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What does the New York Jets all time sack leader have to do with Elder Law?

Recently Mark Gastineau, the New York Jets all time sack leader, told the public that he was diagnosed with dementia, Alzheimer’s disease, and Parkinson’s disease. Alzheimer’s disease is an awful disease that affects the brain and destroys memories and other important mental functions.  He may not be able to recall family members or how to get dressed. It is an absolutely awful and debilitating disease.  Alzheimer’s disease is a progressive disease and will eventually render Mark Gastineau incapacitated. There are two ways of dealing with incapacity. First planning in advance through advanced directives and second through a guardianship.

Due to this incapacity, Mark will have trouble taking care of his financial affairs and issues giving the doctor direction as to his treatment.  With some basic estate planning, Mark could plan for this eventual incapacity.  By executing a power of attorney and health care proxy a full guardianship can be avoided. These documents are called advanced directives.  A power of attorney will allow an agent of your choice to take care of your financial matters.  A health care proxy allows an agent to make medical decisions for a person if they are unable to give a doctor direction.

If there are no advanced directives in place, a court hearing called a guardianship may need to be commenced to help Mark with his financial affairs and medical decisions.   A guardianship may be commenced by a loved one or a friend.  The person commencing the hearing is called the petitioner. The petitioner must prove by clear and convincing evidence that a person alleged to be incapacitated (AIP) has functional limitations and is in fact incapacitated and in need of a guardian.   To learn more about guardianships or have any questions, contact Ira K. Miller & Associates.

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Why Every Young Family Should Have an Estate Plan!

When people think of estate planning, they usually think of the elderly or people in white clothes playing tennis on their massive estates in the Hamptons. Both the elderly and the super wealthy need estate plans, but so does everyone, especially parents with young children.  Estate planning consists of planning for two events, death (morbid, I know) and incapacity.

A Last Will & Testament and Trust are documents used to specify your wishes upon your passing.  These documents can specify to whom your bank accounts, real estate, and personal belongings are left.  More importantly, a Last Will & Testament can specify who would be your child’s guardian if both you and your partner were to pass. Even if you do not have much in terms of funds, planning to make sure that your child is cared for by the right person or persons in the event of a catastrophe is very important.  A Last Will & Testament or Trust can also specify the age in which your child would receive money inherited.  If you do not specify, a child would inherit at the age of eighteen (18) and could spend all that money on a Ferrari instead of on college.

Planning for incapacity is very important and often overlooked.  A healthcare proxy allows an agent to make medical decisions if you are unable to give the doctor direction.  A power of attorney can be used by an agent to take care of financial matters if you are unable to.  By executing these documents, you specify who you would like handling your financial affairs and medical decisions.  Without these documents, fighting between family members can occur and a guardianship may need to be commenced in order to appoint a person to handle these affairs.

Daredevil Dan Example

Daredevil Dan and his wife Brittany left their child Charlie at home and traveled to Hawaii for a much need vacation. In a freak accident, both Daredevil Dan and Brittany were eaten by sharks while scuba diving, and that was the end of Daredevil Dan and Brittany.  Daredevil Dan and Brittany did not go to Ira K. Miller & Associates and did not have a Will specifying who would be Charlie’s guardian in the event they both passed away. After a contested guardianship, Charlie ended up living with crazy Uncle Steve instead of Daredevil Dan and Brittany’s choice, sane Aunt Nikki.  Had Daredevil Dan and Brittany gone to Ira K. Miller & Associates, Charlie could have been living and cared for by Aunt Nikki instead of crazy Uncle Steve.

 

Estate planning is very important for people of all ages. Contact Ira K. Miller & Associates for all your Estate Planning needs.

 

Estate Administration

Who has priority to act as Administrator of an Estate?

If a person dies without leaving a Last Will & Testament, that person is said to have died intestate.   To learn more about who would inherit according to intestacy, read “What Happens if I Die without a Will?”   When a person passes away without a will, a person needs to be appointed to marshal the assets of the decedent, pay their liabilities, and distribute the remaining funds to the people who would inherit according to intestacy.  That person is called the administrator of the estate. The administrator is a fiduciary and must act in the best interest of the estate.

The person that has the largest interest in the decedent’s estate according to intestacy has priority in becoming the decedent’s administrator. SCPA 1001 lists the order of priority for granting letters of administration.    For example, a wife that has a 50% interest in their deceased husband’s estate has a higher priority to become administrator than a child that has a 25% interest in their father’s estate.

Problems arise and litigation can occur when multiple individuals with the same priority are requesting to become administrator of an estate.  In this situation, the court will decide as to whom should be appointed as the fiduciary.   A person with a higher priority may not be appointed as administrator if there are objection and the proposed administrator may be unfit to serve as administrator.

Daredevil Dan Example:

Daredevil Dan, our crash test dummy, decided to go snowboarding in upstate New York.  Unfortunately, Daredevil Dan was going too fast and snowboarded straight off a cliff, and that was the end of Daredevil Dan.  Daredevil Dan never made it to Ira K. Miller & Associates and died without a Last Will & Testament. Daredevil Dan died leaving a wife and three children.  According to SCPA 1001 Daredevil Dan’s wife would have priority to act as administrator.  If Daredevil Dan’s wife predeceased him, his three children would have equal priority to becoming the administrator of his estate.

 

Contact Ira K. Miller & Associates for any questions you may have regarding Probate and Administration.

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2017 New Year’s Resolutions

Many people start the New Year with different New Year’s resolutions.  Start eating healthier, stop procrastinating, and lose weight all see
m to be favorites for the New Year. One resolution that everyone should make is to put together an Estate Plan.

A proper Estate Plan covers who should make decisions for you if you were to become incapacitated and how your property would be distributed when you pass away. A very important component of an estate plan for parents with young children is to specify a guardian. Who would I like taking care of my children if my spouse and I were to pass away unexpectedly?

If 2016 taught us one thing, it is that unfortunately no one will live forever.  Prince, Muhammad Ali, George Michael, and Carrie Fisher are all reminders that we all have a limited time on this earth.  One resolution that can be easily kept and does not require many hours on the treadmill is to put your affairs in order and come up with an Estate Plan.