Paul O. Dillon, Attorney at Law

Britney Spears’ Conservatorship Battle Continues

The release of a documentary following the star’s rise to fame, public breakdown, and recent comeback has put the spotlight back on Spears and her father, Jamie Spears, as reported in the article “Britney Spears’ conservatorship, explained” from CBS News. Jamie was named her conservator, a court-appointed role that gave him control over her estate many years ago, and she has been fighting back ever since. A financial company acting as co-conservator is also in the mix.

What is a “conservatorship?” The legal definition of a conservatorship is a court decision where an individual or organization is appointed by a judge to manage the finances and other aspects for a person who has been deemed to be unable to care for themselves, manage their finances or make good decisions. The laws about conservatorship, like most estate planning laws, vary from state to state.

Conservatorship is generally granted as a first resort when someone is unable to take good care of themselves and there is no Power of Attorney or estate plan in place. An estate plan typically includes protections for a person when they become disabled. People who fail to have an estate plan with this type of protection end up in conservatorships and guardianships, sometimes with court-appointed strangers.

James Spears was appointed his daughter’s conservator in 2008, when Britney reportedly struggled with mental health issues and was hospitalized. A Los Angeles court made the conservatorship permanent, giving her father and the other co-conservator total control over both her finances and medical decisions. His argument is simple: under his direction, Britney’s estate has gone from being in debt to being valued at more than $60 million.

However, Britney does not want her father involved in her finances. In 2020, her court-appointed attorney requested that a qualified corporate fiduciary be named in his place. In 2021, a judge granted her wish to appoint Bessemer Trust as a co-conservator and she is still asking that Bessemer Trust become the sole conservator. Her attorney called her a “high-functioning” conservatee, who deserves to know what actions her father is taking, that she is afraid of him, and has not spoken to him in many years.

Clearly this is a high-stakes battle, but the issues are similar to many conservatorship and guardian cases that take place every day for non-celebrity families.

Conservatorships limit a person’s ability to advocate for themselves, to grow, develop and even learn from mistakes. Being locked into the permanent care of another person is not always in the best interest of the person who may need help for a period of time, but may not need to have their personal autonomy forfeited permanently.

An estate plan addresses these issues in advance and can prevent stressful and costly court proceedings for the individual and for the family.

Reference: CBS News (Feb. 13, 2021) “Britney Spears’ conservatorship, explained”

What Steps to Take when Diagnosed with Alzheimer’s

A diagnosis of Alzheimer’s or any serious progressive disease takes some time to absorb. However, during the days and weeks after the diagnosis, it is important to take quick steps to protect the person’s health as well as their legal and financial lives, advises the recent article “What to do after an Alzheimer’s disease diagnosis?” from The Indiana Lawyer.

Here are the legal steps that need to be taken, before the person is too incapacitated to legally conduct their own affairs:

General Durable Power of Attorney—A person needs to be appointed to perform legal and financial duties when the time comes. This can be a family member, trusted friend or a professional.

Health Care Power of Attorney—A person must be entrusted with making health care decisions, when the patient is no longer able to communicate their wishes.

HIPAA Authorization—Without this document, medical care providers will not be able to discuss the person’s illness or share reports and test results. An authorized person will be able to speak with doctors, pick up prescriptions and obtain medical reports. It is not a decision-making authorization, however.

Living Will—The living will explains wishes for end-of-life medical care, including whether to prolong life using artificial means.

Funeral Plans—Some states permit the creation of a legally enforceable document stating wishes for funerals, burials or cremation and memorial services. If a legal document is not permitted, then it is a kindness to survivors to state wishes, and be as specific as possible, to alleviate the family’s stress about what their loved one would have wanted.

Medicaid Planning—Care for Alzheimer’s and other dementias becomes extremely costly in the late stages. A meeting with an elder law attorney is important to see if the family’s assets can be protected, while obtaining benefits to pay for long-term and dementia care.

After the patient dies, there may be a claim against it from the state to recover Medicaid costs. By law, states must recover assets for long-term care and related drug and hospital benefits. All assets in the recipient’s probate estate are subject to recovery, except if surviving spouse, minor children, blind or disabled child is living or where recovery would cause hardship.

With good planning and the help of an experienced elder law attorney, the family may be able to mitigate claims by the government against the estate.

Reference: The Indiana Lawyer (Jan. 6, 2020) “What to do after an Alzheimer’s disease diagnosis?”

It’s Time to Stop Procrastinating and Have Your Estate Plan Done

While many people have had their wills updated or created in response to the pandemic, millions of Americans have yet to do so, reports the article “How to Stop Stalling On Getting a Will and Estate Plan” from AARP Magazine. The main reasons for the big stall? They haven’t “gotten around to it,” or, they think they don’t have enough assets to leave to anyone and don’t need a will. Neither reason is valid.

Estate Plans Protect Us During Life. A will is a legal document used to distribute assets after death. It saves families from unnecessary costs and stresses resulting from intestacy, which is what having no will is called. However, there are more documents to an estate plan than just a will. One is a health care directive, often called a living will. This document names someone of your choosing to make medical decisions for you if you are unable. It is also used to outline the kind of medical treatments you do or do not want.

Imagine your family faced with making the decision of keeping you on a heart and lung machine or pulling the plug and letting you die. Would they know what you want them to do? Without a living will, they have to make a decision, and hope it’s the one you would have wanted. That’s quite a burden to put on your loved ones, especially since there is a simple way for you to convey your wishes in a legally enforceable manner.

You also Need a Power of Attorney. A financial power of attorney appoints a person of your choosing to make financial and legal decisions on your behalf, if you are incapacitated. This is an important document and can be created to be as broad or as narrow as you want. You can provide the direction for someone—a trusted, responsible adult—to manage finances, including paying bills, managing a portfolio, paying a mortgage and generally taking over the business of your life. Without it, your family will need to go to court to obtain a guardianship and/or conservatorship to take care of these matters.

Estate Planning Requires Hard Conversations. When people say they “haven’t gotten around” to doing their wills, what they are really thinking is “This is too unpleasant a topic for me” or “I can’t bring myself to have this conversation with my children.” Death and sickness are uncomfortable topics, and most people find it painful to discuss them with their spouses and their children.

However, imagine the great relief you will feel when your loved ones know what your wishes are for sickness and death. You can also imagine the relief they will have in knowing that you took the time give them the tools needed to deal with whatever the future will bring.

Joint Wills are Never a Good Idea. A joint will can leave a surviving spouse in a terrible legal and financial situation. They are not even valid in certain states. They can restrict a surviving spouse from changing the instructions of the will, which could create all kinds of hardships. Circumstances change, and a joint will won’t allow for that. Most couples opt for a “Mirror” will, where they leave the estate to each other and/or their children.

Blended Families Need Special Treatment. If your family is made up of children from different parents, it is important to understand that stepchildren are not treated the same as children by the law. You may love your stepchildren as if they were your own, but unless you specifically name them in the will, they will not be included. Your estate planning attorney will know how to address this issue.

A few final thoughts: estate planning laws of each state are different, so you should meet with an estate planning attorney who practices in your state. The Power of Attorney and Health Care Directives should name the people who you feel will carry out your wishes and can be trusted to do as you want. The person does not have to be the oldest male child. They don’t even have to be related to you, as long as the person you choose is trustworthy, responsible and good with managing money and details.

Reference: AARP Magazine (Nov. 12, 2020) “How to Stop Stalling On Getting a Will and Estate Plan”

The Importance of a Will

Even during a pandemic, few people want to spend time thinking about death. However, having an estate plan means having some of the most important documents you’ll ever create. Having a will is a gift that alleviates the burden placed on loved ones after we are gone, says this recent article “Why it’s important for every adult to get a will” from Bankrate. In a time of sorrow, the family and friends will be spared the stress that makes grieving more complicated when there is no will, no guidance and no path forward.

What is a will?

In its most simple form, a will is a legal document that serves to transfer property at your death to the people you choose. It is revocable, which means you have the legal ability to make changes to it, as long as you are alive and have the mental capacity to do so. However, wills do more than distribute property. The will is your chance to state your wishes for who will care for your children, what happens to your physical remains and who will take care of your pets.

Are Wills Pretty Much the Same?

There’s a good reason why the best wills are those created with an estate planning attorney: they are created to suit your specific needs. Just as every person is different, everyone’s will must reflect their life. Some people want to name a recipient for every single asset they have, while others prefer simply to give their entire estate to a spouse, their children, a trust, or a charity. However, there are also different kinds of wills.

A Testamentary Will is a will signed in the presence of witnesses. It is the best choice to protect your family.

A Holographic Will is a handwritten will, which is not acceptable in many states and could lead your family into all kinds of expensive and stressful battles, in and out of court.

An Oral Will is a verbal will that is declared in front of witnesses, but don’t count on anything you say being considered a legally valid will.

A Mutual Will is also known as a “I love you Will,” when partners create a joint will leaving everything to each other. There can be some tricky things about these wills, since when one person dies, the other is still legally bound to the terms of this will. If the surviving spouse remarries, it can become complicated.

A Pour Over Will is the ideal choice, when your plan is to pour assets into an established trust at your death.

What does a will do and not do?

Wills are used to determine guardianship for minor children and distribute assets and real property. Wills don’t control jointly owned assets, or contracts, like life insurance policies and retirement accounts. These are controlled by beneficiary designation forms. It won’t matter if your will says that your current spouse should inherit your retirement account and you never changed the beneficiary from your first spouse. This is why estate planning attorneys always tell clients to check on beneficiary designations when large life events, like divorce and remarriage, occur.

What happens if there is no will?

Without a will, the state’s laws will determine what happens and your wishes don’t count. That includes who inherits your property, and even who raises your minor children. The court will make all of these decisions. The stress that this creates cannot be underestimated. When there is no will, the chances of litigation between family members and trouble from distant relatives seeking a claim against your estate rises.

Reference: Bankrate (Nov. 6, 2020) “Why it’s important for every adult to get a will”

How Does Guardianship Work?

For the most part, we are free to make our own decisions regarding how we live, where we live, how we spend our money and even with whom we socialize. However, when we are no longer capable of caring for ourselves, most commonly due to advancing age or dementia, or if an accident or illness occurs and we can’t manage our affairs, it may be necessary to seek a guardianship, as explained in the recent article “Legal Corner: A guardian can be a helpful tool in cases of incapacity” from The Westerly Sun. A guardianship is also necessary for the care of a child or adult with special needs.

If no proper estate planning has been done and no one has been given power of attorney or health care power of attorney, a guardianship may be necessary. This is a legal relationship where one person, ideally a responsible, capable and caring person known as a guardian, is given the legal power to manage the needs of a ward, the person who cannot manage their own affairs. This is usually supported through a court process, requires a medical assessment and comes before the probate court for a hearing.

Once the guardian is qualified and appointed by the court, they have the authority to oversee everything about the ward’s life. They have power over the ward’s money and how it is spent, health care decisions, residential issues and even with whom the ward spends time. At its essence, a guardianship is akin to a parent-child relationship.

Guardianships can be tailored by the court to meet the specific needs of the ward in each case, with the guardian’s powers either limited or expanded, as needed and as appropriate.

The guardian must report to the court on a yearly basis about the ward’s health and health care and file an annual accounting of what has been done with the ward’s money and how much money remains. The court supervision is intended to protect the ward from mismanagement of their finances and ensure that the guardianship is still needed and maintained on an annual basis.

The relationship between the ward and the guardian is often a close one and can continue for many years. The guardianship ends upon the death of the ward, the resignation or removal of the guardian, or in cases of temporary illness or incapacity, when the ward recovers and is once again able to handle their own affairs and make health care decisions on their own.

If and when an elderly family member can no longer manage their own lives, guardianship is a way to step in and care for them, if no prior estate planning has been done. It is preferable for an estate plan to be created and for powers of attorney be created, but in its absence, this is an option.

Reference: The Westerly Sun (Sep. 19, 2020) “Legal Corner: A guardian can be a helpful tool in cases of incapacity”

Can I Revoke a Power of Attorney?

The story takes an unpleasant twist, after Cindy’s stepsister Charlotte suggests that she be given power of attorney to help Cindy with her business matters. When Cindy agrees, Charlotte’s attorney creates a Statutory Durable Power of Attorney that names Charlotte as her agent. What happened next, according to the Glen Rose Reporter in the article “Guarding against the evil stepsister,” was a nightmare.

A few weeks later, Cindy’s brother Prince found that Charlotte had moved money from Cindy’s personal bank accounts into a completely different bank, setting up joint accounts in Cindy and Charlotte’s names and granting Charlotte right of survivorship (ROS). This made Charlotte the legal owner of the account at the time of Cindy’s passing. Charlotte had also contacted Cindy’s former employer and was attempting to wrest control of Cindy’s pension. It wasn’t clear whether she was attempting to obtain the entire amount in a lump sum, but she was attempting to gain control.

Cindy realized that Charlotte was not to be trusted. However, Charlotte had the power of attorney, and all of these actions were legal. Could the power of attorney that she had signed be revoked? The answer is yes, which is important to know.

There were two paths available to Cindy: she could immediately execute a revocation of the Statutory Durable Power of Attorney that had been used to give Charlotte authority, or have her attorney create a new power of attorney granting power of agency to another person. Either way, Charlotte would be stripped of the legal authority to act on Cindy’s behalf.

Cindy had a new POA created, naming her brother Prince as her agent. The new POA had to immediately be presented to all of the financial institutions she deals with. She contacted her former employer and gave them proper notice that Charlotte no longer had authority to represent her. The new joint accounts that Charlotte had opened were then closed and individual accounts in her name only were open, which also ended the ROS. She could have returned her accounts back to the old bank or stayed with the new bank where Charlotte had opened new accounts. Cindy decided to stay with the new bank.

Cindy had to anticipate another challenge—that Charlotte might attempt to have Cindy declared incompetent and have herself named as Cindy’s legal guardian. To protect herself, Cindy’s estate planning attorney drew up documents stating that in the event Cindy ever needed someone to be her guardian, she did not want Charlotte to be named. In addition, she named the person she would want to be her guardian, if that is necessary in the future. While a judge ultimately has final discretion, the courts generally prefer naming a guardian as requested by an individual.

Your estate planning attorney can revoke a power of attorney, if it becomes clear that the person you’ve named is not acting in your best interests. Having an estate plan in place in advance of any medical or mental challenges is always better, so that you are less vulnerable to anyone trying to take advantage of you during a difficult time.

Reference: Glen Rose Reporter (Sep. 10, 2020) “Guarding against the evil stepsister”

What Happens when an Autistic Child Turns 18?

For parents of autistic children, the coming of an 18^th birthday is the time when hard decisions need to be made. A legal guardianship allows parents to continue to make important decisions for their child, but it does severely limit the child’s rights and freedoms. State laws often require that less restrictive alternatives be considered before a guardianship is ordered, says the article “Guardianship And Autism: A Crossroads In Life” from Autism Key.com.

An adult guardianship is a court proceeding that appoints another person to make decisions about a person’s health, safety, support, care and residence. The procedure varies from state to state.  However, the process generally starts with an interested party filing a petition, with the court stating why guardianship for the person, known as the “ward,” is necessary. The person who has filed for guardianship and others, including parents, spouses, or relatives, all receive a copy of the petition. An independent evaluator assesses the ward and reports on their capacity. There is a hearing and the court determines whether guardianship is needed. The ward has the right to hire counsel, or the court can provide counsel.

Once the guardian is appointed, the court may limit or completely terminate the ward’s ability to make decisions regarding medical treatment, where they live and other important decisions. The guardian is required to make decisions that are always in the best interest of their ward and to encourage the ward to participate in decisions. A report must be filed with the court every year to advise of the ward’s status.

Most states have a law known as the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which makes it easier for states to transfer guardianship from one state to another, if the person moves. Florida, Kansas, Texas and Michigan do not have this law.

Guardianship is an emotional decision for parents to make. They want their child to be protected, at the same time they hope their child can reach a certain level of independence, within the limits of their capacity.

An individual facing a guardianship petition has the right to an attorney and in some states, that attorney must advocate for the best interest of the person, which may be to have more independence.

A case involving a young woman with Down’s Syndrome named Jenny Hatch in 2013 led to changes in guardianship proceedings. Jenny was a high school graduate, worked at a thrift shop and volunteered in local political campaigns. At her parent’s request, a court put her into temporary guardianship and placed her in a group home, where her cell phone and laptop were taken away. She was not permitted to socialize with friends or go to work. After a year of litigation, she won the right to make her own decisions through Supported Decision-Making, a process in which a team of allies help the disabled to make key decisions about their life. Jenny became a national hero for the rights of the disabled and speaks publicly about her experience. A number of states now have Supported Decision-Making laws to give the disabled freedom, while providing them with a network of support.

There is a lot of information to consider as a parent facing the prospect of an ASD child becoming a legal adult. Each person has his or her own strengths and challenges. Review the laws of your state to consider what options there may be, in addition to guardianship.

Reference: Autism Key.com (July 28, 2020) “Guardianship And Autism: A Crossroads In Life”

Avoid These Mistakes with Your Estate Plan

Estate planning means putting together a plan on paper, following the letter of the law, when it comes to what should happen to assets when you die. It also includes your decision regarding who will care for your children, who will make decisions on your behalf if you are unable and what kind of care you do or don’t want, when you are seriously ill or injured. It doesn’t have to be difficult, but according to the article “10 Mistakes Often Made When Estate Planning” from SavingAdvice.com, there are ten classic mistakes to avoid.

1—Thinking you don’t have an estate and not having an estate plan. Your estate is whatever you own: a house, regardless of its size, a car, personal items, financial accounts, pets and any items that have monetary or sentimental value. You might think your family will just figure things out when you die. In most cases, they won’t, or not easily. That creates a burden for them.

2—Thinking only about after death. Most of what is done in estate planning does concern what happens after you die, but it also includes protection for you and loved ones while you are living. Certain documents are created to protect you, if you become incapacitated. It also includes life insurance, disability insurance and long-term care insurance.

3—Not making sure all of your estate planning documents work together. Let’s say you have a life insurance policy and the beneficiary is your first husband. If you remarry, you need to update that form. What if you named someone to be your beneficiary on retirement accounts, but you have learned since you named them that the person won’t be able to manage the money? An estate planning attorney can help you put all of the pieces together to work correctly.

4—Not planning for minor children. If you have children who are under age 18, your estate plan is the document that tells the court two very important things: who you want to raise them (to be their guardian) and who you want to be in charge of the money left for their care.

5—Not taking advantage of trusts. A revocable trust gives you control over assets while you are alive, but passes control to a beneficiary when you die. It, therefore, avoids probate for the assets in the trust. However, if you don’t do this correctly, you’ll create more problems than you solve.

6—Forgetting about taxes. An estate plan helps minimize taxes for your estate and for your heirs. Otherwise, your heirs could receive far less, and Uncle Sam will receive far more than you wanted.

7—Failing to set aside adequate liquid assets. When you die, your loved ones will need to pay for a funeral, which are very expensive. Or you may own a business that you left to heirs—they may need a certain amount of cash to continue operating, while things are being settled. Make arrangements, so you don’t leave loved ones or business partners high and dry.

8—Avoiding the tough conversations while you’re alive. Maybe you want to leave your children the family home, but they don’t want it. You may also want to be sure they take your ancient Pekinese dog, who they never warmed up to. Talk with your heirs about your wishes and understand if your wishes are not the same as theirs. Adjust your estate plan accordingly.

9—Overlook the concept of secondary beneficiaries and executors. If you have three children and name only one as a beneficiary, what happens if that one dies? The same goes for naming an executor. You’ll want to name a primary and a secondary executor, and multiple beneficiaries.

10—Thinking estate planning is done once and finished forever. Estate planning is never really done, until you die. Life changes, your relationships change and assets change. Just as you do your taxes once a year, you should review your estate plan every time there is a big change in your life or every three or four years.

Reference: SavingAdvice.com (July 24, 2020) “10 Mistakes Often Made When Estate Planning”

Don’t Overlook Key Parts of Estate Plan

The importance of having key estate planning documents cannot be overstated. That includes a will, an advance directive, powers of attorney for health care and financial matters and guardianships for minor children. Trusts may also be part of an estate plan, and they need to be created and funded in a timely manner. However,, according to the article “7 Things Your Client’s Estate Plan Might Be Missing: Morningstar” from Think Advisor, there are a number of frequently overlooked additional parts to an estate plan that make a difference.

Financial Overview. This gives a broad outline of your assets and can be a useful discussion starting point, when one spouse manages the money and the other needs to be brought up to speed. It includes information about larger assets, including the home, investments, cars and other valuables.

A Directory. Creating a complete master list of all accounts, including the account number, website addresses and the names of any individuals that you deal with on a regular basis, avoids sending loved ones on a scavenger hunt. Keep this document safe—either encrypt it or keep it in a locked, fireproof safe in your home.

Personal Property. Wills contain directions about property, but not everything gets included. Make a list of any tangible personal property that you want to go to specific people, like jewelry or artwork, and create a detailed memo. It won’t be part of the will, but most states consider such memos legally binding, as long as they are mentioned in the will. Your estate planning attorney will know what is best for your situation and in your state.

Plan for Pets. The best way to do this is with a pet trust, which is enforceable. You name a person to take care of your pets, and how much money they should use to care for the pet. The will can be used to specify who should be your pet’s caretaker. You can leave assets for the pet, but the designated person is not legally bound to use the money for the pet’s well-being.

Digital Estate Plan. Make a plan for your digital property, including tangible digital devices, like computers and phones and the data stored on devices in the cloud and online accounts, including social media, websites, emails, photos, videos, etc. Start by making an inventory of all digital accounts, which needs to be stored in the same way your directory is: under lock and key.

End of Life Plan. Advance directives are used to direct your wishes towards life-extending care, but they don’t always go into detail. Providing additional information to loved ones who might need to make health care decisions could alleviate a lifetime of guilt. Having conversations is a starting point but putting your wishes into a document is better.

Ethical Will. An ethical will in which the person hands down their belief system to loved ones is a gift and part of your legacy. What would you want the next generation to know about your beliefs? What life lessons do you want to share?

Reference: Think Advisor (July 22, 2020) “7 Things Your Client’s Estate Plan Might Be Missing: Morningstar”

People Subject to Guardian Proceedings and Legal Representation

In many states, if a person is deemed unable to conduct their own affairs, a court appoints a guardian who makes decisions for the person and manages their financial affairs. In some states, Pennsylvania among them, the person has no legal right to have an attorney represent them during this process, explains a recent article from the Pittsburgh Post-Gazette, “Guardianship gap: Give people a right to counsel for proceedings.”

The article maintains that people who face losing control of the right to manage their lives would benefit from having the advice of an elder law attorney, especially if they wish to fight against a claim that they are incompetent.

About 18,400 adults in Pennsylvania are now under guardianship, and most are over 60 years old. There are problems with the guardianship process in the Keystone State. As a result, the state’s Supreme Court took action with the creation of an Elder Law Task Force. The task force issued a report calling for reforms six years ago—in 2014. Some reforms have been put into place. However, a recommendation to require appointed counsel was never implemented.

What is strange, the article reports, is that the goal of legal counsel is somehow marked as having been accomplished. Several members of the task force have expressed dismay that a right to legal counsel has not been completed. A number of judges do appoint counsel in guardianship cases, because they believe it is the right thing to do. But not all of them do.

Guardian oversight and abuse is the concern. An improvement was made in 2018, when new software was made available, so that guardians could submit annual reports. The software identifies possible problems in the guardian’s handling of financial affairs. This has not solved the problem, as some jurisdictions are receiving alerts, but lack the staffing to follow up.

Guardians are also not required to submit bank statements, receipts and other documentation to verify their reports.

When you have an estate plan, including a power of attorney for financial affairs, power of attorney for healthcare decisions and a last will and testament, you are in control of who will take care of financial and legal affairs, if you are deemed incompetent.

When these documents are not in place, there is a very real risk that your life will end up being managed by a court-appointed guardian, who does not know you or your family.

Speak with an estate planning attorney to ensure that your wishes are properly documented and  that someone you select is able to represent your best interests, if necessary.

Reference: Pittsburgh Post-Gazette (April 9, 2020) “Guardianship gap: Give people a right to counsel for proceedings”