Minor Settlements In Probate Court

When a minor is injured and someone else is liable, what happens? How is that child reimbursed for their injuries? Because the child is not old enough to legally settle the claim, the county probate court is going to be involved.

The probate court has the authority to approve the settlement of minor's injury claims, and will decide how the settlement funds are distributed.

The guardian of that minor (or of the minor's estate if they passed away) must file an Application to Settle a Minor's Claim in the child's county probate court. Parents who do not have custody of the child get notice of this application, which must contain the following:

1. A current statement from a physician that describes the injuries, including their permanency and extent of recovery,
2. A statment that descibes the circumstances of the injury or damage, as well as treatment program, and
3. prospective or actuctual settlements from similar incidents (for minors or adults).

The minor child must attend the hearing, and within 30 days after the settlement, there will be an Entry Approving Settlement of a Minors Claim and Distribution and Entry of Minor's Claim to prove the proper distribution of the settlement funds.

If a guardian was appointed, the case remains open until the guardian submits an inventory within three months of their appointment. For settlements over $10,000, a guardian must be appointed. A guardian is not needed for settlements under $10,000.

In the end, the court will chose to do one of the following with the remaining funds:

1. Release funds to the natural guardian or the minor,
2. Order the funds placed in a secured account and released to the minor when he or she becomes an adult, or
3. Place the funds in an annuity that will provide a future source of steady income to the minor.

Thanks to Lora Lynne Stalnaker, who wrote an article that was the basis for this post.

Help Emergency Responders Care for Elderly and Disabled

An alarming editorial appeared in the Columbus Dispatch recently. Deborah Kendrick in “Emergency responders can worsen plight of disabled victims” recounted a disquieting incident.

Stephen Pyles, 55, is deaf and unable to communicate verbally. After calling 911 because his house was burglarized, the police officer sent to help instead arresting him because he interpreted Stephen’s frantic attempts to give the officer a hand-written note as aggression.

The rough treatment Stephen received from the officer exacerbated Stephen’s neck pain that had just been treated with surgery a few days before. Stephen feels he cannot trust the police to provide help and protection in the event of another emergency. The author also told of how she experienced what she thought was a stroke and while firemen did come and offer a ride to the hospital, they did not offer any sort of immediate medical attention that would have been needed had the author indeed been experiencing a stroke.

These stories raise a clear warning for those who have loved ones with disabilities. Families cannot completely rely on law enforcement and emergency professionals to always understand the unique limitations of people with disabilities and offer the best assistance during crisis.

Family members of people with disabilities need to make plans for emergencies so that their loved ones’ health and safety is protected as much as possible. Some specific ways to prepare for emergencies would be to:

1. Instruct family members with disabilities to contact family members right after emergency professionals,

2. Keeping relevant health records in an easily accessible location and instructing family members to give the materials to emergency professionals, and

3. Enlisting neighbors and nearby friends to offer assistance in emergency situations.

If the family member is not their own guardian, legal documents must be prepared so that non-relative friends who offer assistance will have the legal authority to do so and the family member will not be placed in foster care.

All of this is taken care of in our routing estate planning for Golowin Legal clients. Whether that includes Health Care Powers of Attorney, Living Wills, HIPAA Release forms, all instantly available to family and emergency responders alike, or whether that includes rarely used Do Not Resuscitate documents clearly visible in the home. For children, their Kids Protection Plan serves a similar purpose.

Family members are the most important people in our lives, and the one of the best ways we can show our love for them is by protecting them from potentially traumatic and even life-threatening traumatic events through careful planning.

Should Estate Planning Be Put Off During A Recession?

CNBC's In The Money discussed how estate planning has fallen to the end of the list for some people in these financial times and why that's a mistake. Alexis Martin Neely answers calls about 1) How to make sure your child is taken care of and whether it is worth it, 2) Whether you should add a child to a mortgage, 3) How a trust can keep your family finances private, and 4) The importance of reviewing beneficiary designations of life insurance and retirement plans.

Securing the American Dream for the generation that follows

Write The Most Important Letter of Your Life

At Golowin Legal, a very large part of our estate planning process for both young families and old is to record "Priceless Conversations" which permanently record our values, hopes and dreams, wishes and even fears for those who follow in our footsteps.

An example of the power of these priceless conversations can be seen in Mario Vittone's "Most Important Letter", which is reproduced below.

My father wrote me a letter before he died. He was 44 and knew he wasn’t going to make it to 45. Though very weak from illness and treatments that go along with having cancer, he wanted to say something of value to his children. Knowing that he wouldn’t be there for us anymore, I imagine he wanted to say the one thing he could, to each of us, that would help us for the rest of our lives. I’ve read that letter countless times since my mother gave it to me; but for the life of me, when I think about it, I can only remember one part. He said, “Right now in life, you are pretending to be a goof off. But I know that one day you will do something great that will set you among the very best.” With those words, my father gave me the one thing that all children need; what Merita Golden called, “permission from someone they love to venture into the unknown.”

“You will do something great that will set you among the very best.”

His faith-filled charge was not a parental request; he wasn’t just hoping; it was his prediction. Going through the rest of my life knowing that he believed it about me gave me permission to believe it about myself. Since the day I first read his words (at 12 years old) they have been with me; in the soulful heart of my subconscious. As I was certain that he loved me, I was also certain that my life would be extraordinary. I didn’t know what it was but that didn’t matter because he didn’t either. “You will do something great.” At times in my life when I am feeling proud of myself I remember my father and his words and wish he was here to ask, “Is this what you were talking about, Dad? Should I keep going?”

He’s not here to hear my question and though it took me a long time to understand, he wouldn’t know the answer anyway. He was not the repository of all human wisdom that my memory transformed him into in the years since his death. He was just a man, like me, trying to do his best. Still, his words stay in my head and I find myself compelled to keep going; just in case there is more; to keep reaching for the greatness he spoke of. I am sure I will take his last words to me to my grave wondering if I got there. Meeting him in heaven, I’ll get my answer.

I dreamed once of that meeting: I was twelve years old again and with a young child’s legs I ran up to him, threw my arms around him and asked, “Was I great, Daddy? Did I do it?” He kissed me on my cheek and whispered , “Jeez Mario, I was only talking about you acing a math test or two. Lighten up.” My father was very funny in life. I guess my dream couldn’t betray his heart.

A long way from twelve now, I realize that my father would have been very proud of me at all the moments in my life. He would have been proud when I graduated from basic training, and been proud when I returned home from the sea. He would have been proud that I became a Coast Guard rescue swimmer. He would have loved to have been there (though his younger brother, my Uncle John, has filled in often) when some Admiral pinned a medal on my chest. He would have been very proud being my father. I know it. But as I get closer to his age when I knew him, I can’t help but think that I’ve been missing something. Making him proud isn’t what I’m supposed to be doing. Lately - perhaps finally - I believe he would want me to move on to what is next. He would want me to be more like him. He would want me to be proud of - and believe in - someone else.

It’s time to start writing my own letters to my children and to my friends. It is time for all of us to start writing. We shouldn’t wait. As I’ve always looked to my parents I know now that our children always look to us with the same unanswered question just behind their hearts. “Is this it, Daddy? Am I doing good?” It’s the reason they learn to say “Watch me” so young. And if you only get one thing then get this: Our children do not hold back or shrink from themselves because they are afraid to fail. They are only afraid of failing us. They do not worry about being disappointed. Their fear - as mine was until that letter - is in being a disappointment.

I know it seems like a long way off, but this Mothers Day and Fathers Day I think we should do something different. I think we should write the most important letter of our lives and give it to our kids. If you don’t have any then write one to anyone who looks up to you. You know who they are. And it doesn’t matter how old they are, and it doesn’t matter if you think they already know. If they are still looking up to you they are still waiting for an answer to their unspoken question. They are waiting for you to believe in them. And I know they may already be great kids, and I know they may already know that you love them. I always knew my parents loved me (thanks Mom). But trust me; that belief will be more complete - that love will be more real - their belief in themselves will be greater if you write a letter on their hearts that says, “Don’t worry; you will do something great.” Not having it – not having that permission from someone they love – may be the only thing holding them back.

If you would like pass on your values and wishes for your children and/or loved ones like this, contact our office at (614) 453-5580. We'll show you how our clients do just that.

Beware Annuity Sharks?

The March 22, 2009 edition of The Columbus Dispatch advised "Advice for Elderly Beware Annuity Sharks". This article, written by Steve Wartenberg, told the story of a blind woman with dementia who had just moved into a nursing home.

With all of these health issues going on, she was advised to cash in her current annuities and invest her life savings in another one (most likely generating surrender charges and high commissions for the financial advisor).

Two weeks after purchasing these annuities, the woman passed away, and the new annuity investment left her loved ones with half of what they would have inherited if she had not invested in the annuity.

In all fairness, I think it is critical to note that there ARE many circumstances when annuities can be a valuable piece of a family's financial plan - just almost never for ill elderly.

Quite often I must advise clients that the annuity they were sold (with the advisor knowing long-term care would be likely needed soon) must be cashed in in order to protect any of the money or to qualify for Medicaid. This often means paying a surrender charge (penalty) of thousands or even into the tens of thousands of dollars. This sometimes makes some shocked and angry clients.

Other times, I find clients that were told the annuity would protect their money from the nursing home, which is usually not correct. Would they have bought the annuity had they known the truth?

I've also seen people that bought an annuity to qualify for the Veterans Administration (VA) Aid and Attendance benefit, only to find out that when they needed nursing home care later that the annuity severely damaged their ability to leave money to children in the end.

Unfortunately, some people think seniors are good marks for financial fraud, identity theft, or financial products that really don't fit their needs.

My advice is to understand that like all financial investments, or even legal techniques you might develop with a lawyer, they must fit your individual goals and values. Otherwise, you won't get a whole lot of benefit, and it could possibly be damaging to your financial health.

As I said, annuities can be great investments, but beware of buying them when there are health concerns, advanced age, or if you are often advised to cash in one for another.

Ways To Help Your Aging Relative With Their Finances

Sometimes aging loved ones need a little help managing their money. Many times they don't need everything handled for them, but a little guidance or a review is helpful.

In my prior post, Help Your Aging Relatives With Their Finances, some of the warning signs of financial meltdown were discussed, along with the need to bring up the issue early. Here are some tips on how to help without taking over completely.

• Set up direct deposits for Social Security, Pensions
• Set up automatic billpay for recurring expenses
• Minimize the number of accounts ***Do your parents have 15 CD's at 15 different banks? Do they have 5 different brokerage accounts? In my opinion, these accounts should be consolidated with a qualified, trusted advisor in the first place...but even if not, the number can be pared down to make it easier to keep track of what's happening with the money***
• Set up regular meetings to review
• Arrange for duplicate bank and bill statements to be sent to you so you can track income and spending

Do NOT add your name as joint owner on your parent's bank accounts or brokerage accounts to help them manage the money. Many times, mom may name the in-town child as the joint owner because the other three children live across the country and have a more difficult time going into the bank. This causes large problems at death, when the entire value of the account passed to the joint owner in-town child, and leaves out the other children or loved ones entirely.

Instead, consider the use of a Revocable Living Trust with the in-town child named as co-trustee. That way, the in-town child can deal with the bank, but the money will pass in the intended fashion (perhaps equally to all four children). Another alternative, a little more risky, is to give the in-town child power of attorney to deal with the finances. Either one, however, is better than adding a joint owner to the account.

Help Your Aging Relatives With Their Finances

Keeping an eyes on your elderly relatives may provide signs that they could use your help with handling their finances. Don't wait to get involved!

Eileen AJ Connelly of the AP writes:

[a]t first, you might notice a pile of unopened mail. Your normally fastidious mother might be getting sloppy with her checkbook. Your elderly uncle might be behind on his electricity bill. The signs are often subtle, but they might indicate that aging relatives are no longer able to handle their finances.

Once you have noticed a possible problem, now is the time to have a conversation where you offer help. Don't wait, as that will risk compounding any problems that already exist. The longer the topic goes unspoken, the greater the chance that once the problem is critical, that your offer of assistance will be met with resistance or denial. However, don't avoid the topic because you think there will be trouble...sometimes the elder may simply assume you're too busy and they don't want to bother you with their troubles.

Sometimes is is easier to enlist the assistance of one of the elder's professional resources: their lawyer, CPA, financial advisor, or doctor. Connelly writes:

Once the conversation is started, be sure to discuss a budget, income, assets and insurance policies. It also can be a good time to make sure that a will is in place, and discuss whether a health-care power of attorney is appropriate.

While I agree that this is an excellent time to discuss whether your parents have an appropriate estate plan in place (at a minimum: Will, General Durable Power of Attorney, Health Care Power of Attorney, Living Will, Organ Donor Registration, HIPAA Release), I strongly disagree that this is the time to "discuss whether a health-care power of attorney is appropriate".

A health care power of attorney is always appropriate from the moment one turns 18 years old. There is no reason to wait and risk having the court be involved in order to appoint the one in charge of making medical decisions on your behalf should you be incapacitated. All adults should have a health care power of attorney!

Should the financial problems be a result of limited, fixed income, investigate state or federal programs that might help with some of the monthly bills. Your local Area on Aging is a good place to start.

Warning Signals:

Signs to watch for if you suspect an elderly relative might be having trouble handling finances:

• Unopened mail
• Late or unpaid bills; collections actions
• Confusion or lack of interest about what bills have been paid
• Bounced checks
• Disorganized personal paperwork
• Uncashed checks or unclaimed property reverting to the state
• A large number of magazine subscriptions
• Unusual or increasing direct mail or shopping-channel purchases

Read the entire article, Aging Relatives May Need Help With Finances.

Family Financial Freedom Notebook

The following article is written by America's Personal Family Lawyer, Alexis Martin Neely.

Lots of people are wondering, what do I do know that the economy appears to be melting down?

First and foremost, don’t panic. You are not going to end up standing in line for the soup kitchen. Not if you’re reading this right now.

What you are going to do is get more aware of your family finances, learn to live within your means and generally gain awareness you didn’t have before.

Then, you’re going to look back on this “financial crisis” as the best thing that ever happened to us.

One of the most important things you can do is to establish a family freedom notebook. This is a notebook that you use to keep track of everything related to the financial well-being of your family.

At a minimum, here’s what you put in it:

1. Monthly bank statements for every bank account you have, including any custodial accounts in your kids’ names (keep 12 months worth of statements in the notebook and then scan and archive older statements).

2. Monthly brokerage account statements for every brokerage account you have, including college savings accounts, like 529s (keep 12 months worth of statements in the notebook and then scan and archive older statements).

3. Monthly retirement account statements for each of your retirement accounts (keep 12 months worth of statements in the notebook and then scan and archive older statements).

4. Monthly insurance policy statements for each of your insurance policies ((keep 12 months worth of statements in the notebook and then scan and archive older statements).

5. Copies of your insurance policies (keep these forever).

6. Documents related to any other assets owned, such as the pink slip for your car or lease papers if you are leasing your car.

7. Monthly mortgage statements (keep 12 months worth of statements in the notebook and then scan and archive older statements).

8. Monthly credit card statements (keep 12 months worth of statements in the notebook and then scan and archive older statements). Also, in this section, keep a list of all of your credit card numbers, along with their security codes and the 800# on the back of the card. This list will be a lifesaver if you lose your wallet.

9. Any other loan statements or statements evidencing liabilities you may have, such as student loans, personal loans from parents or car loans.

10. Family Profit and Loss Statement: This is a monthly updated ledger of all income that comes into your family and all expenses that go out.

11. Family Balance Sheet: Updated monthly, this will list out the current values as of month’s end for each of your accounts, including liabilities.

12. Estate Planning Section: Your whole estate plan would be too big to keep in your Family Freedom notebook, but you can keep a CD or jump drive with your estate planning documents on it and any documents related to the transfer of assets into your Living Trust. Plus, keep your long-term guardian nominations and your Kids Protection Plan, medical powers of attorney for your kids, and your own health care directives and powers of attorney in this section as they will need to be accessed immediately if anything happens to you.

13. Other personal legal documents: if you own property with anyone else, have entered into any business arrangements, or have personal legal agreements, keep those in this section.

14. Pay stubs: keep a year’s worth of the part of your pay stub that shows how much you got paid, how much went to taxes and how many hours you worked. I can’t tell you how many non-breadwinner spouses have told me they don’t know how much money the breadwinner spouse makes. Bad idea. Make sure you know and have the records.

15. Social Security Statement: You know that green and white letter you get in the mail each year that says how much you’ve paid into social security and how much you can expect to get, keep it here. I can’t promise you’ll actually get this as our system may not have the money to fund it, but you can at least keep the record that shows you paid into the system.

Obviously, this notebook contains very sensitive information, so consider keeping it in a small fireproof safe in your house. Just make sure the safe is not one that can be lifted up and carried away by a thief. Make sure it’s the kind that anchors into the ground or the wall.

Please note: this is not a household notebook or a Family Emergency notebook. That’s a whole different animal and something that SHOULD be kept accessible to other family members, babysitters and household helpers.

SOURCE: Family Wealth Planning Institute

Caring For Your Parents

Last April, PBS aired the program "Caring for Your Parents", which focused on the fact that many adult children are "grappling with an unprecedented social, cultural, economic, and personal revolution as they transition into the primary caregiver role for their aging parents."

This two-hour program covers "today's struggle to keep parents at home, tensions between siblings, and the complexity of shifting caregiver roles through an intimate look at five American families."

After the program, there is a half-hour discussion with medical correspondent Dr. Art Ulene entitled "A Conversation About Caring." During this session, the speakers offer concrete advice and guidance (read interviews with the doctors here)on how to start the conversation, which is quite often the most difficult step in caregiving - and one we cannot afford to avoid.

Watch the PBS program "Caring for Your Parents" online.

Access the Caregiver Handbok.

Caregiver Burnout - Adult Day Care Services to the Rescue

If you are a primary caregiver for a loved one, you are well aware of the daily stress and emotional and physical impact it can have on your health.

Susan learned this first hand when she and her husband, Tom, brought his Mom home to live with them. Mom suffered from dementia and had to be watched constantly. Susan found that when you become a caregiver, you start by giving up a few things you usually do for yourself to make up for the time needed for caregiving. Even though your service is one of love and you are willing to do the sacrifice on behalf of your loved one, you find yourself giving up a lot more as time goes on.

“As a caregiver,” Susan laments, “You are often frustrated that you can’t do enough for your loved one and so guilt and feelings of inadequacy set in. Couple that with feelings of being unduly burdened, of resentment, of stress and then of more guilt at having those feelings."

She continues, "Now don’t get me wrong, I am very glad that I spent those years in caregiving. There were many cherished moments with Mom that only I experienced.”

In order to enjoy those moments and sustain your caregiving momentum, a little respite is essential.

An article posted on About.com by Carrie Hill, PhD states:

“Caregivers who use respite care often tell me that although caregiving is one of the hardest jobs they've ever had, they wouldn't trade the experience for anything. Helping a family member or close friend who has Alzheimer's disease can provide a sense of purpose and great satisfaction. Still, the emotional and physical demands of caregiving make it hard to be a caregiver 24 hours a day, 7 days a week. Without respite care -- a temporary break from the demands of caregiving -- you may be more susceptible to the effects of caregiver stress, such as depression, exhaustion and other health problems.

Carrie Hill, PhD, About.com “Why Caregivers Need Respite CareGiving Yourself a Break Helps You and Your Loved One” Updated: August 3, 2008

Be on the lookout for caregiver burnout. It can creep up on you without your noticing it. Caregiver burnout symptoms can include:

• depression
• anxiety, irritability, or anger
• feelings of exhaustion
• self-criticism
• Withdrawal from usual activities
• trouble with handling caregiving responsibilities
• substance abuse

The need for support for caregivers at home has received national recognition. State Human Resource Departments and Area Agency on Aging Services are offering more counseling and respite services for caregivers. The ARCH National Respite Services is also an organization that is reaching out to educate and support caregivers in many states. There is, however, one service that is highly valuable but very underused:

Adult Day Care to the Rescue!

Adult Day Care respite is two-fold. It gives the caregivers much needed time to themselves and gives their loved ones social and interactive therapy with their peers.

Many adult day services offer such things as:

• Social activities; music, movies, crafts, excursions
• Meals
• Fellowship support
• Assistance with daily living
• Nursing care
• Help with activities of daily living
• Medications
• Physical therapy
• Transportation

Finding an Adult Day Services provider takes a little investigating on your part. It is important to know what you are getting and that your loved one is comfortable with his or her new surroundings.

First: Ask for recommendations.

Check with your local Senior Center, Area Agency on Aging Services, Mental Health Centers, Doctor, Clinic, Family, Friends and neighbors. The best recommendation is by someone who has used the adult day services or is familiar with those who run it.

Second: Call and ask the facility to send you information.

Ask specifically to be sent the application, eligibility requirements and payment information.

Ask to see the calendar of activities, menus, hours and days of operation are needed to be sure to fit your schedule.

Ask about availability of transportation to and from the location and what is the cost.

Ask who runs the facility. Is it private, non-profit or a franchise or part of an assisted living facility or a nursing home?

Third: Visit the Adult Day Care facility.

Go visit the provider location along with the person you are caring for.

See if the staff is friendly.

Check that it is clean and odor free.

Ask about the experience of the staff.

Request a list of references.

Fourth: Find out the cost and payment requirements.

A survey from NCOA/NADSA provides the following information on fees:

“Fees for Adult Day Care providers range from $25 per day to $70 per day, with the average around $50 per day. Many facilities provide services with a sliding fee scale.”

One last word of advice. Don’t feel guilty about taking your loved one to adult day care.

Susan’s mother-in-law complained bitterly about leaving home and going to the adult day care facility, expounding on how Susan just didn’t want her around anymore. This only increased the guilt Susan was already feeling, but Susan was also determined that she needed the respite time the day care would provide and they pressed forward. That evening as Susan picked up Mom and helped her into the car, Mom -- who suffered from dementia -- exclaimed, “That was the nicest resort I have ever been to!”

Click here to learn more about the AOA National Caregiver Support Program.

The National Care Planning Council supports Caregivers and Adult Day Care Providers.