Many of my clients have parents whose health is starting to falter. They may be unable to make decisions for themselves about their health, safety, or finances. However, in some cases the parents are reluctant to give up any control over their assets and don’t want anyone else to be able to make decisions for them.
I usually recommend that if possible, elderly individuals execute a power of attorney and a Georgia Advance Directive for Healthcare (in addition to a Will). A power of attorney and a healthcare directive will allow a named individual to make decisions about finances and health care in the event the elderly person is unable to do so.
In some cases, the elderly person no longer has the capacity to make good decisions about his or her finances, health, safety or welfare. In other cases, the elderly person might be being taken advantage of by a family member or friend, and doesn’t want anyone else to make decisions for him or her. In those cases, a guardianship or a conservatorship may become necessary.
A guardianship is a legal process in which a person asks the probate court to give him or her control over an adult’s health, safety and welfare. A conservatorship is similar but gives control over finances. Guardianships and conservatorships are often expensive and time-consuming, but in many cases are necessary to protect an individual from either being taken advantage of or from making poor decisions.
If you believe your mother or father or another loved one is in need of a guardianship/conservatorship, call Sarah White, Cobb County guardianship attorney, at 678-453-6490. She will help you walk through the process and will also help determine if any alternatives exist.
Probably the biggest reason parents of minor children want to do Wills is to name guardians for their children. Every parent wants to have the power to pick who they want to raise their children in case they pass away.
In Georgia, when one parent passes away, guardianship goes to the other parent, even if the other parent doesn’t have custody, and even if the deceased parent named someone else as guardian in his or her Will. When both parents pass away, if the parent named a guardian in a Will, and if that guardian is willing and able to serve, he or she is appointed as guardian without a hearing in most cases.
However, obviously not all parents do Wills naming guardians for their children. In that case, if something happened to both parents, the probate court in the county of residence for the parents would have a guardianship hearing to name guardians for the children. Typically, one family member or friend will file a petition with the probate court to serve as guardian, and anyone who objects or wishes to be named as guardian can file an objection. If a minor is over the age of 14, the court will take the minor’s preferences into consideration when choosing the guardian. If the child doesn’t have a preference, the court will look to a biological relative (typically a parent of the deceased first, followed by a sibling of the deceased), then any other adult relative of the minor, then any other adults who are related to the minor by marriage.
Obviously, it’s best to make your wishes about guardianship of your children known in your Will, rather than by potentially having them raised by someone who wasn’t your first choice, or potentially subjecting them to an emotional court battle. If you’re in north Georgia, including Marietta, Canton, Kennesaw, Woodstock, Acworth, Cartersville, Smyrna, or Roswell, call Sarah White, guardianship attorney, at 678-453-6490. Call me to learn more.
If you are getting older and you are concerned that at some time in the future you won’t be able to manage your affairs, you may be concerned about who will do so. Many people have one person (often a child) who would be their first choice to take over in the event they became incapacitated.
If you have those concerns, there are a couple of actions you should take. First, you should execute two documents. One is a power of attorney, and the other is a Georgia Advance Directive for Healthcare. A power of attorney will allow your children, or whomever you name, to handle your financial affairs in the event you become incapacitated. A Georgia Advance Directive for Healthcare gives whomever you name the power to manage your healthcare decisions in the event you can no longer do so yourself. Those two documents are invaluable in the event you become incapacitated. You may also wish to discuss your wishes with your children about healthcare and finances, as well as to tell them what they need to know should that time ever arise where you can’t handle your affairs.
A lot of my clients ask my advice on whether or not they should add their child or children to their bank account to make paying bills easier. I almost never recommend doing that. If the child were to go through a divorce or bankruptcy, those assets could be seized. If the child decided to go on a gambling trip to Las Vegas, those funds could be used. When the individual passes away, those funds will go automatically to the child, and the child may choose not to share with other children. Instead, a power of attorney could be used that would give the child the same power over the account.
If you do not do any advance planning, and you become incapacitated, your loved ones could be forced to go through a court process to obtain a guardianship or a conservatorship. This process can be lengthy and expensive and may not result in what the elderly person would have wanted.
If you are concerned about your future and you feel that you may need a power of attorney or a healthcare directive, call Sarah White, Marietta wills attorney, at 678-453-6490. I serve clients in Canton, Cartersville, Roswell, Acworth, Woodstock, Kennesaw, Smyrna and the surrounding areas. Call today to learn more.
I get this question a lot. Yes, if you are going to be going out of town without your kids, and you are leaving your kids in the care of another person or persons, I recommend that you complete a basic temporary guardianship form. The form will serve as a notice that your kids are authorized to be under the care of another person. The form typically also consents to medical care for your children. If you are going out of town and need such a form, please email me at firstname.lastname@example.org and I would be happy to email you a blank form free of charge.
This temporary guardianship form is very different from issues that arise in other circumstances. For instance, you will name a guardian for your children in your will – this will tell who you want to raise your children in the event that something happens to both parents. There are also standby guardianship forms that can be of use to single parents in the event the parent becomes incapacitated. Finally, some parents of special needs children need to seek a guardianship over that child when the child turns 18 in order to continue making legal decisions for that child.
Do you have a potential guardianship issue that you need to speak to a Georgia attorney about? Call Sarah White, Marietta guardianship attorney at 678-453-6490 or email me at email@example.com. I would be happy to speak with you about those issues.
A guardianship is a legal process where a person (the proposed guardian) petitions a court and asks to be appointed guardian over another person (the proposed ward). A guardianship typically occurs either when a person with special needs reaches the age of 18, or when an adult loses or begins to lose control of his or her faculties. If the guardianship is granted, the guardian can make legal decisions and health care decisions for the ward. A guardianship does not give the guardian the right to manage a ward’s money – that is done through a conservatorship, which can be a part of the guardianship proceeding. Instead, guardians can make decisions for the ward that affect the person of the ward, such as health care decisions. Once a guardian is appointed, the ward typically loses legal rights such as the right to vote, the right to marry, the right to own firearms, etc., although the court may choose to let the ward retain some of those rights.
Because the guardianship process removes so many rights from a ward, a guardianship is not something that should be entered into lightly. Instead, there should be a clear need for a guardianship. The guardianship process begins when a proposed guardian petitions the probate court located in the county in which a proposed ward resides. The probate court will appoint an attorney for the proposed ward, contact a doctor who will examine the proposed ward, notify family members of the petition, and set a date for a court hearing. At the court hearing, the attorney for the proposed guardian will present evidence before the court showing why a guardianship should be granted – typically the testimony of family members and any other concerned parties about the proposed ward’s situation. The court will also examine the doctor’s report. The attorney for the proposed ward will testify about his or her opinion on the guardianship and whether it’s in the best interests of the proposed ward. At the conclusion of the evidence, the court will either grant the guardianship or deny the guardianship.
Some people who can’t wait on a permanent guardianship may seek a temporary guardianship on an emergency basis. Guardianships can be an involved legal process. If you are in the metro Atlanta area and have any questions about guardianships, contact Marietta guardianship attorney Sarah White at 678-453-6490 to learn more.
One of the most difficult decisions for many of my clients with minor children is choosing who their guardians will be. After all, guardians will be responsible for most of the decisions of their children, if something should happen to both parents. Typically, naming a guardian is done in a will. Upon your death, the person you named in the will doesn’t actually become legal guardian until approved by a court. Therefore, your choice isn’t automatically binding. However, if no one contests your choice of guardian, the court will confirm the guardian you chose.
It’s important when you are choosing a guardian for your children that you talk it over with the person and get their complete approval – that is not something that should be a surprise. You should also name alternate guardians as well. When choosing a guardian, pick someone who would raise your children in the manner in which you wish them to be raised. You may want to choose someone who’s familiar with your extended family, as that could help them maintain close relationships with your extended family. You may have a perfect candidate in mind, but there’s one problem – they aren’t very good with money. Don’t let that stop you from naming them as guardian. You can choose someone else as trustee to manage the kids’ money.
Many people choose to name a married couple as co-guardians. That is fine, but you may wish to specify in your will what happens if they are no longer married at the time of your death. You may wish for only one of them to serve, or you may want your children raised by a different married couple instead. Make sure your wishes are spelled out in your will.
These decisions are never easy, but an experienced estate planning attorney can help you talk through them and reach a decision that’s best for your family. If you are in the metro Atlanta area, call Sarah White, Marietta estate planning attorney, at 678-453-6490.