A Recent Case of Guardianship and Critical Medical Decisions

When a Texan man in his early 40s collapsed in his home, a guardianship battle ensued between his parents and his estranged wife.

The man apparently had not granted medical power of attorney to anyone, and decisions about life support were left by default to his wife.

His wife filed a ‘do not resuscitate’ order with the hospital. His parents, in their attempt to keep him on life support, filed an emergency application for guardianship. A judge awarded them temporary guardianship for 60 days. In addition to overseeing his medical decisions, his parents also received charge of his financial affairs; certain items that were removed from his home were returned to his parents by judge’s orders.

The man at the center of this guardianship struggle has unfortunately since passed away; as he lay ill, no one could ask him what he wanted done on his behalf. The events surrounding his medical catastrophe continue to raise important estate planning issues.

His circumstances underscore the need to prepare critical estate planning documents regardless of age; even if you aren’t elderly, you need to consider medical powers of attorney in the event that you suffer an incapacitating health catastrophe. Who would you trust to make medical decisions on your behalf? How about financial decisions? And what are your wishes regarding life support? All of these need to be considered carefully and addressed in specific detail.

You also need to make sure to update your estate planning documents to reflect major life changes. The man in this case had been estranged from his wife, and they were undergoing a divorce when he suffered the collapse of his health. Whatever estate documents he might have written up may not have reflected his current wishes.

In the absence of thorough estate planning, such medical catastrophes can lead to battles of guardianship between conflicting parties, adding to the stress of an already excruciating situation. Be sure to contact a reputable estate planning attorney to review these issues and make decisions that will be the most beneficial for you and for your loved ones.

Gloria Vanderbilt Won’t Remember Son Anderson Cooper In Will — And He’s OK With That

Gloria Vanderbilt inherited her family’s vast fortune, but apparently, she does not plan on leaving any of it to her son, CNN Anchor Anderson Cooper. 

That news comes from Cooper himself. In an interview on The Howard Stern Show, he said he thinks that when parents leave too much money to their children, it saps their initiative and desire to work hard. He said he’s actually “grateful” to his mother for her decision because it prompted him to create his own success.

Regardless of what you think of the idea of leaving a significant amount of money to your children, you still need to make estate planning arrangements. Here’s why:

  • First, if you don’t make a plan of any kind for yourself, Texas’ default estate plan will kick in and your assets will be distributed according to that cookie-cutter template. That may not be what you want.
  • Estate planning documents, like living wills, are essential and have nothing to do with money.
  • You can establish trusts for things other than your children. You could establish one to provide a scholarship to your alma mater, for example, or you could leave a bequest to a charity that is important to you. Don’t make the mistake of neglecting the things you personally think are essential.

The reason we are writing about this is that we keep abreast of wills, estate and trusts news because we’re estate planning attorneys. If you ever think you need to speak to a lawyer about an estate planning matter, please feel free to reach out to us.

Seeing to the needs of your pets: Including pets in trust and wills

Given the bond that forms between many people and their pets, a part of estate planning that’s important not to overlook is what would become of your pet if you were to pass away or become too incapacitated to care for it.

In accordance with Texas law, what provisions could you make for your pet? Can you include them in a trust or will?

Bequeathing them to someone else

In your will, you can specify a beneficiary who would take ownership of your pet upon your death. Once that person becomes a legal owner, he or she can keep your pet or perhaps sell it if they wish to. While writing up your will, you can have a discussion with potential beneficiaries about who might want to obtain ownership of your pet.

If you don’t want your pet to be sold, you should try to select a beneficiary who would keep it and take good care of it; you can also name alternate beneficiaries/caretakers. Furthermore, you could also bequeath your pet, along with some money, to an organization that takes care of them.

Pet trusts

Another possibility is to specifically set up provisions for your pet as part of a trust. Texas law allows you to designate resources to your pet in a trust and specific terms for how they should be cared for (however, you can’t include provisions for any children your pet may have after your death; the animals must be alive when you are). In overseeing the trust, your trustee will ensure that the money set aside for your pet is spent on its care and that it’s being looked after by the caretaker you’ve designated in the event of your incapacitation or death.

Once your pet has passed away, anything remaining from the funds you set aside for its care can then go to human beneficiaries you’ve specifically named (if you name no one, it would go to anyone who is your heir by law). It’s important, when setting aside funds for your pet’s care, that you don’t opt for an excessive amount of money.

The amount must be reasonable and based on what your pet needs. If you set aside too much, your decision is more likely to be challenged in court by beneficiaries who would want the funds in human hands, for human use.

If you want to further discuss how to fit your pet into your estate planning, and if you have any other questions on matters of estate law, contact us. We will work with you to make sure that all details are accounted for in your estate plan, both for your human beneficiaries and for any pets whose needs you may want to see to when you’re no longer able to care for them.

‘Testator Intent’ In Wills, Estates And Trusts Law

When it comes to wills, estate and trust law, testator estate generally rules the day.

“Testator intent” refers to the desires and goals of the person who wrote the will, trust-creation document or other important legal matter. We have laws meant to ensure a reasonably degree of clarity, of course, but when there is a dispute (as there so often is), courts try hard to understand and honor the testator’s wishes.

What brings this all to mind is a recent story we read about a 98-year-old woman died and left all of her considerable fortune to her window cleaner, rather than the adult nephew who cared for her during her old age.

The woman had previous wills drafted that left her estate to her “favorite nephew,” but by the time she died in 2008, she had changed her estate plan to leave almost everything to the window cleaner.

The nephew has now sued, alleging that his aunt lacked capacity to execute her final will and, if she did have capacity, was subject to “undue influence” from the window cleaner.

This lawsuit has just started, so we have no idea how it will turn out. However, we can anticipate that the court will try its best to figure out what the aunt wanted.

The reason we’re sharing this story with our Houston audience is that it seems to provide a good example of a crucial element of wills, estates and trusts law. If you think you need to further your understanding of this legal realm, please feel free to contact us.

Wills, Trusts And Estate Planning Lessons From Phillip Seymour Hoffman

As estate planning attorneys, we encourage people to take steps to prepare for the inevitable.
Phillip Seymour Hoffman, the acclaimed actor who died unexpectedly Feb. 2 at age 46, did take some steps to secure his future. Unfortunately, he also made a few mistakes.

Our hope with this post is that we can illustrate for Texas residents why thorough and complete estate planning is necessary.
Hoffman, who was in a long-term partnership and had three children, had an estate worth about $35 million when he died.
The first mistake he made stemmed from the best of intentions. Hoffman had a will created in 2004, when he and his girlfriend had only one child, but he never updated it, even after welcoming two daughters into the world. So, when his will is administered, it will take extra work to make sure they’re taken care of. That can certainly be done, of course, but it’s effort and money that could have been avoided had Hoffman updated his will in the first place.
Second, Hoffman could arguably have made better use of trusts. Unlike wills, trusts do not go through probate — the public, court-supervised administration of a will. Since Hoffman didn’t incorporate trusts extensively into his estate planning, his final arrangements will be on full view for the tabloids to pick over.
Lastly, Hoffman and his girlfriend probably had their reasons for not marrying. We are not saying those reasons are not valid. However, since she was not his legal spouse, she’s at risk to lose 40 percent of what he left to hear to federal and state taxes. It’s entirely possible that if Hoffman and his girlfriend had managed their personal situation differently (and again, that’s a choice they’re free to make or not make), they would have lost less to taxes.
If you think it would be good for you to speak with an estate planning attorney, please know that you can contact Ford+Bergner LLP. We’d be honored to be among the law firms you consider for this important task.

When can the state assume guardianship over you?

An 85-year-old North Texan resident recently went in for hernia surgery. Afterwards, according to local news sources, a doctor reported him to Adult Protective Services. The man was then placed in a psych ward and in the protective custody of the state. Adult Protective Services also removed his wife from their home, as apparently there were concerns that he couldn’t take care of her properly, especially after his hernia surgery. The couple wound up being relocated to a nursing home in Arlington.
The results of an upcoming psych evaluation will determine whether the man remains in state custody or can return home. Adult Protective Services are reportedly concerned not only about the state of care for his wife, but also whether he’ll be able to continue looking after himself. They also mentioned that his home showed signs of hoarding behavior.
What issues are raised by this complex case?
Many seniors want to retain their freedom and self-sufficiency for as long as possible. Balanced against their desire for independence is the concern that they will live an isolated life and neglect their health and other needs.
As seen by this case, it isn’t always clear when an adult can be considered incapacitated. The state can move to assume guardianship even when incapacitation may seem borderline. There are those who argue that the man in this case had his rights infringed upon when he was initially taken to the psych ward and placed against his will in state custody. What does incapacitation mean and how can it be proved? Under what circumstances can a judgment of incapacitation be disputed and overturned? Don’t hesitate to discuss these issues with an attorney.
The state can step in to assume guardianship when there aren’t alternatives in place. An important part of estate planning involves naming people who can handle your care in the event that you become incapacitated. Durable power of attorney and medical power of attorney allow you to name people who will act on your behalf in financial and medical capacities respectively.
In the event that this sort of planning hasn’t taken place or has fallen through in some way, the courts will need to assign a guardian. One individual may be a guardian of the estate, overseeing your financial affairs, while another individual may be assigned a guardian of the person, who oversees your medical care, housing, and other essential needs; the same individual can serve both types of guardianship functions. The powers of your guardian can also be limited in various ways to only those areas of your life for which you truly require assistance.
Court-assigned guardians are usually a spouse or next of kin, though there are various qualities that may render someone ineligible to be your guardian; this may include a history of criminal conduct or evidence that an individual may not have sufficient experience to care for someone. One additional estate planning strategy you can undertake is to designate a potential guardian yourself, before you need one; the courts will take your recommendation under consideration and most likely follow it if the individual named is eligible. Designating a potential guardian in your estate planning documents can also reduce the chances of a dispute among family members over who will assume your guardianship.
When the state itself assumes guardianship, this may be a temporary measure until another guardian is appointed. However, there’s the possibility that you may be under state guardianship until your death if no one else is found eligible to handle your affairs and care for you. To discuss these issues further, contact an experienced attorney who can help you come up with solutions tailored to your circumstances.