Navigating TennCare/Medicaid: What You Need to Know
What is TennCare? What’s the difference between that and Medicaid? How do you know if you’re eligible for it, and what can you do about it if you aren’t?
Fear not, dear reader, we’ll answer all of those questions and more as we dive into what you need to know about TennCare/Medicaid!
What is TennCare/Medicaid?
Simply put, each state has a name for its own Medicaid program. TennCare is the state of Tennessee’s Medicaid program. It’s a way of saying “Tennessee Medicaid” in fewer syllables.
In terms of what TennCare actually does, it’s a healthcare program that provides medical assistance to low-income individuals, pregnant women, children, and individuals with disabilities. It is funded by both the Tennessee and federal governments, and the primary goal is to ensure that everyone has access to essential healthcare services.
Who is eligible for TennCare?
To be eligible for TennCare, you have to meet specific income requirements and fall into a certain category. If you’re a low-income adult, a child, a pregnant woman, an elderly individual, or an individual with a disability, you’re in an eligible category. However, you still need to qualify based on your specific circumstances and resources available within the program.
Why is it important to understand TennCare?
Understanding TennCare (Medicaid) is crucial because it can provide you and your family with affordable access to healthcare services.
Most seniors are on a fixed income. The median retirement income for Tennesseans is just under $2,000.00-but the cost of a nursing home averages around $7,500 a month. Even if your loved one has savings that can be allocated toward their care, those savings can be depleted quickly. Knowing the eligibility criteria, application process, and coverage options can help ensure that those in need can receive the necessary medical care.
At Graceful Aging Legal Services, we have experience with TennCare applications. We’d be happy to discuss how you can protect your savings and your spouse while still qualifying for TennCare. Another good resource is Tennesse Justice Center, if you’ve got any questions.
What’s Covered?
The purpose of TennCare is to make sure that you have access to essential healthcare services that help you to maintain your well-being. With that in mind, there are a wide range of medical services covered under TennCare. However, some services, like nursing home care, require further application.
Services include:
Doctor visits, hospital stays, preventative care, and emergency services
Prescription drugs for managing health conditions
Counseling, therapy, and other treatments for mental health conditions
Dental and vision care
Applying for TennCare/Medicaid
Find out about the application process and what documents and identification information you’ll need to apply – and what not to do, so you can avoid delays.
Application Process
Applications are no one’s idea of a good time, but they are unfortunately necessary for TennCare. Luckily, the process isn’t as grueling as it used to be. You can do it online, by mail, over the phone, or in person, so pick whatever is easiest for you. If you have questions about the process or want someone to help you through it, that’s what we do for some of our clients!
To make the process easier, prepare all of the documents and information that will be needed for your application ahead of time. That will make filling out the actual paperwork go by much faster!
Required documents and information
Documents to prepare:
Identification documents
Medical history
Proof of income
Health insurance information
Information to have on hand:
Social security numbers of everyone applying
Dates of birth for everyone applying
Current income
Current address
Contact information
Citizenship and immigration status
Car and property value
Bank and financial statements (3 months)
Vehicle title (Kelley Blue book value)
Life insurance policy information
Common mistakes to avoid
Mistakes mean delays or denials of coverage, so here are major mistakes to avoid:
Providing incorrect or incomplete information
Failing to include required documents
Not reporting changes in income or household size
Transferring property or making large gifts
Sharing bank accounts and funds with someone other than a spouse
Renewing and Managing TennCare/Medicaid
Here are the key steps to renew and manage your TennCare plan.
Renewal process
TennCare coverage is not permanent and needs to be renewed periodically. TennCare will try to renew your coverage using the information they already have on file, but they may need further information. Keep an eye out for a renewal packet, and fill out the required information as soon as possible.
Reporting changes in income or household
It is essential to report any changes in income or household size to TennCare. These changes can impact eligibility and may require you to update your information or submit additional documents. Failing to report changes promptly can lead to complications in coverage.
Appealing decisions
If your TennCare application or renewal is denied, there is an appeals process in place. This allows you to challenge the decision and provide further information or evidence to support your eligibility. If you get to this point we recommend working with an advocate, such as a lawyer or non-profit agency like the Tennessee Justice Center.
Want to Know How We Can Help You Qualify for TennCare?
Graceful Aging Legal Services is here to help! Contact us today to set up an appointment to talk about TennCare and estate planning, or caring for someone who needs advanced care without the resources to pay for it.
Aging often comes with increased healthcare costs and healthcare costs impact everyone—regardless of income level. Miller Trusts are a legal tool that helps individuals with high income qualify for Medicaid long-term care benefits. With a Miller Trust in Tennesee, you can become eligible for TennCare even if you are over the “income cap” set by the state.
What is a Miller Trust?
The Medicaid program (called TennCare here in Tennessee) typically requires limited income to qualify. A Miller Trust is a legal arrangement designed to help those with high income qualify for Medicaid long-term care benefits. By establishing a Miller Trust, also known as a Qualified Income Trust, you can redirect your income into the trust, your income then becomes exempt from Medicaid income calculations.
Why are Miller Trusts Used in Tennessee?
Tennessee is an “income cap” state for Medicaid. That means that those who have income above the cap will not qualify for TennCare. Miller Trusts are used primarily as a tool to create eligibility for Medicaid/TennCare even when you might have too much income. There are times when assets may fall within Medicaid eligibility requirements while income exceeds eligibility limits. In this case, a Miller Trust can help.
Without a Miller Trust even when assets meet eligibility requirements, income may exceed the limits for Medicaid eligibility. By redirecting income into a Miller Trust, you can effectively reduce your income for Medicaid eligibility purposes, ensuring you can receive necessary long-term care benefits.
The Benefits of Miller Trusts
There are several key benefits associated with establishing a Miller Trust.
Qualifying for Medicaid
The primary benefit of a Miller Trust is that it allows individuals with middle to high income to qualify for Medicaid long-term care benefits. A Miller Trust provides a way to legally redirect income into the trust effectively lowering income for Medicaid eligibility purposes.
Preserving Income
Miller Trusts also provide a means to preserve income. Instead of having to find a way to reduce your income to meet Medicaid’s income requirements, you can redirect your income into the trust. This ensures you can continue to receive your income while still qualifying for Medicaid long-term care benefits. It provides a way to maintain some financial flexibility while accessing the necessary healthcare coverage.
The Process of Setting Up a Miller Trust
The process of setting up a Miller Trust involves several key steps.
Gathering Financial Information
The first step in setting up a Miller Trust is gathering all relevant financial information. Financial information must be thorough including all income sources and other financial details to create a comprehensive financial report. An effective Miller Trust helps you meet income qualifications for Medicaid. In order for a Miller Trust to work for you it is critical to have an accurate understanding of your current financial situation.
Selecting a Trustee
The next step, in setting up a Miller Trust is to select a trustee. It is important to choose someone who possesses good organizational skills, excellent financial management, and will always prioritize your best interests. Opting for a trustee (typically a family member) who works with a lawyer who has a focus on Medicaid planning to set up the trust ensures they can adeptly navigate the intricacies involved in establishing a Miller Trust. Once the trust is established, it’s usually not too difficult to care for the account.
Creating the Trust Agreement
Once a trustee has been selected the next step is to create the trust agreement outlining the terms and conditions of the trust, including how income will be deposited into the trust and how it will be used for qualified expenses. Consulting an attorney experienced in Medicaid planning is crucial to ensure that the trust agreement is drafted correctly and in compliance with all applicable regulations.
Funding the Trust
After the trust agreement has been created and signed, the next step is to fund the trust. This involves transferring income into the trust, which will then become exempt from Medicaid’s income calculations. This typically involves setting up your Social Security to be direct-deposited to the trust account. You can likely do this online if you have an online account with the Social Security Administration.
It is essential to follow all necessary procedures and guidelines when funding the trust to ensure that it is done correctly and in compliance with Medicaid regulations. Make sure you work with a banker who is familiar with Miller Trusts to be sure that all regulations are followed and ensure that all necessary documentation is provided. Your attorney should be able to provide recommendations for banks they have successfully worked with in the past.
Meeting Medicaid Requirements
Finally, meeting all Medicaid requirements is essential. Income limits, reporting, documentation and any other Medicaid requirements must be met for a Miller trust to be effective. Consulting with an attorney with experience in Medicaid planning can help ensure all requirements are met.
Managing a Miller Trust
Once a Miller Trust has been established, proper management is essential. Here are a few key considerations.
Using Trust Funds for Qualified Expenses
The funds in a Miller Trust should be used exclusively for qualified expenses. This includes medical and long-term care costs that are not covered by Medicaid/TennCare. For example, if Medicaid covers one set of dentures every two years but you lose yours before it’s time to get a new set, you can use it to cover another set of dentures. It is important to keep accurate records of all expenses paid from the trust to ensure compliance with Medicaid regulations.
A trust can also be used for professional expenses. For example, a Miller Trust can be used to pay for legal fees.
Keeping Accurate Records
Record keeping is a vital aspect of managing a Miller Trust. Accurate records of all income deposits, expenses paid and other trust related financial transactions are necessary for proper trust management. The records are required for ongoing compliance as well as the TennCare redetermination period when you will need to submit proof that you still financially qualify for TennCare/Medicaid.
Reporting to TennCare/Medicaid
As a Miller Trust beneficiary it is important to report any changes in income or financial circumstances to TennCare/Medicaid if there is a significant increase. This includes significant increases in income sources, the amount of income deposited into the trust, and any other relevant financial changes. By keeping Medicaid informed – and by getting in touch with an experienced Medicaid attorney – beneficiaries can maintain their eligibility and continue to receive the necessary healthcare coverage.
For example, if you get a Miller Trust and then get an inheritance, you may no longer be eligible for TennCare/Medicaid. However, at that point, it would be wise to talk to an experienced Medicaid attorney, because they may be able to help you if you notify them quickly and before the inheritance is received.
Potential Challenges and Considerations
While Miller Trusts can be a valuable tool for Medicaid planning, there are some challenges and considerations to keep in mind.
Legal and Financial Implications
When establishing a Miller Trust there are serious legal and financial considerations making it vital to consult with an attorney who has Medicaid planning experience. An experienced attorney will help ensure all legal requirements are met and help you fully understand the implications of a Miller Trust.
Estate Recovery
In all cases, Medicaid will seek to recover expenses paid on behalf of a Miller Trust beneficiary from the beneficiary’s estate after their passing. In other words, anything in the Miller Trust at the end of life will go to the TennCare/Medicaid office This is known as estate recovery. It is important to understand the potential implications of estate recovery and to plan accordingly when establishing a Miller Trust.
Monitoring Eligibility Requirements
Medicaid eligibility requirements can change over time and it is important to monitor these changes to ensure ongoing eligibility. It’s in your best interest to stay informed about updates and changes to Medicaid requirements.
Consult Graceful Aging Legal Services for Your Miller Trust
Miller Trusts provide an option for individuals who have significant income and want to qualify for Medicaid long term care benefits. If you or someone you love falls into this category, a Miller Trust is an option to divert your income.
In addition to the oftendifficult conversations surrounding estate planning, establishing and managing a Miller Trust can be quite complex and challenging. It is advisable to seek assistance from a lawyer who focuses on Medicaid planning to navigate the process of establishing and managing a Miller Trust.
If you have more questions about Miller Trusts and would like to know if it’s a good option for you or your family, click here to schedule an initial call with our office. We’d love to work with you!
Did Michael Oher need a conservatorship? The real question behind the recent news that Oher requested (and has been granted) a termination of his conservatorship is whether or not he needed one in the first place.
Today we’ll go over the necessary criteria for a conservatorship, and what information courts need in order to grant one. We’ll cover the usual processes for putting a conservatorship in place, and look at how Oher’s conservatorship was different, based on public records available.
Who is Michael Oher?
Michael Oher’s football success began long before his rise to fame. Born in Memphis, Tennessee, Oher grew up in a disadvantaged neighborhood. Through the guidance of the adults in his life, he was able to show his football skills to the right people and become a successful NFL player. This eventually led to the publication of The Blind Side: Evolution of a Game by Michael Lewis, which was adapted into the movie “The Blind Side”.
Understanding Michael Oher’s early years is crucial to grasp the circumstances that led to his conservatorship.
Growing up in a disadvantaged environment, Oher faced numerous challenges. However, he was not without adult guidance. He moved in with the Tuohy family before his senior year of high school with the understanding that they were adopting him.
Recent news articles have made it clear that the adoption didn’t happen. Michael Oher was not adopted, even though he could have been; the state of Tennessee has laws in place that permit adult adoption, which 18-year-old Oher would have been eligible for.
Instead, Michael Oher was placed into a conservatorship run by the Tuohys.
A Quick Look at Conservatorship
There are a few finer points to conservatorship in Tennessee that are important to know.
The Purpose of Conservatorship
Conservatorship is a legal arrangement where an appointed conservator assumes the responsibility of managing the personal and/or financial affairs of an individual who is unable to do so themselves.
This legal process exists to protect vulnerable individuals, ensuring their well-being and safeguarding their interests. There have been ongoing updates to conservatorship law in Tennessee in order to guarantee that a conservatorship is in the best interests of the individual.
The conservator’s job is to manage the personal and/or financial affairs of the individual under conservatorship because they cannot perform those duties themselves. Most commonly, conservatorships are a way for adult children to take care of aging parents when they can no longer take care of themselves.
The Conservator’s Role
A conservator is tasked with making important decisions related to the individual’s well-being, which could include medical care, housing, and financial management. Their responsibilities extend to ensuring the individual’s safety, providing necessary support, and advocating for their best interests.
With the authority granted by the court, the conservator has the power to make significant decisions on behalf of the individual under conservatorship. This often includes medical decisions, which means that taking on a conservatorship requires careful consideration of the individual’s needs and preferences while adhering to legal and ethical guidelines.
Michael Oher’s Conservatorship
Since the court granted a conservatorship over Oher in 2004, the Tuohy’s have been responsible for his important decisions for the past two decades, despite Oher being a legal adult. Now he’s filed a petition to end the conservatorship, which places the motivations and processes behind the original decision under heavy scrutiny.
The big question: did the Tuohys place Oher under conservatorship to protect his best interests, or did they use it to take advantage of him? Could the guidance they provided him have been given without a conservatorship?
One, there has to be an emergency situation, or two, the person under conservatorship has to live with a medically evaluated disability that affects their ability to take care of themselves.
There was no emergency, urgent or otherwise, when Oher was placed under conservatorship, and there was no qualifying disability. In fact, Oher’s order specifically states that he doesn’t have a disability, which raises more questions than it answers.
Without either of those criteria being met, it seems odd that the Court found a conservatorship to be in his best interest. In addition, there was only one court hearing to review the conservatorship, and it did not involve the input of any medical experts.
They also waived the guardian ad litem, which is unusual. The guardian ad litem is an attorney appointed by the court to make a recommendation following an investigation into whether someone needs a conservatorship. They’re the safeguard on behalf of the individual, and the guardian ad litem is hardly ever waived. In the cases where it is waived, it’s typically because the person filing for conservatorship is a biological parent of a disabled adult child who has been cared for by their parents their whole life.
The fact that the guardian ad litem was waived means that there was one less person to look out for Oher’s best interests.
Problems with Oher’s Conservatorship
The main problem with Oher’s conservatorship is that he didn’t know he was under one. He’d been told it was an adoption equivalent, which it was not. When he discovered this in 2023, he started to take steps to end the conservatorship.
While it’s important for young adults to have the guidance of trusted adults, there appears to be no logical reason why Oher couldn’t have made his own medical and financial decisions, which is why this conservatorship is under so much scrutiny. Oher alleges that the Tuohy family has made money from the selling of Oher’s image and life story, which raises questions about the intention of the conservatorship.
The level of guidance and support that Oher received from the Tuohys was not a result of conservatorship. Adult adoption and even just mentoring are two common ways to provide the same level of guidance and support provided by the Tuohys without legal oversight by the courts.
Conservatorships are Intended to Improve Quality of Life
The purpose of conservatorship in the state of Tennessee is to improve the quality of life for the person under conservatorship. Since the time that Michael Oher’s conservatorship was granted, there have been some changes to the process of obtaining a conservatorship, but it is generally the same as in 2004 when Oher’s conservatorship was granted.
Today, a judge has to find that conservatorship is the least restrictive alternative for the individual. If the individual has the ability to understand and sign a power of attorney that would fulfill the same intentions of those filing for conservatorship, the conservatorship is unlikely to be granted.
Get Help Understanding Conservatorship Today
Though there are plenty of questions surrounding Michael Oher’s conservatorship, there are laws in place to prevent a situation like this from happening.
Used properly, a conservatorship can be a helpful legal process to improve the quality of life and care for your loved ones. If you want to discuss whether conservatorship may be right for your situation, Graceful Aging Legal Services is here to help. Schedule a call with us today to start the conversation about what’s best for your loved ones.
Everyone’s heard about it: a celebrity dies and their relatives come out of the woodwork, insisting that they deserve some piece of the estate. Even though most of us aren’t celebrities, it happens in otherwise happy families too, so let’s talk about what you can do to prevent it.
In fact, it happened in April’s family and led her to work with clients to prevent this exact scenario. By planning ahead for the transfer of your estate assets, you can ensure that your loved ones needs are met and that your hard-earned assets are protected for those you intend to get them!
This blog post will help you keep the peace, even after you’re gone.
Identifying Assets
Identifying and understanding how your assets pass after your death is one of the most important aspects of estate planning. This includes a review of any real estate that you own so that you can transfer it to your heirs.
Other assets to consider when making an estate plan include bank accounts, investment accounts, retirement accounts, and life insurance policies. Assigning beneficiaries for these types of accounts helps transfer assets quickly and smoothly but needs to be done in the context of your plan as a whole.
It’s also important to think about succession plans for any businesses where you have a role as an owner or investor. Valuable belongings, like jewelry, artwork, and sentimental items should be properly allocated in your will, trust, or even before you die as part of your estate plan. By identifying these assets you can create a well-rounded estate plan that safeguards your legacy, alleviates burdens for your loved ones, and ensures the effective execution of your intentions.
Choosing Beneficiaries
Our firm is probably a little different than most when it comes to naming beneficiaries. Most people will leave everything to a spouse and children, which is good because you can’t disinherit your spouse or minor children in the State of Tennessee.
However, outside of that, you’ll hear April tell everyone “No one is entitled to an inheritance.” (Yes, she tried to talk her own parents out of the typical distribution plan.) If you are part of a historically marginalized community, it may be important to you to pass on generational wealth, and that’s a great plan!
But there’s also nothing wrong with bypassing your immediate family in favor of a charitable organization that works towards a mission that you feel strongly about. Since Eliza Hamilton married one orphan and adopted another (in addition to founding the first private orphanage in New York City), it would have made sense for her to donate some of her fortune (were any of it left) to the orphanage upon her passing.
While pets can’t inherit outright in Tennessee, don’t forget that you can set up a pet trust to care for them when you’re gone or leave money to someone as your furry friend’s “caretaker.” You may also have close friends or more remote family members that you want to leave gifts to.
Remember, there are no “wrong” beneficiaries, except maybe Warren Buffett. The Oracle of Omaha has enough already- and he’s leaving it to charity!
Getting legal documentation in order will help prevent misunderstandings and disputes about your assets. Regularly reviewing and updating your choices guarantees your intentions align with evolving circumstances. For example, if your favorite nephew developed a severe gambling addiction, you may not want to allocate as much of your estate to him. When choosing beneficiaries, you want to reflect your values and leave a lasting positive impact on your loved ones and the causes you support.
Considering Taxes
Tax responsibilities are an inevitable part of life, and they can occur in death too.
Understanding estate taxation and knowing tax thresholds can help you determine the taxes your estate may be subject to. A firm grasp of tax thresholds can help you create a plan that helps you maximize the distributions to your beneficiaries, rather than the government.
For most Tennesseans, taxes will need to be paid on your income from the final year of your life, and withdrawals from any retirement accounts that were tax-deferred, like 401ks and traditional IRAs. However, since 2016, Tennessee does not have an estate tax and the federal estate tax only applies to estates that have multiple millions of dollars. The federal estate tax limit changes sometimes, so you’ll want to consult with an attorney about your tax exposure – and maybe follow our newsletter for updates. *wink*
Some strategies can help you reduce your tax liability, helping your beneficiaries in the long run. For example, making gifts or transferring assets during your lifetime can reduce the value of your taxable estate, but should be discussed with an attorney first.
By aligning your estate planning with tax thresholds, you can ensure your loved ones receive the maximum inheritance possible while preserving and passing on your wealth and intentions to future generations.
Updating and Reviewing Your Estate Plan
Regularly keeping your estate plan up to date is crucial to ensure your goals are met. It’s important to review it every few years so that you can make necessary adjustments based on changes in your life.
Life events like marriages, births, divorces, or financial changes may require updates to beneficiary designations or how your assets are allocated. If Junior’s wife divorced him for his best friend, you’re probably not going to want to give her part of your estate.
If you move, make investments, or start a business venture, it’s also an idea to reassess your plan. You’ll want to have a clear plan in place if you die while owning a business – without a succession plan in place, you have no control over what happens to your business after you die.
A flexible estate plan takes into account evolving family dynamics, financial situations, and personal goals so that your intentions are consistently honored.
Seeking Professional Assistance
Wading through estate planning with no experience is extremely overwhelming. A lot of care is required, in addition to an in-depth knowledge of the laws and your rights. An experienced estate planning attorney brings legal expertise to the table, aiding in the creation and validation of documents like wills and trusts.
Working with a Tennessee estate planning attorney ensures your estate is customized according to your desires and adheres to relevant laws. You’ll be better equipped to organize your assets, plan investments, and ensure a smooth transition for your family. Together you can navigate complexities and come up with an estate plan that honors your legacy.
Preserve Your Legacy with Graceful Aging Legal Services
At Graceful Aging Legal Services, we have caring and knowledgeable estate planners who can help you direct your assets to the people and causes that are most important in your life. For more information about estate planning and how it can help you preserve your legacy, contact us. We’re dedicated to providing you with the guidance and support you need to navigate the complexities of estate planning.
Conservatorship is a legal status granted by a court to a person to manage financial and/or personal affairs for another person. Conservatorships are typically used to give a family member or close friend the legal authority to make legal decisions on behalf of someone with a disability. This may include a special needs adult child, a person living with dementia, or other medical conditions that impact day-to-day life., etc. The person granted the conservatorship is known as the conservator, and the person whose affairs are managed is called the conservatee. (You may also see them referred to as the “ward” or “respondent” in a legal context.)
Conservators are appointed for many reasons, including a variety of medical conditions, inability to recognize fraud, or if a power of attorney document is invalidated or abused. With great ability comes great accountability, so it’s important that conservators carefully adhere to their legal obligations. Conservatorship is overseen by the courts, so transparency and accountability are vital. A conservator can hold extensive legal power concerning the conservatee’s financial and personal life.
Types of Conservatorship
There are multiple options for establishing a conservatorship, and each one impacts what that conservator or conservatee is responsible for and capable of doing after a conservatorship is granted. The semi-recent dispute between Britney Spears and her father brought to light everything that can go wrong in a conservatorship. If you wondered about what type of legal proceeding Britney was involved in, below is a list of different types of conservatorship. At one point or another, Britney was involved in each of them under the California case.
Here’s what the equivalent cases look like in Tennessee:
Conservatorship over the Person: In a conservatorship over the person, the conservator has complete control over the conservatee’s health and physical life, including healthcare and living arrangements. This includes deciding what treatments the conservatee undergoes, whether they’re placed in a care community, etc.
Conservatorship over the Property: In a conservatorship over the property, the conservator has complete control of the conservatee’s financials, including bill payment, day-to-day cash flow, and management of all financial accounts. When this type of conservatorship is granted, the conservatee only has access to their financial accounts with authorization from the court.
General Conservatorship: A general conservatorship is comprehensive, giving the conservator complete control of the conservatee’s person, property, and all other significant life decisions. This is the type of conservatorship that is appropriate for most families.
Traditional Conservatorship: Traditional conservatorships are expected to last for the lifetime of the conservatee. Terminating a traditional conservatorship can occur if a conservatee can legally prove they no longer need assistance. In fact, the conservator has a duty to notify the Court if assistance is no longer needed under the requirement that a conservatorship should be the “least restrictive alternative” able to protect and provide for the conservatee.
Emergency Conservatorship: An emergency conservatorship is limited to a time period of 60 days for the purpose of addressing urgent or specific needs of the conservatee during a short period, for example if someone had immediate injuries from an accident but was expected to recover. It is not unusual for these types of conservatorships to be used while the urgent matter is resolved and then converted into a traditional conservatorship.
Establishing a Conservatorship
The first step involves discussing your situation with an attorney who practices probate law in your area. Based on your understanding of your loved one’s condition, the attorney will be able to discuss your options. If they recommend that a conservatorship is appropriate, they will then walk you through which type of conservatorship would be best and next steps.
Once you hire an attorney, the next steps usually involve obtaining medical proof of the need for a conservatorship, known in Tennessee as a “Report of Physician.” The more medical and financial information you can provide about the intended conservatee, the easier this will make your case (and less expensive!).
The process for petitioning the court for conservatorship can vary depending on the state. An experienced attorney will help you navigate through the complexities of this procedure, providing insight and clarity about legal proceedings.
The Role of the Conservator
Being a conservator requires responsibilities for the well-being of the person under conservatorship. Because most conservators manage both the person and property of the conservatee, this means handling bill payments, making investment decisions, applying for eligible benefits, making healthcare choices, and ensuring their welfare. The conservator’s duty is to act in the best interest of the individual under their care by considering the conservatee’s needs and as well as their preferences when making decisions.
Conservators are expected to adhere to specific guidelines and regulations set by local laws and courts. In Tennessee, conservators are required to file regular updates on the financial and medical status of the conservatee. They also must seek court approval for certain matters, like selling valuables or making big ticket purchases (usually over $500.00). It is essential to maintain records of all transactions concerning the assets and finances of the person under conservatorship.
These duties add a layer of transparency, protection, and accountability, and alert the court to set a conservatorship for review hearing when there are concerns or significant changes to the situation.
To effectively provide support and assistance, conservators must have an understanding of the physical well-being of the individual under conservatorship. Professional evaluations will be helpful in identifying any healthcare needs. When making decisions on behalf of the conservatee, conservators should consider the stated values, preferences, and wishes of the conservatee, but may ultimately have to make a decision that the conservatee is unhappy with.
Understanding the Conservatee
A thorough understanding of the conservatee’s mental and physical health is vital to help determine the level of support and assistance needed. Maintaining an open line of communication with medical providers will help identify specific healthcare needs. If a conservatee has existing healthcare providers, such as a primary care physician, the conservator should begin working with those providers so long as they can work together in the best interest of the conservatee.
Whenever possible, involving the conservatee in decision-making throughout the process can help ensure their dignity and autonomy are respected. In the same way that a ghostwriter is expected to write as the client wishes, a conservator is expected to make decisions that align most with what the conservatee wants and needs. It’s not about the conservator, after all – it’s about ensuring that the conservatee is well cared for.
The Conservatorship Process
To become a conservator in Tennessee, you must first file a petition with the court that handles probate matters in the county where the proposed conservatee lives. This is done through the court clerk. In most Tennessee counties, conservatorships are heard in Chancery Court, although they may also be heard in Circuit Court or General Sessions Court.
Most local rules will require you to work with an attorney to file a conservatorship. Choose an attorney who has experience handling conservatorship matters, who understands your goals, and who is a good personality fit for you. Once the conservatorship is set up, you will continue working with your attorney until the conservatorship is terminated, so it’s good to find someone who you can work with for the long term. Your attorney will collect information about you, your family, and the proposed conservatee in order to prepare the petition. If you have knowledge about the conservatee’s medical and financial situation, you will want to provide that information to your attorney as soon as possible. The court reviews the petition and appoints a Guardian ad litem (or “guardian for the case”) to investigate the facts laid out in the petition. At this point, they will usually set the hearing on the petition for about 45-60 days after the petition is filed.
The Guardian ad litem acts as the “eyes and ears of the Court.” They will interview you, speak with the proposed conservatee, review medical and financial records, and talk to other people who may have information about the situation, such as relatives or neighbors. Their job is to answer two questions. One, does the proposed conservatee need a conservatorship? Two, if a conservatorship is needed, who should serve as the conservator? The Guardian ad litem will make a written report to the Court on these two questions and may also make other recommendations, such as how much an insurance bond should be set for, whether property should be sold, or other matters relating to the appointment of a conservator.
During court hearings, the judge considers all relevant evidence. Judges are only allowed to consider evidence that is considered “admissible,” so your attorney may ask you to help gather certain records depending on what challenges they expect. Remember that the proposed conservatee has certain rights under due process, and may have an attorney appointed for them to challenge the conservatorship if they do not think it is needed. Other family members may also get involved. This is why it is so important to work with your attorney to anticipate and prepare for the hearing.
If the court determines a conservatorship is in the conservatee’s best interest, the judge will enter an Order appointing a conservator. At that point, the conservator assumes the responsibilities and duties outlined by the court and carries them out. Again, they do this keeping in mind the best interest and preferences of the conservatee – even if this means going against what they would personally choose to do in a similar situation.
Managing Finances and Assets
Conservators are responsible for managing the conservatee’s finances and assets. Financial management includes:
Creating a budget that aligns with the conservatee’s needs and resources.
Ensuring all necessary expenses are covered.
Making financial decisions to preserve and grow the conservatee’s assets, including investment decisions.
Ensuring the Well-being of the Conservatee
Conservators play a role in ensuring that the conservatee has access to healthcare and they are empowered to make important medical decisions on behalf of the conservatee. They are responsible for selecting doctors, scheduling appointments, consulting with healthcare providers, advocating for the conservatee’s healthcare needs, and utilizing health insurance and other benefits appropriately.
It is important for conservators to be familiar with the services and resources available to conservatees in their community. These resources may include government assistance programs, support groups, counseling services, and educational materials. By connecting the conservatee with these resources, conservators can promote their well-being. This ultimately improves their quality of life.
Termination of Conservatorship
There are situations in which a conservatorship can come to an end. For instance, if the person under conservatorship shows improvement in their condition and regains their ability to make decisions. The more common reason to terminate a conservatorship is when the conservatee dies.
Terminating a conservatorship is a process that usually involves filing a motion with the court and presenting evidence and documents to support the request. It typically requires a hearing.
If the conservatee is asking for the conservatorship to be lifted because their situation has improved, the court will assess whether there is sufficient evidence for termination, considering what is in the best interest and well-being of the person under conservatorship. Often times if a person is no longer in need of a conservatorship, their conservator will work with them and the court to terminate the conservator and allow them to sign a Power of Attorney instead.
Graceful Aging Legal Services
Do you need help navigating the complexities of conservatorship? Graceful Aging Legal Services offers comprehensive legal assistance for adults. Contact us today if you need help with estate planning, wills, trusts, or understanding conservatorship. Our experienced team is ready to help your family.
Have you said ‘I do’ recently and are beginning the exciting journey of wedded bliss? Understandably, as a newly consolidated duo, estate planning techniques might not top your list. But did you know the importance financial management and estate planning holds in safeguarding your shared future? Let us guide you to financial serenity and legal obligation smoothening activities.
We understand that marriage is a joyous milestone, and with it comes the excitement of starting a new life together. However, it also brings a range of financial and legal responsibilities that may require careful consideration. As two lives intertwine, so do their finances and assets. Proper financial and estate planning not only allows newlyweds to manage their money effectively but also ensures the protection and distribution of their assets should the unexpected occur. By taking proactive steps now, couples can safeguard their financial interests and pave the way for a prosperous journey together.
Key Financial Factors
Combining finances can foster transparency, build trust, and simplify money management. However, it’s essential to address individual financial habits, expectations, and goals to create a seamless financial partnership. While you may not choose to place all your money into joint accounts, creating a joint account for shared expenses might be a good place to start. Work with your partner to craft a budget that aligns with both of your priorities and allows you to save for future goals. Don’t forget to set aside funds for personal interests, too.
With marriage also comes the need to reassess insurance coverage. Do your existing policies provide adequate protection for both of you and any dependents? Regardless of outside employment, be sure to take into account the work each spouse does around the home and what it might cost to replace that in the event of an accident or incapacity. Take this time to also review beneficiary designations on these accounts to help safeguard each other’s financial well-being and ensure your policies are set up how you would like them to be.
Many of us carry debt, and when we get married, it comes too! Addressing existing debts requires planning and coordination. Which debts will be shared and which will be tackled individually? We recognize that managing joint debts can be a delicate task, but it’s an important topic to create a plan for as soon as you can.
Action Items:
Discuss how you want to manage your finances- joint, separate, or a combo?
Evaluate and consolidate insurance policies- life, health, home, auto, etc.
Review and update beneficiary designations on insurance and retirement accounts
Discuss plan to address debts brought into the marriage and how you plan to handle debt during your marriage
Key Legal Considerations
Though it might not feel urgent, now is a great time to create or update your estate plan! Creation of a Last Will & Testament ensures that each spouse’s wishes regarding asset distribution are carried out after their passing. One common misconception is that your assets automatically pass to your spouse after your death; this is not always the case, but a will can help ensure that your wishes are followed.
Another crucial part of your estate plan are the Power of Attorney documents. Used in the event you are unable to make financial or healthcare decisions for yourself, these documents allow a trusted individual to act on your behalf. While you are not required to name your spouse as your Power of Attorney, it is an easy way to empower them to act in the event of an unexpected emergency. These documents can be written in a way that clearly defines a Power of Attorney’s role and abilities, and they should be reviewed regularly.
Action Items:
Create or update your will or trust to address your new marital status
Create or update your powers of attorney
Key Tax Considerations
The last major consideration after getting married is in regards to tax planning. There are a variety of tax filing statuses available for married couples, and if you are married as of December 31, the law says you were married for the whole year for tax purposes. If you are planning to change your name after marriage, be sure to report it to the Social Security Administration as soon as possible. Your name on your tax return must match what is on file at the SSA; if it doesn’t, it could delay your refund!
Another thing to review are your withholding amounts. Newly married couples must give their employers a newForm W-4 within 10 days of their marriage. If both spouses work, you may move into a higher tax bracket. TheTax Withholding Estimator on the IRS website is a great tool to use as you complete your new W-4. Proper tax planning can lead to substantial savings!
Action Items:
Change your name on all relevant government documents if you plan to
Consider whether taxes will be filed jointly or separately
Update your tax documents with your employer
Proper financial and estate planning is an essential step for newlyweds to set the stage for a secure and prosperous future together. By understanding and addressing the financial changes that come with marriage, establishing a comprehensive estate plan, and optimizing their tax situation, couples can embark on their journey hand-in-hand, prepared for whatever life may bring. Being proactive today brings peace of mind for tomorrow!
If you’re ready to take the next step as a couple,click here to schedule an initial call with our office. We’d love to work with you as you create your estate plan and set goals for your life together!
Being a parent to a special needs child is a journey filled with unique joys, challenges, and responsibilities. As you navigate the intricacies of caring for your child’s specific needs, it’s crucial to plan ahead to ensure their well-being and quality of life in the years to come. By taking proactive steps and establishing a comprehensive plan, you can provide a secure future and peace of mind for both you and your special needs child.
We will explore essential considerations and practical strategies to help you plan ahead for your special needs child. From financial planning to legal arrangements and support networks, we want to guide you through the process of creating a holistic plan that addresses your child’s specific needs.
Understand Your Child’s Needs: Start by gaining a thorough understanding of your child’s unique challenges and abilities. Consult with healthcare professionals, therapists, and educators who can provide valuable insights and assessments about how your child’s medical condition is likely to affect their development. It’s important to understand your child’s medical condition as it currently is, as well as how it will progress over the coming years. This knowledge will form the foundation of your planning process, helping you identify the areas where your child requires additional support and assistance.
Create a Financial Plan: Financial planning is crucial when it comes to securing your child’s future. Explore resources such as government assistance programs, insurance options, and special needs trusts. Consider working with a financial advisor experienced in special needs planning to develop a comprehensive financial strategy that accounts for long-term care, education, therapy, and other necessary expenses. One great option in Tennessee is an ABLE account – this savings/investment account is exclusively for disabled individuals and does not count against benefits that may have financial restrictions.
Establish a Legal Framework: Ensure you have the appropriate legal arrangements in place to protect your child’s interests. This includes creating a special needs trust, designating a guardian or caregiver, and documenting wishes for medical decisions. Consult with an attorney experienced in special needs law to ensure your legal documents align with your child’s specific requirements and comply with local regulations.
Build a Support Network: Seek out support networks and connect with other parents and families who have special needs children. They can provide valuable guidance, emotional support, and share resources and insights. Additionally, explore local organizations, advocacy groups, and community services that cater to the needs of special needs individuals. Additionally, you’ll want to make sure that you are taking care of yourself! Organizations like Tennessee Respite Coalition can work with you to create a plan to rest and recharge, which all parents need but becomes more important for you to be fully present when you are with your child. Building a strong support network will not only benefit your child but also provide you with a sense of community.
Plan for Transitioning into Adulthood: As your special needs child approaches adulthood, it is important to plan for their transition into independent living or alternative arrangements. Explore vocational training, employment opportunities, and housing options that are tailored to their needs. Investigate government programs that offer support and services for adults with special needs, ensuring a smooth transition into adulthood. When your child turns eighteen, you will want to discuss with your attorney whether a conservatorship is needed in order for you to continue having legal decision-making authority or if your child can engage in supported decision-making to ensure that you can continue to help them as your family continues to navigate benefits and resources that are available to them.
Regularly Review and Update Your Plan: As your family gets older each year, you will need to anticipate the financial, emotional, and social needs of your special needs child, yourself, and anyone else that you care for. Your child may have siblings who should begin to be included in a care plan as they become adults. Many adult siblings or other family members provide care and guidance when a special needs child loses their parents. Your child’s needs, circumstances, and available resources will change over time. Therefore, it’s essential to review and update your plan periodically. Stay informed about new laws and regulations that may impact your child’s benefits or financial planning. Regularly reassess your financial situation, adjust your goals, and ensure that your plan remains relevant and effective.
Planning ahead for your special needs child requires careful consideration and proactive action. By understanding your child’s needs, creating a comprehensive financial plan, establishing legal arrangements, building a support network, and planning for their transition into adulthood, you can ensure a secure and fulfilling future for your child.
If you are ready to learn more about your legal options and requirements when it comes to caring for your special needs child, especially as they reach adulthood, click here to schedule an initial call with our office. Speaking with an experienced attorney can help provide peace of mind as you continue caring for your child and planning for their future.
Remember, you are not alone on this journey. Reach out to professionals, support groups, and organizations specializing in special needs care. Their expertise, guidance, and shared experiences can provide invaluable support as you navigate the path of planning for your special needs child’s future. Embrace the opportunities to advocate for your child, empower yourself with knowledge, and take the necessary steps to create a solid plan that supports their unique needs. By planning ahead, you can provide a stable and loving environment where your special needs child can thrive and reach their full potential.
Becoming a parent is a journey filled with immeasurable love and joy, but it also comes with the responsibility of safeguarding your child’s well-being. While we strive to protect our children from harm, life can be unpredictable, and it is essential to plan for their future. One aspect that often requires thoughtful consideration is guardianship – the legal and practical arrangements for your child’s care in the event of unforeseen circumstances.
Guardianship is a topic that can be challenging to approach, as it forces us to confront difficult scenarios. However, by proactively thinking about guardianship at different stages of your child’s life, you can ensure their continued safety, care, and stability should anything happen to you or the other parent.
For example, let’s say a woman named Lorelai has a daughter named Rory. Rory’s dad, Christopher, is very irresponsible and is in and out of Rory’s life.
When Rory is 5, Lorelai is in a horrible accident. Fortunately, she has lots of life insurance to care for Rory in just this scenario. Unfortunately, Tennessee law makes Christopher Rory’s guardian and Lorelai did not have any documents providing for who should handle Rory’s money until she becomes an adult. Rory now goes to live with Rory and Christopher’s new girlfriend, Sherry, who promptly enrolls her in boarding school in Switzerland. The Court also rules that Christopher, as Rory’s dad, gets control of the money that Lorelai left for her.
Christopher means well, but he uses Rory’s money to pay for things that Lorelai wouldn’t approve of, such as a pony, a sidecar for his motorcycle, boarding school and other things that are fun. As a result, when Rory graduates high school, there is no money left for her trip to Fez or college tuition.
Lorelai’s parents, Emily and Richard, end up having to pay for Rory’s expenses out of their own pocket, which they are happy to do, but wish that Rory’s funds had been left in the care of someone more responsible, like Lorelai’s best friend, Suki.
In this blog post, we will explore the importance of contemplating guardianship throughout your child’s journey, from infancy to adulthood. We will discuss the key considerations at each stage and offer guidance on making informed decisions that align with your child’s best interests.
Infancy. In the early years of your child’s life, guardianship primarily revolves around immediate care and meeting their basic needs. It is essential to consider individuals who can provide a loving and nurturing environment similar to what you provide. Factors such as stability, proximity, and compatibility should be taken into account when selecting potential guardians.
Childhood: As your child grows, guardianship encompasses more than just physical care. It involves guiding their education, moral development, and emotional well-being. Consider individuals who share your values and can provide a supportive and enriching environment. Open communication and discussions with potential guardians are crucial to ensure they understand your expectations and are willing to take on the responsibility.
Adolescence: Teenage years bring unique challenges, and guardianship takes on a different dimension. It is vital to involve your child in discussions about guardianship, taking their preferences into account. Encourage open conversations about their wishes and desires, and help them understand the importance of having a trusted guardian to turn to during this transformative stage.
Adulthood: As your child transitions into adulthood, guardianship may evolve into a more consultative role. However, it is still important to establish legal arrangements and document your wishes regarding financial matters, medical decisions, and overall support. While your child may have more autonomy, having a designated person to offer guidance and assistance can be invaluable.
Throughout all stages, it is crucial to review and update your guardianship arrangements regularly. Life circumstances change, and the individuals you initially chose as guardians may no longer be the best fit. Stay in touch with potential guardians, keep them informed of any changes, and ensure they are still willing and able to assume the responsibility.
In conclusion, thinking about guardianship at different stages of your child’s life is an essential aspect of responsible parenting. By considering the unique needs and requirements of each stage, you can make informed decisions that prioritize your child’s well-being. Discussing guardianship openly, involving your child when appropriate, and establishing legal arrangements will provide peace of mind, knowing that your child will be cared for by trusted individuals should the need arise.
If you are interested in learning more about how to protect your minor children in the event of your death or incapacity, we’ve designed a program just for you! Our Proactive Parents Group will walk you through considerations and provide you with customized documents for your family. Through four interactive workshops with a licensed Tennessee attorney, you’ll walk away with confidence knowing your family is protected. Be proactive today – click here to learn more and to sign up!
Talking to your parents about aging, illness, and death is hard. It’s one of the hardest conversations you can have–but it’s also one of the most important. The feelings that might come up during the conversation, if uncomfortable, are better than the feelings that would otherwise come up when an emergency happens and there is no plan in place for taking care of them (or even a consensus among relatives on how to move forward). As we always say in our office: “it is better to have a plan and not need it than to need it and not have it.”
With that said, directly asking a loved one “hey, what would happen if you died today?” might not be the best way to start the conversation. So let’s consider some better alternatives to open the conversation about estate planning.
1. Tell your loved one what you’re doing for your own estate planning
Telling your loved one about your own estate plan, or your wishes to create your own estate plan, might make them consider making one themselves. Tell them what is in your Last Will and Testament, whether you have a Trust, and who you have chosen to act as your Power of Attorney. Hearing about your concerns for your own aging and death, and hearing how you’ve decided to navigate the future, will give them an idea of where to start, which is often the hardest part. Many people also struggle to decide on an estate planning attorney. It is important that the Nashville attorney they hire aligns with their needs. Hearing about your own process of hiring an attorney, and how you determined which one would be the right fit for you, can help them navigate the difficult world of hiring a Tennessee Wills and Estate Planning lawyer.
2. Talk about other situations that have happened that worried you or made you curious
Many of us know at least one person who has suffered the loss of a loved one and then had to endure the resulting feud among the family. These feuds happen so frequently that a significant number of fictional stories are based on them. Unfortunately, plenty of them could have been avoided if a clear plan had been put in place. And these feuds rarely start right after the death—many of them start much earlier, when the loved one’s health began to decline and someone had to step up to take care of them. Estate planning does not just mean deciding what happens after you die; it also means deciding what happens if your health begins to decline. If there is no plan in place for declining health, it will be up to the family to decide what happens. Even the closest of siblings can begin to resent one another if they feel that their parents’ care is not being handled properly.
Although it is fictional, the feud in This is Us between the siblings regarding their mother’s care is an accurate portrayal of what can happen in these situations. The siblings argued on what kind of medical treatment their mother should receive, and again on where she should live and who should look after her. Although all of the siblings had the best of intentions and loved each other and their mother, the feud nonetheless happened. The mother sensed the feud would escalate once her diagnosis advanced, and so she decided to name her daughter (her most level-headed child) as her healthcare power of attorney. Although the siblings still butted heads with one another, the daughter was able to carry out her mother’s wishes.
There are plenty of other examples in books and TV of families feuding over a loved one’s care or death. Talking about these hypothetical situations might make it easier to begin the conversation about aging and death.
3. Ask what would happen to their children, pets, and home if they were in a medical emergency
While discussions about aging and death might be intimidating, discussions about medical emergencies might be easier to handle. Medical emergencies can happen to anyone at any time. Our office even recommends that eighteen year olds get power of attorney documents in place, as it is important for them to have someone able to speak to medical professionals on their behalf in the event of an emergency. Since medical emergencies can happen to anyone, loved ones who do not like having their age pointed out might be more receptive to the conversation. If you know your loved one is anxious about having a stroke or falling down stairs, and tends to avoid or shut down conversation about either of those scenarios, it might be a good idea to use another medical emergency in your conversation (like a car accident, for example). While it is important for your loved one to confront their anxieties, it is not always our place to force them into a confrontation. Using a more neutral example (like the car accident) instead of one they constantly worry about might be a good way to ease them into the conversation.
4. Ask if they can show you where their estate planning documents are
After signing estate planning documents with our clients, we tell them to please let their family know their wishes and how to find the original documents. After all, the estate planning documents are only as good as the family’s ability to find them. In the event of a medical emergency or death, the signer of the documents will not be able to locate them. If no one else knows where they are or how to find them, the documents become effectively useless. It is therefore of the utmost importance that loved ones know where to locate the original documents. If you know or suspect that your loved one already has a plan in place, ask them where the documents are and how they plan to transfer the documents into the right hands in the event of an emergency or death.
For more information on how to talk to your loved ones about aging, illness, and death, we encourage you to check out The Conversation Project.
Tennessee law permits you to write your own will. Some people choose to handwrite theirs. Online services are another popular way to create a Will and other important documents inexpensively. As long as the Will meets the legal requirements, it is likely to be admitted to probate court in Tennessee.
However, just because you can do something doesn’t mean you should. Believe me, I love a bargain too- it can be really tempting to find a low cost option for something that is expensive and, well, a little scary. Most people have never met with an attorney before and the idea is intimidating. It’s understandable.
However, a fellow probate attorney once said “online services are a probate lawyer’s best friend.” This is the prevailing thought among probate attorneys, because we see so many Wills that were not prepared by attorneys, and ultimately end up costing the family more in court costs than it would have cost to meet with an attorney and prepare the Will and other important documents.
I like to compare it to pest control. You know that if termites invade your house, it will end up costing tens of thousands of dollars to repair the structural damage they can cause. Would you prefer to pay $150 per year up front to prevent an infestation, or let them do the damage and then pay to fix it?
So let’s look at some of the issues that cause self-created Wills to have problems when we go to court. Here are some of the main pitfalls that we see with DIY wills:
1. Improperly Executed
Unless you have legal training specific to estate law, you may not be familiar with the exact requirements of the type of document you are trying to create. Tennessee law provides for several types of Wills, and each of them have different requirements for signing. Some of them will require witnesses to come to court, which you may want to avoid. Fun fact: No Tennessee law requires a Will to be notarized. Guessing you didn’t know that!
2. Improper use or misunderstanding of terms
A Will uses a lot of terms that we don’t use in everyday life. These words are used to communicate information to the Judge when the Will is probated. However, if you are writing your own Will or using a form, you may not know the effect that these words have in practice. While our attorneys try to use more commonplace language when writing Wills, we need to be able to get your point across. Words like “fiduciary,” “per stirpes,” “per capita,” “ademption,” and “executrix” are not terms we use, but as experienced estate planning and probate attorneys, we know how to use them correctly to carry out the plan you have in mind. In DIY documents, you may ignore terms that you don’t understand that seem to be boilerplate, or may not fully understand the effect that they will have when your plan is carried out.
3. Missing essential elements
I’ll never forget the day that I had to tell someone that they were unable to help their parent because the Power of Attorney that had been created online did not give them authority to do what needed to be done. I wanted to help, but my hands were tied. In another situation, someone hand wrote their Will but left out an essential part. Because we didn’t have any specific instructions from the Will, we had to go to Court multiple times for Court approval to do things that we were pretty sure they wanted. Those court hearings cost the estate more money than it would have to have an attorney help with the original Will.
4. No contingency plan
One of my least favorite things to do is talk to parents about contingency plans. Usually this means asking who would inherit from you if your children died before you did. No one wants to even think about that. But for estate planning purposes, it’s very important to always have a back up plan. We hope for the best and plan for the worst. And that means discussing uncomfortable things.
5. Plans that are not logistically sound
In a social setting one time, someone mentioned to me that they had created their Will online. They were open to sharing about the experience and mentioned that they had named their parents as their beneficiaries in their Will. There’s nothing wrong with this, but it requires some additional thinking through things. Parents are older than their children, and in most situations the children will outlive the parents. At Graceful Aging Legal Services, PLLC, we want to help you create a plan that needs to be reviewed but hopefully requires few revisions except at big transitions in your life. If you pass away without making changes, we want your planning to go the extra mile for you. Let’s say that you name your parents as beneficiaries of your Will, but no back up beneficiaries. You figure you can update it later- but never get around to it. Eventually you pass with no named beneficiaries, which defeats the purpose of making a Will. An experienced estate planning attorney can help you avoid situations like this and worse.
6. No probate-avoidance planning
Another thing people are confused about is thinking that a Will helps avoid probate. It doesn’t. The purpose of a Will is for a probate court to know what you want when you die so they can carry out your wishes. In a meeting with a good estate planning attorney, you will talk about your goals for your assets when you die and create a plan. Oftentimes we are able to guide clients how to avoid probate. One of my favorite things is when someone comes to us for probate and we are able to tell them that good planning means that they don’t need to go to court.
7. Validate of the Will is easier to challenge
Although having options to create a Will yourself may be beneficial to some, it also creates opportunity for bad actors- or the perception that people are acting with impure motives. Imagine a scenario where your neighbor asks you to draft a will off the internet for them to sign. You may be called into Court to testify about how the Will was created, your neighbors medical condition at the time the Will was created, to what extent you helped, and if you inherited anything you’ll be looked at with additional scrutiny. Having a lawyer involved not only protects the Will and the Will-maker, but also the family and friends involved. We know how to prevent claims of undue influence and ensure the Will document is valid.
When you write your own Will, you don’t know what mistakes you might make. Unfortunately, by the time the Will is submitted to probate, you won’t be around to make clarifications. The Court will have to go by what is written in the Will. Your family will be stuck with what you wrote, or risk the Court finding that your Will is invalid and throwing out all of the work you did to create it in the first place. If your family thinks that you didn’t mean what you wrote, they will have to pay additional costs to help the Court figure out what you meant. When that happens, lawyers get more of your money and your family gets less.
We prefer to work with families who get along, and are on the same page when it comes to their loved one’s estate. It makes the probate process (if there is one), easier both emotionally and financially. We don’t like to make money correcting mistakes or with families who have been left in a difficult position. If you find yourself in this situation, we’re happy to help but we’d much prefer that you not be there in the first place.
If you have an online will or were thinking about it, sign up here for our virtual estate planning challenge to think through all of the things you need before you even meet with an attorney.
