UNDERSTANDING WILLS, TRUST, & GUARDIANSHIP TEXT QUESTIONS TO:

WILL vs TRUST 8/10/12 Will Generally less expensive Must be probated to be effective. Only governs AFTER your death

TRUST (Revocable Living Trust) (Inter Vivos Trust) Generally 3-4 times the cost of Will Effective on the date signed and then continues after your death No court probate or otherwise May include provisions to provide for YOU in the event of your incapacity. Generally more difficult to successfully contest. Flexible and easier to amend. More cumbersome at the start (like going through probate during your life)

ADVANCED DIRECTIVES: All estate plans should include, whether Will or Trust. Medical Power of Attorney Financial Power of Attorney (Durable POA) Physician’s Directive (Living Will) HIPPA Authorization Disposition of Remains Declaration of Guardian in the Event of Future Need. Declaration of Guardian for Minor Children

Special Needs Trust Allows for funds to be maintained for the Supplemental Benefits of the Welfare Recipient without interfering with their benefit eligibility. Funds in the SNT are not counted as a Resource of the Individual.

GUARDIANSHIP and ALTERNATIVES TEXT QUESTIONS TO:

1. Incapacitated: Because of a physical or mental condition; Substantially unable to provide food, shelter, or clothing for self; Or otherwise unable to care for self.

2. Necessity Is the guardianship necessary? Can a less restrictive alternative be used? Guardianship should be a last resort. TEXT QUESTIONS TO:

Less Restrictive Alternatives (Person) Durable Power of Attorney (Healthcare and Financial) Educational Power of Attorney Surrogate Decision Maker HIPAA

ALTERNATIVE TO GUARDIANSHIP / FINANCIAL Money Management Programs Representative Payee Management Trusts Special Needs Trust Durable Power of Attorney

PROS AND CONS of GUARDIANSHIP Pros: Guardian's Power "absolute" Cannot be revoked by Ward Cannot be dissolved without court order Court supervision. Ward's rights removed. Cons: Cannot be dissolved without court order. Court supervision. Wards Rights Removed. TEXT QUESTIONS TO:

PROS AND CONS of POAs and Adv. Directives Pros: Fosters independence. Cannot be dissolved without court order No Court supervision. Private. Ward's rights retained. Cons: No absolute power over Ward. Can be revoked with or without capacity. No Court Supervision or oversight. Documents subject to each providers scrutiny.

The Process “Get Ready” You can file application up to 6 months prior to 18th birthday. Don’t file too early because physician’s letter cannot be more than 4 months old. Must have physician’s certification AND letter of suggested need at time of filing. If MR is the basis in whole or in part, must have DMR from MHMR Must have an attorney to prepare application. Under special circumstances Court may initiate the guardianship proceeding.

The Process “Get Set” After filing an attorney will be appointed to represent the Proposed Ward- “Attorney ad Litem”. Attorney ad litem will visit with the proposed Ward and inform of guardianship process Attorney ad litem will advocate for the proposed Ward. Another attorney (Guardian ad Litem) may be appointed to investigate the “best interest” of the Ward. This attorney will report to the court their recommendation of what is in the best interest of the Ward. Usually both attorneys’ appointment will dissolve upon the appointment of a permanent guardian.

The Hearing and After “Go” The guardian and Ward will attend the hearing before the court. The Proposed guardian must testify. The Proposed guardian must provide bond. Bond and Oath must be filed. “Letters of Guardianship” will be issued Reports must be filed every year before renewed. A court visitor will be assigned every year.

EXPECTATIONS OF THE GUARDIAN OF THE PERSON See that the Ward has appropriate residential care setting. Have frequent and meaningful personal visits with the Ward. Make every effort to insure that the Ward is receiving all available benefits for which they may be entitled. Obtain psychological, social services, training, education, social vocational opportunities for the Ward as needed and appropriate. Authorize and arrange any needed medical, dental, ophthalmological and surgical treatment. Notify the Court within 30 days of any change of address. File your report TIMELY.

Costs Costs have increased due to changes in indigency affidavits. Average costs for guardianship is $3000. Some offices have reduced fees. Average costs for advanced directive package is $500 Indigency affidavits based upon parent / applicant’s income and resources NOT student’s. Applicant must prepay filing fees and ad litem fees. Court initiated guardianships are still available, but are usually denied if the Proposed Ward is not in imminent danger.

Thing to Consider when Contemplating Guardianship Is the individual or individual’s estate at risk for harm? Is the individual compliant with care? Does the individual read and write? Are you being precluded from access to medical or educational process? Does the individual wander or elope? Are their behavior or psychiatric issues? Is Guardianship best for the individual or just more convenient for you? Try all other alternatives first. Guardianship will always be there and should only be a last resort.

Law Office of Angela Harvey 4758 Benbrook Blvd Benbrook, Tx Fax: TEXT QUESTIONS TO: