person with the fiduciary duty has to keep track of the money under her control, just like a bank.

Trust and guardianship accounting does not have to be difficult since, in quite a few cases, the trustee, conservator or guardian only has to worry about one or two bank accounts. This type of cash accounting is basically the same as keeping a balanced check book. The trustee, conservator or guardian simply records all transactions and makes sure that they match the monthly bank statement. Typically after the first year, the trustee, conservator or guardian itemizes all of the transactions and provides a report to the beneficiary and possibly the court explaining how the funds were spent and how much money remains. If court approval is not required, the trust beneficiary or his guardian typically has a certain period of time to object to the account before it becomes final.

The same principles apply to trustees accounting for larger pools of money, although in those cases the trustee usually has to account for investment gains and losses as well as typical expenditures. If the trust is large, it makes sense to hire an attorney or accountant to make sure that the accounts are properly prepared because they can get tricky if multiple investments are involved.

Although the accounting process is simple, it is surprising how few non-professional fiduciaries actually do it correctly (and even some professionals fall down on the job). Every year there are dozens of cases from across the country where trustees, conservators and guardians are removed from their positions because they can’t explain what happened to the funds under their control. In some cases, this is because the trustee, conservator or guardian actually looted the trust or guardianship/conservatorship account, but in many cases the person in the position of responsibility simply didn’t keep track of what was going on, either because he was too busy or he didn’t know that he needed to account for the funds under his control. When this happens, the trustee could possibly be sued or even go to jail.

Aside from the fact that a trustee or guardian has a duty to the person with special needs to account for his money, accounting also protects the trustee or guardian. Once an account becomes final due to court approval or the passage of time without objection by the beneficiary, no one can come back and sue the trustee for mishandling the funds that were accounted for, so long as the account was not fraudulent. If the trustee doesn’t file an account, she doesn’t get that important peace of mind.

If you’ve been named as the trustee of a special needs trust or as the representative payee, guardian or conservator of a person with special needs, you need to talk with your special needs planner immediately about accounting. It’s one of the most important duties you have.


* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.


Charitiy Fraud Alert

The County of Santa Clara District Attorney’s office recently issued a fraud alert in relation to giving to charities after a disaster. The Federal Trade Commission also urges you to be on guard against scam artists who try to take advantage of someone else’s tragedy, as they see a rise in this type of fraud after natural disasters.

If you’re donating money to a charity, here’s how to make sure your dollars go to the causes you support.
• Donate to charities you know and trust. Find a charity with a track record of dealing with natural disasters. Be alert for charities that seem to have sprung up overnight in connection with current events. Check out the charity with the Better Business Bureau’s (BBB) Wise Giving Alliance, Charity Navigator, Charity Watch, or GuideStar.
• Designate the disaster. Charities may give the option to designate your giving to a specific disaster. That way, you can ensure your funds are going to disaster relief, rather than a general fund.
• Ask if a caller is a paid fundraiser, who they work for, and what percentage of your donation goes to the charity and to the fundraiser. If you don’t get a clear answer — or if you don’t like the answer you get — consider donating to a different organization.
• Don’t give out personal or financial information — including your credit card or bank account number — unless you know the charity is reputable.
• Never send cash: you can’t be sure the organization will receive your donation, and you won’t have a record for tax purposes.
• Find out if the charity or fundraiser must be registered in your state by contacting the National Association of State Charity Officials.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Obtaining a Truly Free Annual Credit Report

While there are lots of advertisements and websites that claim to offer you a free credit report, the only truly free credit report available is from the Federal Trade Commission (FTC). The FTC recommends that consumers check their credit report at least annually.

A Federal Trade Commission study of the U.S. credit reporting industry found that five percent of consumers had errors on one of their three major credit reports that could lead to them paying more for products such as auto loans and insurance.

Overall, the congressionally mandated study on credit report accuracy found that one in five consumers had an error on at least one of their three credit reports.

To learn more about the way your credit score can affect you and what to do if you find errors in your credit report watch this video from the FTC.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

When a Good Estate Plan Goes Bad!

We recently hosted a client seminar to discuss things that can go wrong with even a well drafted estate plan.  Most often things go wrong with an estate plan as a result of lack of communication between the parties (i.e. our clients, their successor trustees, and the beneficiaries).  While documents are drafted to follow the clients’ wishes, many times the clients do not consider the impact the documents may have on their beneficiaries after they have passed away.

Communication about the estate plan can help alleviate some of the difficulties which can occur following a death.  If the family is aware of the parents’ intent regarding the distribution of personal property for instance, the arguments regarding the jewelry, piano or grandfather clock might be eliminated.  If the parents have carefully considered their choice of trustee, the administration of the estate will be smoother and there will be less potential for conflict, even if this means that a non family member should serve as trustee.

A new legal practice method is being utilized to help with some of these areas.  A collaborative practice is designed to involve the whole family in the estate planning process.  The goal is to avoid family conflict following the passing of the parents.  The hope is that if everyone is involved and aware of the provisions in the documents, the conflicts will be minimized after the death of the parents.  While not every family can have meaningful and useful discussions about these areas, for those that can, having a discussion regarding the estate plan can make the administration much easier.  These meetings can be held with the attorney, a mediator or professional facilitator to review and discuss the issues that are presented in the plan.

If you would like to learn more, please click here to view our slide presentation from the program.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Deed Scam

Nothing makes me angrier than people trying to scam other people.  The latest scam has hit two of my clients in the last week.  Both received an official looking envelope with correspondence inside entitled Local Records Office.

The rather official looking documentation requests $89.00 to be sent in to receive a copy of their latest filed deed.  Only if you turn the document over do you see in very small print the words “not affiliated with any State or the United States or the County Records”. However the disclaimer is small and not very noticeable, so my clients could have easily complied with the request. Luckily, they called us first.

This so called service is really not a service that you need.  You can get a copy of your deed by requesting it from the recorder’s office.  However in most instances, you already have the document in your possession.  In my client’s cases, I had just recorded deeds for them, so I would have sent them the same document free of charge.

It is appalling to send out such forms, which look so official that most people would pay the charge without realizing that it is unnecessary.  The company apparently has just enough disclaimer language in the form to avoid prosecution and they do offer a service, although you could easily obtain the deed yourself and save your money.

All we can do is get the word out to try and help prevent people from being taken advantage of by this scam.  For every official looking form you receive, be cautions, check the back of the form for fine print. It can also be helpful to do a search on the name of the agency sending the information. When you type Local Records Office into google, you get a list of articles about the scam.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

What is Hospice?

Hospice is a practice of specialized care for individuals nearing the end of life. But it is not just for the last few days. In fact, Medicare pays for months of free services to patients and their families. For instance:

  • Do you wish you had help with bathing your loved one?
  • Are you worried about keeping your relative comfortable and out of pain or suffering?
  • Do you wish you had 24/7 access to medical advice?

Hospice offers these services and more. Its goal is to support the patient and family emotionally, physically, and spiritually.

With hospice care, your relative receives regular home visits from

  • a nurse who comes to manage pain, nausea, and other uncomfortable symptoms;
  • a social worker with advice about local programs to help with special needs;
  • a trained volunteer who can stay with your relative once a week so you can have a needed 2-3 hours off.

Such services are free to persons on Medicare who meet these eligibility requirements:

  • An incurable condition
  • A doctor’s assessment that the patient is not likely to live longer than six months
  • Willingness to let go of curative treatment

With an emphasis on quality of life, hospice is the choice for patients who would rather enjoy the time they have left than continue with repeated hospitalizations and ER visits.  It’s also good for patients who are tired of dealing with the side effects of treatment that offers only a slim chance of recovery.

If you think your loved one could benefit from hospice care, ask the doctor a simple question: “Would you be surprised if [your relative] were to die in the next year?” If the doctor says “no,” then it’s wise to talk about if/when hospice would be a good choice.  In hindsight, many families say they wish they had signed up sooner.

To learn more about hospice click here.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

SCAM ALERT: Federal Trade Commission (FTC) Issues Alert for Scams Relating to Recent Affordable Care Act Decision

Just after the U.S. Supreme Court ruled on the Affordable Care Act, scam artists began working the phones. The scam works as follows: Claiming to be from the government, scam artists tell listeners that under the Affordable Care Act, they need to verify some information. For example, they might have the routing number of the person’s bank, and then use that information to get the person to reveal the entire account number. Other times, they have asked for credit card numbers, Social Security numbers, Medicare ID, or other personal information.

The Federal Trade Commission, the nation’s consumer protection agency, has again issued a warning not to give out personal or financial information in response to unsolicited phone calls, emails, or knocks on your door. If you get a call from someone who claims to be from the government and who asks for your personal information, hang up. It’s a scam. The government and legitimate organizations with which you do business have the information they need and will not ask you for it. Then, file a complaint at the Federal Trade Commission Website  or call 1-877-FTC-HELP. If you think your identity has been stolen, visit the Federal Trade Commission Website or call 1-877-ID-THEFT. You also can file a complaint with the California Attorney General.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

SCAM ALERT – Property Notices

According to the CANHR Advocate, homeowners throughout California have been receiving notices from their “Local Records Office.” These notices are being sent from an organization called Norwalk, which is including the legally required statements on the notice, but the notices are set up to look like official government documents.

Some homeowners have been confused by the notice and have mailed $89, erroneously believing that they were paying a bill to the county recorder.  Others have sent in the $89 payment because they wanted to obtain the offered copy of their deed and a property profile.

You can obtain a copy of your deed from your county recorder. Some counties now allow you to order copies on-line or by telephone for a very minimal cost. You can obtain a property profile from a number of different websites for free. I often look up properties using Zillow to get an idea of the estimated property value and current tax assessment.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.