Living Trust Planning | Estate Planning Attorney

Tag: guardianship

  • Till Death or Divorce: Why You Need to Plan Now for Your Relationship’s End

    Till Death or Divorce: Why You Need to Plan Now for Your Relationship’s End

    After the excitement of Valentine’s Day fades away and the last indulgence of chocolate is savored, it’s crucial to turn our attention to a topic that may not be as thrilling as the idea of everlasting love: the reality that all relationships come to an end one day. Before you stop reading, hear me out.

    Whether it’s a breakup, divorce, or the death of a loved one after a lifetime together, every relationship eventually will come to an end. The most important thing is how you’ve planned for that ending, or whether you haven’t at all, as your planning (or lack of it) will have a real impact on you, your partner, your children, and your assets.

    The silver lining? While we can’t prevent the end, we can prepare for it with a blend of compassion and strategic planning that makes the end the best possible foundation for a new beginning.

    Understanding the Intersection of Love and Law

    Love is wonderful—joyful moments, shared dreams for the future, and yes, some legal considerations too. For married couples, the law has default provisions in place for what happens to your assets if one of you dies, but those default plans may not align with your personal preferences or the life you’ve built with your partner.

    If you’re an unmarried couple, the absence of a plan could leave you vulnerable, risking the loss of assets or the inability to make crucial decisions about your property or your medical care.

    To better understand how a lack of planning can leave you and your partner out in the rain, let’s look closer at these important areas that are affected when a relationship ends.

    1 | Property Ownership

    Let’s say you and your partner purchase a home and other assets together. Without clear documentation outlining ownership rights, a dispute can arise if the relationship ends in a breakup. But breakups aren’t the only danger.

    If you aren’t married and one of you passes away, the other partner might find themselves without a rightful claim to the property, potentially facing homelessness or a significant financial loss.

    If you own any property with anyone else or if you want to ensure your property lands in the hands you choose in the event of your death, contact us to plan for that property now.

    2 | Healthcare Decisions

    In the unfortunate event of a medical emergency where one partner becomes incapacitated, lacking appropriate legal documentation could impede the other partner’s ability to make critical healthcare decisions on their behalf. This can lead to delays in medical treatment or disagreements among family members over the person’s treatment, causing unnecessary stress and complications during an already challenging time.

    3 | Guardianship for Children

    For couples with children, failing to establish guardianship arrangements in the event of both parents’ incapacity or death can have devastating consequences. Without a designated guardian, children may be placed in the care of individuals who may not align with your wishes or values, leading to potential custody battles and emotional upheaval for the children and your extended family.

    If you and your partner end your relationship without coming to a mutual agreement on a guardian for your children, things could get even more chaotic – especially if one of you has documented your desired guardian and the other partner hasn’t.

    Worst of all, typical wills don’t cover planning for the needs of minor children sufficiently. It’s why we offer the Kids Protection Plan, specifically designed to ensure your children are never raised by anyone other than people you know, love, and trust, and are never taken from your home and into the care of strangers.

    4 | Business Interests

    If you and your partner share business interests or investments, the lack of a solid plan could jeopardize the future of these assets. Without clear instructions, the surviving partner may face challenges in managing or transferring ownership of these assets, potentially leading to financial instability or the dissolution of the business.

    Be Proactive, No Matter What the Future Holds

    In each of the scenarios above, the absence of proactive estate planning measures leaves individuals vulnerable to legal and financial uncertainties. By taking proactive steps that consider what will happen when your relationship ends, couples can safeguard their assets, ensure their wishes are honored, and provide peace of mind for themselves and their loved ones.

    Not sure how to start the conversation with your partner?

    Start by explaining to your partner your desire to safeguard the life you’re building together. Just as relationships evolve over time, your wishes and how they’re documented should too. Continuously engaging in dialogue and revisiting your plans ensures they remain aligned with your evolving needs and aspirations.

    Let Us Make It Easy to Plan Ahead

    Whether you’ve already started the conversation with your partner or need more guidance, planning for the future of your relationship can feel overwhelming. We can help.

    At our firm, we don’t merely dispense legal counsel; we safeguard your love story. We comprehend the profound significance of your relationship and are dedicated to ensuring its protection. Whenever (and however) your relationship ends, we’ll work with you to create a plan that considers these contingencies ahead of time so you and your loved ones can avoid the stress, conflict, and chaos that comes with incomplete planning.

    To learn more about how we approach estate planning from a place of heart, schedule a complimentary 15-minute call with our office.

    This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Life & Legacy Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life and Legacy Planning Session.

  • Special Needs Planning in 5 Steps – Part 1

    Special Needs Planning in 5 Steps – Part 1

    If you have a child with special needs, you know they’ll need extra planning to make sure they’re well cared for in the future. But special needs planning can easily end up on the back-burner when you’re juggling multiple therapy appointments, IEP meetings, and the many other challenges that can happen when supporting a child with special needs. You may also find that your biggest roadblock to completing special needs planning is your own fear of disability and death.

    One way through these fears is to take the process one step at a time and view it as a plan that benefits your entire family today, not just as a plan for what happens when you’re no longer around (though a good plan will do that too!). 

    To get started, let’s break special needs planning down into five steps:

    1 | Learn How Special Needs Planning Can Benefit Your Family

    Special needs planning means creating a plan for continuous, consistent support for individuals with special needs so they can live their best lives while maintaining a tailored balance of autonomy and protection. To achieve these goals, most families need the support of public benefits in addition to the private resources of the family.

    Public benefits like Supplemental Security Income (SSI) and Medi-Cal contribute essential support for individuals who meet Social Security Administration criteria for being “disabled.” While public benefits are meager in some respects – few can survive solely on an SSI maximum benefit of $941 per month, for example – Medi-Cal coverage can provide robust support beyond ordinary health insurance. This can include job exploration and coaching, community integration and day service programs, and even residential care.

    However, an individual with a disability must meet certain low-income requirements to qualify for these programs, and any change in the person’s income may result in the loss or disruption of these benefits.

    The foundational fact of special needs planning is this: Gifts or inheritances given directly to individuals with disabilities disrupt the most essential public benefits like SSI, Medi-Cal, and Housing and Urban Development (HUD) subsidies. 

    Even paying rent for an adult disabled individual or allowing them to live with you rent-free can decrease SSI benefits unless handled properly. Thankfully, special needs planning tools like special needs trusts (also called “supplemental needs trusts” or “SNTs”) and ABLE accounts make it possible for families and individuals with disabilities to maximize these public benefits to enhance their quality of life while preserving family assets.

    If this sounds overwhelming, don’t worry. We can help you create a special needs plan that balances the support your child needs with the needs of your entire family through our heart-centered, counseling-based approach to planning. 

    2 | Identify The Best Level of Support for Your Child

    We will help you envision your child with special needs living their best life, first with your support, and then when it’s no longer possible for you to care for them due to death or disability.  What support do they need now and what support do you imagine they’ll need in the future to have the best possible life?

    With a clear vision, we can help you to map out the best plan, ensuring that plan is properly funded, and that you’ve properly incentivized the people you want caring for your child to do so.

    As your child approaches 18 years of age, this step will also involve exploring whether a conservatorship or a supported decision-making process will best serve your child. In general, in a conservatorship, a court removes certain rights and responsibilities of the individual and transfers them to a conservator, who then is responsible to the court for exercising those duties and powers in the best interests of the individual with special needs.

    By contrast, in supported decision-making, individuals with special needs choose and appoint agents to serve under powers of attorney for healthcare and finances. The choice between these options will depend on the individual’s capacity under state law and on their vulnerability to exploitation.

    Parents of children with special needs will also need to identify other family members, friends, and agencies who can provide support alongside themselves. Even if a parent meets all the needs of an individual with special needs alone, this can result in an abrupt transition to a new caregiver when that parent has an accident or medical event, or when that parent dies. 

    Most individuals with special needs struggle with such abrupt changes, and we believe these individuals are better served by a broader care team that will one day create a more gradual transition in caregivers.

    Helping You Start Your Special Needs Planning Journey

    Whether you recently received a diagnosis that your child has special needs, or you’ve been caring for an individual with special needs for a long time, the idea of formally creating a special needs plan can feel overwhelming. But no matter what stage your family is in, it’s never too late or too early to start special needs planning.

    We understand that at times seeking a proper diagnosis, therapy, and educational support must take priority for your loved one with special needs. To some extent, we must secure the present before we look to secure the future. But at the same time, the financial and social results of delaying your special needs planning can have profound consequences. That’s why the future of your loved one with special needs can best be secured through planning sooner rather than later.

    When you’re ready to take the first step toward special needs planning or revisit planning you’ve already done that may not feel complete, give us a call. We’d be honored to help your family build and implement a plan that will serve your loved one with special needs and your entire family for years to come.

    And don’t forget to check back later this month for part two of this series.

    This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Life & Legacy Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life and Legacy Planning Session and mention this article to find out how to get this $750 session at no charge.

  • Estate Planning For a Child With Special Needs: Three Tools You Need to Know

    Estate Planning For a Child With Special Needs: Three Tools You Need to Know

    As a parent of a child with special needs, you’re well aware of the unique challenges that come with caring for your child’s care. You’re an expert on their preferences, routines, skills, and challenges. However, when it comes to securing their future, legal planning can seem overwhelming. You may wonder what tools are the right ones to ensure your child’s unique needs are always met.

    The good news is that there are a number of estate planning tools available to help you protect your child’s interests and provide for their needs, both now and in the future. Even better, these tools can be customized to suit the level of care your child requires, regardless of their level of independence or functioning. Here are three essential tools that every parent of a child with special needs should consider.

    01 | Ensuring A Lifetime Of Care Through Guardianship

    Without proper legal planning, you lose the ability to make decisions for your child when he or she turns 18. Guardianship is a legal relationship ordered by a court that gives someone the authority to make decisions for their adult child if they aren’t able to do so for themselves. With court guardianship, you can name yourself or someone you trust to have the authority to make decisions about your child’s medical care, education, living arrangements, and more. 

    Guardianship is a crucial tool for parents of a child with special needs and is absolutely necessary if your child has challenges that prevent them from making decisions or taking care of themselves independently. Guardianship is an important step in ensuring that your child’s needs are always met.

    Why You Shouldn’t Wait Until Your Child is Near Adulthood

    Even if your child isn’t near the age of adulthood, it’s important to nominate a legal guardian now in the event that you pass away or become incapacitated before your child turns 18. Without your nomination, your child may be left without the care of someone you trust, and the decision of who will care for your child will be up to a court that doesn’t know your child or their unique needs. Thankfully, we’re experienced in nominating guardians for minors and adults, and can walk you through the process of nominating a guardian now, and how to finalize that nomination when your child nears adulthood. We can also help you name short-term legal guardians who can care for your child on a short-term basis if you’re traveling or in the event of an emergency.

    02 | Be There For Your Child with Powers of Attorney

    While not appropriate for all people with special needs, powers of attorney are another important legal tool for parents. Whether your adult child is neurotypical or has special needs, it’s important that you retain some ability to make decisions for them in case they ask for your help or aren’t able to make decisions on their own.

    If your child is high-functioning and able to live independently, powers of attorney may be an appropriate tool to support their care. Through powers of attorney, your adult child can grant you the ability to make financial or medical decisions for them, such as scheduling doctors’ appointments, paying bills, or signing a rental agreement. Your child can also choose whether these powers make it possible for you to act on their behalf at any time or only in the event of their incapacity. Plus, powers of attorney can be customized to meet your child’s specific needs and wishes, ensuring that their care and well-being are always a top priority while still respecting their autonomy and independence.

    03 | Protect Your Child’s Financial Future with a Special Needs Trust 

    Finally, every parent of a child with special needs should consider creating a special needs trust to protect their child’s financial security. This type of trust is designed to provide extra financial support for your child while ensuring that they remain eligible for much-needed government benefits such as Medicaid and Supplemental Security Income (SSI). In fact, giving money directly to a child with special needs can actually cause them to lose their government benefits unless that money is provided to them through a special needs trust.

    A special needs trust can be used to pay for a wide range of needs, including living expenses, household items, health care, and more. And, even better, a special needs trust can be drafted so that you incentivize the people you’ve named as guardians to care for your child the way you are currently caring for them. For example, you may include instructions to financially reward caregivers who take your child to dinner or the movies, so caregivers are properly motivated to provide the kind of care you would naturally, but others may not after you’re gone. Knowing you’ve provided financial incentives for your child to have companionship and care is something many of our clients deeply appreciate.

    Ensuring Your Child Is Eligible For Government Aid

    In order for your child to remain eligible for government aid while receiving funds from a special needs trust, the trust must follow a set of regulations and reporting requirements that vary by state and can be difficult to understand. That’s why it’s crucial to work with us to develop a special needs trust that meets these requirements while being perfectly suited to your child’s unique needs. 

    Your Trusted Advisor When Planning for a Child with Special Needs

    We understand that every child with special needs is different, and that’s why we offer a personalized approach and a comprehensive range of estate planning services, including special needs trusts and legal guardianship nominations, to create a plan that’s unique to your child. If you aren’t sure where to start or what your child may need now and in the future, contact us today at (650) 600-1735. We’ll walk you through your unique situation and develop a plan that ensures your child with special needs has the physical, financial, and emotional support they need now and for years to come.

    This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

  • Have a Loved One with Special Needs? Why You Need Your Plan Reviewed If You Moved Here From Another State

    Have a Loved One with Special Needs? Why You Need Your Plan Reviewed If You Moved Here From Another State

    Life is full of unexpected journeys, and sometimes circumstances lead us to need to move from one state to another. Amidst the excitement and challenges of moving, one critical aspect that demands your immediate attention is your plan for the well-being and security of your loved one with special needs. 

    Whether you moved for a job opportunity, family reasons, or to get a fresh start, it’s crucial to recognize how your carefully crafted special needs plan may be impacted by the difference in our state laws and regulations. What worked well in your previous state may not be as effective or valid in your new home. 

    To ensure your loved one’s future remains secure, it’s urgent to have your plan reviewed promptly after a move and updated accordingly.

    Each State Has Specific Disability Benefit Laws and Programs

    Special needs planning is a multifaceted process, greatly impacted by the laws and regulations of the state where the plan was created. Each state has its own unique legal framework that governs vital aspects of your plan such as guardianship, special needs trusts, public benefits, and Medicaid eligibility. 

    A well-designed plan in one state might not fully protect your loved one’s interests once you relocate. For example, if your loved one benefits from state-sponsored in-home care, you’ll need to apply for a similar program here in your new state, and our program may have very different requirements or processes than your previous in-home care program.

    Your Government Benefits Amount May Have Changed

    Government benefits like Medicaid and Supplemental Security Income (SSI) are essential lifelines for individuals with special needs. However, eligibility requirements and benefits amounts can vary significantly from state to state. A move to another state could potentially disrupt your loved one’s access to these critical programs if your plan isn’t modified accordingly.

    It’s essential to have your loved one’s income and asset limits reviewed in light of these programs and submit any necessary paperwork to update your residence and income levels with our state’s Supplemental Security Income (SSI) office. This ensures your loved one is receiving the right financial support from this program.

    For example, your loved one may have received an extra $49 a month in SSI benefits if you lived in Connecticut, but they may be eligible for an extra $140 a month in SSI if you moved to Delaware.

    Guardianship of Your Loved One May Need Modification

    If you were appointed as a permanent guardian of your loved one in your previous state, you should have your guardianship status reviewed here. Different states have varying procedures and criteria for guardianship appointments, making it essential to review and possibly modify your guardianship arrangements to ensure they align with our state’s requirements.

    For example, a backup or co-guardian may have been court-appointed in your previous state, but if that co-guardian didn’t move with you, you’ll need to seek the appointment of a new co-guardian as soon as possible. This is essential to ensure there’s no disruption in your loved one’s care if you die or become incapacitated.

    Special Needs Trust Requirements Can Differ

    Special needs trusts play a pivotal role in securing your loved one’s financial future while preserving their eligibility for government benefits. However, every state has different laws for managing a special needs trust and reporting it to government agencies, so the effectiveness and compliance of your trust might be jeopardized if it was designed under different state laws. 

    Reviewing your trust with a knowledgeable special needs planning attorney will help ensure it conforms to the specific regulations of our state.

    Ensuring a Seamless Transition for You and Your Family

    Relocating is already a significant life event, and the last thing you need is added stress and uncertainty regarding your loved one’s future. Having your special needs plan reviewed promptly after you move or even before you move will provide peace of mind knowing that your family’s interests are adequately protected during this transition period.

    As you settle into your new home, remember you don’t have to navigate this complex process alone. I’m here to guide you every step of the way. 

    My expertise lies in understanding the intricacies of our state laws and ensuring the special needs plan in place for your loved one remains robust and effective no matter where life takes you.

    To learn more about how I can ensure your special needs plan is updated according to our state’s rules (and continues to stay up-to-date), call me today at (650) 600-1735.

    This article is a service of Jeannette Marsala, Personal Family Lawyer. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, during which you’ll get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.

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