ELVILLE AND ASSOCIATES PRESENT: GUARDIANSHIP – STEPHEN R. ELVILLE & ELVILLE AND ASSOCIATES PRESENT: GUARDIANSHIP – WHAT PARENTS NEED TO KNOW By: Stephen R. Elville, J.D., LL.M. – Elville and Associates, P.c. Howard county’s 4th Annual Transitions symposium – “Stop waiting and start planning” Saturday, March 18, 2017

BRIEF OVERVIEW OF TODAY’S DISCUSSION What is guardianship? What are the benefits and drawbacks? What are the questions every family should ask before making the decision to pursue guardianship? What are the nuances of incapacity planning, including the importance of powers of attorney and advance medical directives in the planning process?

What is guardianship?

Guardianship At age 18, an individual is presumed to have legal capacity If loved one lacks capacity to manage personal or financial affairs, a court appoints a guardian or conservator to take control over that person’s affairs Process - described

Guardianship There are two general types of Guardianship: Guardianship of the Person has the care, custody, control, and education of the person; and Guardianship of the Estate (Property) must manage finances and legal affairs

What are the benefits and drawbacks to guardianship?

BENEFITS OF GUARDIANSHIP Ultimate level of control Supercedes powers of attorney and advance directives Guardianship Order Certainty Accountability Court is the ultimate guardian

DRAWBACKS OF GUARDIANSHIP Expense Loss of independence for ward (rights, etc.) Cumbersome and time-consuming Annual accounting Loss of certain flexibility Potential for conflict Process can be challenging

What are the questions every family should ask before making the decision to pursue guardianship?

QUESTIONS (1) Am I prepared to see this through? (2) Am I emotionally prepared for the guardianship process? (3) Do I have the support of family and the physicians?

Understanding the Nuances of Incapacity Planning Powers of attorney advance medical directive molst – medical orders for life sustaining treatment

Advance Medical Directive Will-Based Structure Will Power of Attorney Maryland Statutory Power of Attorney Supplemental General Power of Attorney Advance Medical Directive MOLST Health Care Decision Making Worksheet

Advance Medical Directive Incapacity Planning Powers of Attorney Maryland Statutory Power of Attorney Durable General Power of Attorney Advance Medical Directive MOLST Healthcare Decision Making Worksheet GUARDIANSHIP

WHY IS THE MARYLAND STATUTORY POWER OF ATTORNEY (or others) “NOT ENOUGH”? ”Substantially Similar” requirement too onerous and ambiguous Enhanced fiduciary powers necessary for contemporary estate planning Elder law concerns Planning for loved ones with special needs SPECIAL INSTRUCTIONS PORTION NOT SUFFICIENT

ENHANCING THE MARYLAND STATUTORY POWER OF ATTORNEY UTILIZE A TWO-TIERED APPROACH – TWO POWERs OF ATTORNEY PERSONAL FINANCIAL POWER OF ATTORNEY, ALONG WITH A GENERAL DURABLE POWER OF ATTORNEY UTILIZE REVOCABLE TRUST POWERS IN COORDINATION WITH POWERS OF ATTORNEY BUILDS A BROAD PLATFORM OF FLEXIBIITY UTILIZE SPECIAL AGENT AND TRUST PROTECTOR POWERS COUNSELING IS KEY POTENTIAL PROBLEMS

UTILIZING ENHANCED POWERS POWER TO ESTABLISH REVOCABLE AND IRREVOCABLE TRUSTS Customized further POWERs TO FUND TRUSTS Customized further POWERs concerning ability TO CHANGE BENEFICIARY DESIGNATIONS POWER TO MANAGE DIGITAL ASSETS POWER TO MANAGE GOVERNMENT BENEFITS POWER TO PERFORM A MEDICAID SPEND DOWN OF ASSETS POWER TO CARE FOR AND DEAL WITH PETS customized further POWERs TO GIFT ASSETS POWERs TO manage care and RECEIVE COMPENSATION

UTILIZING ENHANCED POWERS (CONTINUED) POWERs TO PROVIDE COMPANIONSHIP Customized Further POWERS SPECIFIC TO OPERATE A BUSINESS OR BUSINESSES Customized Further POWERs REGARDING SAFE DEPOSIT BOXES POWERs TO FUND A FIRST PARTY SNT Design Limitations on powers via special agent authority (or Trust Protector)

Effectiveness of Power of Attorney Access to Power of Attorney Durable General Power of Attorney ---- Effective Immediately You (Principal) Your Attorney-in-fact ---- Power Immediate Durable General Power of Attorney with Escrow Springing or Contingent General Power of Attorney You (Principal) Your Attorney-in-fact ---- Power Not Effective Until Principal’s Disability

Health Care Decision Making ADVANCE MEDICAL DIRECTIVE Attorney General’s Form: recommended only No required format: no limitations Personal Input: important considerations Personal preferences Food, entertainment, visitations, communications, lifestyle Appointment of agents Effectiveness of power End of life decisions (living will) Flexibility options – can my agent change my decisions? (if they think another option is better?) Organ donation options Final arrangements (celebration of life options)

Medical Orders for Life Sustaining Treatment MOLST Medical Orders for Life Sustaining Treatment Effective July 2013 Relates To Current Medical Condition Health Care Decision Making Worksheet Attorney General’s Publications

If you have any questions whatsoever, please call Steve at: Thank you!! If you have any questions whatsoever, please call Steve at: 443-393-7696, or email at steve@elvilleassociates.com