What is guardianship and how do you avoid it?

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Guardianship is a court procedure in which an individual is appointed to make certain decisions for another person (the “ward”). The purpose of a guardianship is to protect or assist an individual who, due to mental incapacity, is unable to make decisions, defend him or herself against exploitation, or otherwise provide for his or her needs.

The proposed ward may require a guardian of the estate and/or a guardian of the person.  A guardian of the estate handles the ward’s financial matters, similar to a power of attorney for finances, whereas the guardian of the person handles day-to-day matters such as the ward’s living arrangements, medical care, etc.  In addition, the person petitioning the court to appoint a guardian for the proposed ward may request a temporary or permanent guardianship.  A temporary guardianship can generally be established within a few weeks and lasts for sixty days, with up to one sixty-day extension.  A permanent guardianship, on the other hand, remains in effect until removed by the court.  In order to establish a guardianship, the proposed ward must be found legally incompetent by two physicians or one physician and one psychologist.

The ultimate goal of a guardianship is to impose as few restrictions on the ward as possible (i.e., remove as few of the ward’s rights as possible), while also ensuring that his or her needs are being met.  However, even the most minimally restrictive guardianships results in the loss of some of the ward’s rights.  One way to prevent a guardianship from becoming necessary is to plan ahead and execute a Financial Durable Power of Attorney and Power of Attorney for Healthcare.  These documents will usually provide the principal’s power of attorney or health care agent with sufficient authority to protect or provide for the principal’s needs without petitioning the court to establish a guardianship, thereby avoiding the time and expense of a court proceeding.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Special Needs Trusts

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Are you planning to leave assets to a disabled beneficiary upon your death?  If so, consider establishing a special needs trust (“SNT,” also known as a supplemental needs trust) for your beneficiary’s benefit.

An SNT is an irrevocable trust (i.e., the trust cannot be revoked or amended) established for the benefit of a disabled individual and managed by a trustee.  Because the trust is not owned by the beneficiary, the trust assets can be used to provide for the disabled person’s needs over and above the essential primary care provided to the disabled person through public assistance programs such as Medicaid or SSI, without compromising his or her eligibility for those benefits.  SNTs are divided into two general categories, first-party or third-party, depending on who the trust is funded by.

First-party SNTs are, as you may expect, funded with the disabled person’s own assets.  A first-party SNT is established by the disabled person or on his or her behalf by a guardian, parent or grandparent, or the court.  While a first-party SNT is a good option for a disabled person who wants to preserve assets he or she already has, upon his or her death the State can recover against the disabled person’s estate for benefits paid during his or her lifetime, including recovery against non-probate assets.

Third-party SNTs, on the other hand, are created by a third-party’s Will or Revocable Trust for the benefit of the disabled person and funded upon the third-party’s death from the proceeds of the third-party’s estate.  There is no limitation on who may create a third-party SNT for the benefit of a disabled person, and upon the beneficiary’s death there is no estate recovery by the State.

While many SNTs are privately managed, they can also be created as a pooled and community trust (PACT) which is run by a nonprofit entity.  While each PACT beneficiary has a separate account, the assets of all participating beneficiaries are pooled for investment purposes.  PACTs, like private SNTs, can be either first- or third-party.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

What is Elder Law?

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Elder Law is a fast-growing practice area due to the steadily aging population of both Wisconsin and the nation as a whole.  However, many may not have a good understanding of what Elder Law is, or the services an Elder Law attorney can provide.

The practice of Elder Law encompasses the provision of legal services to older and disabled individuals and their families.  For older clients, this can include planning for incapacity and long-term care needs, coordinating available private and public benefits, and working with the client’s family, healthcare providers, other advisors, and fiduciaries to ensure that his or her objectives and needs are being met.

Planning for incapacity will often include implementing durable powers of attorney and advance healthcare directives, such as powers of attorney for health care, declarations to physicians (also known as a Living Will), and authorizations for final disposition. If the individual in question is already incapacitated and is unable to care for him or herself, an Elder Law attorney may assist that person’s family in petitioning the court to establish a guardianship.

An Elder Law attorney can also assist an older individual in planning for his or her long-term care needs.  This can include planning geared towards Medicaid eligibility or working with the individual’s financial advisor to ensure that he or she is able to pay privately for long-term care.

For disabled individuals, planning opportunities can include special needs trusts, which are used to provide for a disabled individual’s needs while maintaining his or her eligibility for governmental assistance and benefits.  Special needs trusts may be established by or on behalf of the disabled person and funded with his or her own assets, or by a third party for the disabled person’s benefit.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Is your child turning 18? Consider suggesting that he or she execute a durable power of attorney and advance healthcare directives.

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As your child prepares to begin college or enter the workforce, estate planning is likely the last thing on his or her mind—or yours.  However, there are numerous situations in which young adults can benefit from executing basic estate plan documents.  For example, should a child be in an accident and become disabled or incapacitated, even temporarily, his or her parents may not be able to act on the child’s behalf without court approval.  Alternatively, the child may be out of the country (or simply out of town) and require his or her parents to do something as simple as signing a lease or sending money to the child from his or her bank account.

A Durable Power of Attorney for financial matters, if activated, allows a parent or other individual designated by the child to act on the child’s behalf with respect to most financial and/or business matters.  Similarly, a Power of Attorney for Health Care authorizes the child’s agent to make medical decisions on his or her behalf, including decisions regarding medical consent and life support issues.  Further, a HIPAA Authorization provides the child’s parent or other designated individual access to the child’s healthcare and treatment information.

For these reasons, we strongly recommend that all adults, even those who have just turned 18, execute a Durable Power of Attorney, Power of Attorney for Health Care, and HIPAA Authorization for Release of Protected Health Information.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Someday, Even Your Estate Plan Will Be Electronic

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In today’s day and age, most transactions may be accomplished electronically.  However, there is still one field where old-fashioned pen and paper is typically still required: Trusts and Estates.  Given the sensitivity of estate planning documents, difficulties in authentication, and the potential for data loss or hacking, many people would be (rightfully) hesitant to create or store such documents electronically.  Despite these obstacles, interest in electronic wills and other estate planning documents has increased in recent years.

The Uniform Electronic Transactions Act (UETA) of 1999, setting forth nationwide rules for electronic transactions, has been adopted in 47 states (including Wisconsin) and the District of Columbia.  The Electronic Signatures in Global and National Commerce Act, passed by Congress in 2000, allows the use of electronic records and signatures in interstate commerce.  However, both Acts specifically exclude application to the creation and execution of wills, codicils, and testamentary trusts.

Currently, Nevada and Indiana are the only states to have enacted legislation explicitly authorizing electronic wills (although, electronic wills have been successfully admitted to probate in other jurisdictions under the harmless error doctrine).  Efforts to pass similar legislation in Florida, Arizona, New Hampshire, and Virginia have been unsuccessful.

In late 2017, the National Conference of Commissioners on Uniform State Laws (NCCUSL) formed a Committee for Electronic Wills.  According to the NCCUSL website, the Committee will “draft a uniform act or model law addressing the formation, validity and recognition of electronic wills.”  See http://www.uniformlaws.org/Committee.aspx?title=Electronic%20Wills.  In addition, the Committee will consider expanding its mission to address other estate planning documents, including advance medical directives and powers of attorney for health care and finance.

It will be years, or even decades, before electronic wills and other estate planning documents become commonplace, but the trend is clear: someday, even your estate plan will be electronic.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Lin Law LLC welcomes Attorney Emily E. Ames

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Lin Law LLC is pleased to welcome Attorney Emily E. Ames as an associate attorney. Emily practices in the areas of Estate Planning, Probate, Elder Law, Real Estate, Corporate / Business Matters, and General Civil Litigation.

Emily obtained her undergraduate degree from the University of Michigan with a Bachelor of Arts in Linguistics. She is a graduate of the University of Wisconsin Law School, where she served as a managing editor of the Wisconsin Law Review, a class representative for the Student Bar Association, and an intern for the Honorable Shirley S. Abrahamson, Wisconsin Supreme Court.

Emily is a member of:
State Bar of Wisconsin
Brown County Bar Association, Young Lawyers Association
Estate Planning Council of Northeast Wisconsin, Inc.
Green Bay Estate Planning Forum

In her free time, Emily enjoys getting outdoors in the Green Bay area, spending time with her family and friends, and practicing yoga.

Evan Lin Named to the 2017 Wisconsin Super Lawyers List!!

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Evan Lin Named to the 2017 Wisconsin Super Lawyers List!!

Evan Y. Lin, an attorney and managing member of Lin.Liebmann LLC, has been named to the 2017 Wisconsin Super Lawyers list by the publishers of Super Lawyers® Magazine. Each year, only 5% of attorneys in Wisconsin are named a Super Lawyer. Evan was previously named to the 2015 and 2016 Wisconsin Super Lawyer lists and was named five times to the Wisconsin Rising Star list in Estate Planning and Probate by the same publication.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

Passing Notes

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In 2015, the State of Wisconsin passed 2015 Wisconsin Act 55 which created a rule requiring Promissory Notes to be negotiable, assignable, enforceable and marketable in order for them to not be considered a divestment. As a result, use of Promissory Notes as a divestment tool was essentially eliminated.

In July, the Federal Government officially informed the State that effective August 1, 2017, this policy was not allowed under federal law. This is a major development in divestment planning because Notes are extremely useful in that they are: simple, inexpensive and effective.

In order for a Promissory Note to be used correctly as a divestment tool, they must comply with the following requirements:

1) The note must have a repayment term that is actuarily sound (based on SSA life expectancy tables);
2) The note must have equal payments during term of note (no deferral or balloon); and
3) The note cannot be cancelled upon death.

If a note is done correctly, it’s important to note that payments received from a promissory note are income in the month they are received. However, the value of the note itself is not counted as an available asset provided it can’t be sold.

So how does a note work in real life? Take the following two examples:

EXAMPLE 1
Jane is a single person, 90 years old, has $100,000 of available assets, and is currently in a nursing home. She has income of $700/month of Social Security. Her nursing home bill is $9,000 per month.

Jane makes a gift of $50,000, and simultaneously borrows her son Dick $50,000 in return for a promissory note. The terms of the Note: 1.29% interest, payable in 6 equal monthly installments of $8,364.72.

Jane applies for Medicaid and is denied due to the gift, and assessed a penalty period of 179 days ($278.05/day/$50,000).

Result: Jane uses note payment and SS to cover cost during penalty period, successfully saved $50,000 cash.

EXAMPLE 2
Charles and Di are each 90-years old and married.

They borrow William $75,000. William signs a note at the applicable federal rate of of 1.93%, payable in 58 equal installments (there is a 4.85-year life expectancy for Di) of $1,355.39 per month.

Di applies for Medical Assistance. Amount remaining on note is unavailable, and no divestment is made, $1,355.39 per month is income which can be retained by Charles as part of his Spousal Income Allocation, assuming his other income doesn’t rise to the maximum level.

As you can see, notes can save a significant amount of money if used correctly, and should be a tool utilized in many situations.

Dying to Help, and Helping to Die?

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In June, a bill was introduced in the Wisconsin State Senate called the “Compassionate Choices” bill. The bill proposes to create a new chapter 156 in the state statutes that would, essentially, allow for physician assisted suicide under certain conditions. The bill is modeled after laws in Oregon, Washington and Vermont (and similar bills have been passed or proposed in 23 other states, plus Washington D.C.). Advocates for these bills feel that people who are suffering should be able to choose for themselves whether they live or die. Opponents feel life is precious and should be preserved at all costs.

The bill creates a statutory form called: “Request for Medication Authorization to End My Life In a Dignified Manner”, which people use to make the request for their physician to prescribe them medication to end their life. The bill requires the patient to follow several steps in order to have the medication administered. 1) the patient must be of sound mind, be 18 or older, and have a terminal disease (defined as incurable and will cause death within 6 months); 2) the individual must orally ask their doctor; 3) Within 15 days of the oral request, must make a request in writing (by filling out a form similar to the statutory form mentioned above), however it cannot be done until a consulting doctor (someone other than the attending physician) examines the patient to confirm that the patient has a terminal disease, is not incapacitated and is making a voluntary and informed decision; 4) After the written request, the patient must again orally request the medication. The request can be revoked at any time.

The bill defines the responsibilities and immunities for physicians when a patient makes this request. The doctor must 1) determine if there is a terminal disease, the patient is not incapacitated and is making the request voluntarily; 2) inform the patient of the diagnosis, risks/results of taking the medication, and alternatives; 3) refer the patient to counseling if the doctor believes the patient may be suffering from a psychiatric/psychological disorder including depression; 4) Ask that the patient notify his or her next of kin (it is not required that the patient do it, but the doctor must ask them to); 5) Inform the patient that the request can be revoked; 6) prior to filling the prescription must ensure the patient followed the steps required by the patient, that more than 48 hours have passed since the 2nd oral request, and that the decision is an informed one; 7) The physician must document the requests, the determinations made in (1), the determinations of the consulting physician, certify that the patient was informed the request could be revoked and a certification that all steps were properly taken; 8) The doctor may refuse to fulfill the request but must make a good faith attempt to transfer the patient to another physician to fulfill the request.

A doctor cannot be charged with criminal, civil or unprofessional conduct for: 1) failing to fulfill a request (except it is unprofessional to not refer the patients care), 2) filling a request, 3) failing to act on a revocation unless they have actual knowledge.

Finally, the bill states that requesting the medication does not constitute attempted suicide and taking the medication does not constitute suicide.

This is a truly fascinating piece of proposed legislation, and one that I presume will either die quietly without a vote, or be subjected to a great amount of protest and scrutiny. Any time someone’s life or death is involved, politics becomes emotionally (and often religiously) charged, even though the reasons for outrage aren’t always clear cut. In addition, the bill was proposed by democratic senators in a republican controlled legislature, with a conservative governor. The likelihood of success seems small.

Aside from the politics, the bill creates many hoops that someone would need to jump through (which makes sense), and creates several potential timing issues that would limit a patient from doing everything correctly in order to be prescribed the medication. Other problems I see with the bill being utilized is the requirement that the patient be competent. I’m not a medical professional, but in the vast majority of cases where someone has a terminal illness, the person is not competent, which would automatically remove the ability to do this. Obviously, an incompetent person should not be making important decisions, but I do think an extension to this bill would involve added terminology to Health Care Powers of Attorney or Declaration to Physicians that would invoke this right. I would also think that most people in this situation, even if competent, would be suffering from some form of depression, which would apparently prevent their wishes from being granted. Due to the nature of the bill, I do think the writers did a pretty good job of trying to cover all of their bases. The decision to take one’s life is not something that should necessarily be easily or quickly done. Whether the bill accomplishes what it seeks to, or if it becomes law, is something we will have to wait to see.