Interesting Times

I myself have never wanted to live in interesting times. I liked my small law practice, my family time and my pets. Fortunately, I also like gardening as I will be doing quite a bit of that in the days to come. Not too much gardening though. There is still quite a bit of work through my office. My office has been set up for some time for telecommuting, though I had hoped to launch that feature more extensively while spending a month exploring Spain or perhaps an unfamiliar beach, but here we are, interesting times.

To all our clients out there, please be assured your cases are being managed. To new clients, we may not have the pleasure of your company but we are prepared to assist you as you too navigate these new challenges. For those who need expedited services, we plan to devote Mondays to powers of attorney and simple wills while you wait (in the comfort of your car). Please call (541)738-2445 or email us for more details at info@cherrytree.law

We are here – though we may need to ask for your patience as our phone system didn’t quite make a smooth transition. Please leave us a message- we hope to chat with you soon about how we can help.

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Tales from the Apocalypse

The dawning of the apocalypse has brought to fruition the closely held dreams of my three children- that school is now canceled-possibly indefinitely. Well, I am glad they have some joy in these troubling times. For the rest of us, as we face an uncertain future and stock up on the necessities of life (coffee- wait I mean toilet paper), the questions of tomorrow bring a certain unease. Here at my office (the one with the beautiful flowering cherry tree) – we are fielding calls from a number of deeply concerned clients. Be assured that we are here for you. We are now offering phone appointments and will be working on an expedited estate planning service for people in need. Please be patient when you call us as we are also working with the needs of our staff to keep everyone employed and safe. Be well and take care.

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Choosing a Guardian for Your Child

Preparing a comprehensive estate plan to protect a child can be an difficult.  On the one hand, parents should be relieved that they are taking steps to guarantee that their child will be cared for after they are gone.  On the other hand, confronting one’s own mortality and having to decide who will manage the affairs of a child can be stressful.  

Out of all of the decisions that parents have to confront, the choice of a guardian stands out as one of the most challenging.  But you don’t have to dread this decision, especially if they follow these steps:

1. Take Time to Choose, But Don’t Take Too Long

Choosing someone to become the guardian is not a decision that should be made lightly, but this doesn’t mean that the decision should keep you up at night, either.  Start by putting together a list of every potential candidates.  Then go through the list and eliminate anyone who, for whatever reason, doesn’t strike you as an good choice, keep in mind that no one is going to be a perfect because they will never be you.  Take some time to think about each likely candidate. 

The key at this stage of the game is to not get overwhelmed with worry about your choices, especially since you haven’t even asked anyone if they are willing to serve.  One of the biggest obstacles to completing an estate plan is getting so caught up in the decision making process that you stop moving forward.  Don’t let this be you — make your list, start to narrow it down, and then proceed to the next step.  Don’t stop planning.

2. Talk to Your Potential Guardians and Encourage Honesty

After you’ve narrowed your list of potential guardians down to a few names, take each one out for coffee (separately) and ask them if they are willing to serve.  Don’t put people on the spot with statements like, “If you don’t do it, I don’t know what we’ll do.” You don’t want them to agree to make you feel better but then back out later. Encourage each person to be honest with you about his or her questions and concerns.  Don’t look for immediate answers; give your potential guardians time to think about things and get back to you. This is an important commitment and should be carefully considered by both of you. 

This conversation may immediately narrow down your list, as some people may tell you that they absolutely cannot serve.  At the same time, talking face to face with your choices may help you to weed out a few more people.  

3. Make a Decision and Put Your Plan into Action

After speaking with your prospective guardians you may be able to make a decision about who will serve.  But if you still need to think about your choice, keep a few things in mind.  First, you can always change your nomination at a later point, and, in fact, many people do.  For instance, it may make sense for young parents to name their parents or older relatives as guardians but later change their estate plans when the original nominee are older and may have difficulty fulfilling this role.  Likewise, as friends and family move, or have changers in their own circumstances parents may have to update their estate plans.  Nothing is set in stone.  

That said, here are some additional questions to consider if you are having a hard time choosing a guardian:

  • Do I want my child to stay in his community and is the guardian willing to move here if s/he doesn’t already live here?
  • How does the guardian interact with my child specifically?
  • Does the guardian have too much going on in his/her own life to care for a child, especially one with special needs?
  • Does the guardian have children, how old are they and can the guardian take on another child?
  • How old is the guardian?  Do I have a backup in case s/he can’t serve?
  • Does the guardian share my values about things like religion, education and finances?
  • if my child has special needs, does the guardian have experience or patience to manage these issues?

Although the decision making process may not be easy, it is a necessary one.  Remember, the worst thing that you can do is to leave guardianship to chance, which is what will happen if you don’t have an estate plan that reflects your wishes.  Once you’ve followed these simple steps and made your decision, put it into effect by meeting with your attorney and drafting the proper documents immediately.  Don’t put it off.

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Guardianship Basics

In Oregon, every adult is assumed to be capable of making their own decisions unless a court determines that the individual is incompetent. If an adult is incapable of making responsible decisions due to a mental disability, the court may be asked to appoint a substitute decision maker called a “guardian.” Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is not able to take care of his/her own affairs (the “protected person”).

If you are a parent who has a child with special needs, it is important to know your options when it comes to managing the medical and financial well-being of your child. Once your child turns 18, your legal relationship with her changes, because suddenly, it is presumed that your child has the ability to make decisions on her own, regardless of her abilities. At this point, one option worth exploring is becoming your child’s legal guardian, so that you can continue to make the important medical and financial decisions on behalf of your child. The following is a basic explanation of what an Oregon guardianships.

The Guardianship Process

The guardian can be authorized to make legal, financial, and health care decisions. Note, if the protected person has assets in excess of $11,000, a “conservator” may need to be appointed to manage finances. Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (a “limited guardianship”). In other words, the guardian may exercise only those rights that have been removed from the protected person and delegated to the guardian.

A guardian can be any competent adult — the spouse, another family member, a friend, a neighbor, or a professional guardian. A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian. If two individuals wish to share guardianship duties, courts can name co-guardians.

In Oregon, any interested party can initiate a request for guardianship. Proper notice of the proceeding must be given to the potential protected person, who then has the opportunity to object in which case a hearing will be held in court. An attorney is usually retained to file a petition for appointment and facilitate the process. The attorney assists the guardians in choosing the appropriate form of the protected proceeding, understanding the legal duties involved and implementing the guardianship successfully.

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DOT Guidance for Travelers with Support Animals

DOT has provided some much-needed guidance on airlines’ responsibilities to accommodate support animals. Unlike service animals, which must be trained and are certified to assist people with disabilities, emotional support animals are not required to have undergone such training.  Support animals provide companionship and often help people with depression, anxiety, and certain phobias. 

In the past year, multiple major airlines have been imposing sweeping restrictions on animal flight companions. Delta banned pit bulls. United Airlines went further, banning pit bulls and 20 other dog breeds. However, the federal Department of Transportation (DOT) is now rejecting such categorical bans. Under new guidance released in August, airlines may no longer reject breeds of service and emotional support animals without an individualized assessment of whether the animals pose a safety threat. 

In a summary of the new guidance, the DOT explains that airlines may prohibit animals if they are too large or heavy for the plane. While prohibitions on animals less than four months old are permissible, limits on the number of service animals are not allowed. When flights are more than eight hours long, airlines can require travelers to provide proof that the animal will not have to relieve itself mid-flight. 
 
Airlines may require passengers to provide documentation related to an animal’s training and behavior, as well as vaccinations, provided that the documentation “would assist the airline in making a determination as to whether an animal poses a direct threat to the health or safety of others.” Airlines are allowed to require people with emotional support animals, but not service animals, to go through check-in an hour prior to take-off. 

The new guidance is an interim step while the DOT works on proposed, formal regulations updating the Air Carrier Access Act, expected next spring or summer. Congress mandated that the DOT issue new regulations in 2018, as part of a larger bill that also directed the Federal Aviation Administration to create an Airline Passengers with Disabilities Bill of Rights. According to the industry trade group Airlines for America,  the number of people traveling with emotional support animals increased from 481,000 in 2016 to 751,000 in 2017, as reported by the Washington Post.C

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Probate: Basic Steps

  • Probate is often consider an insurmountable feat with untenable complexity- however, I jokingly tell my clients that’s California NOT Oregon. Oregon Probate is a series of relatively straight forward steps that must be taken in a particular order. The complexity often comes more from the people involved or the nature of the assets. An attorney’s job is to help you understand the steps, file the proper paperwork at the proper time and make appropriate decisions about the people, property and debts involved. Although I have been working as a probate attorney for over 20 years, I find that each case has unique individuals with different needs and addressing that complexity often results in a simplified probate experience.
  • The general steps for probate are as follows:
    • Secure Decedent’s Assets & Pets Needing Immediate Attention
    • File the Petition to Open Probate
    • Locate and Manage Estate Assets
    • File an Inventory of the Decedent’s Assets with the Court
    • Search for Creditors and Claims Against the Estate
    • Prepare Assets for Distribution, Pay all Approved Estate Claims
    • Prepare and File All Tax Returns, and Pay All Taxes Owed
    • File an Accounting with the Court
    • Distribution to Heirs/Beneficiaries
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Probate: Initial Considerations

After a loved one has died, family often believes they must immediately contact an attorney to start legal proceedings. Although I believe it is important to take a few minutes to talk to people under such circumstance, as an attorney what I often windup telling them is:

  1. Understand that the reason to file probate is to manage the assets of the deceased. If there are no assets, probate may not be needed.
  2. Having a will does not start probate: a will is more like a to-do list that cannot be completed without a judge’s approval to act.
  3. A will nominates a person to act as personal representative- prior to appointment a personal representative (executor) does not have authority to distribute the decedent’s property.
  4. Only a court can appoint you as a personal representative and grant you the power to complete the instructions in the will.

Unless there are pressing concerns with property, asset management, dependents or other emergency situations, probate can be initiated at a measured pace. Immediate tasks may include:

  1. Complete funeral and/or burial process.
  2. Secure personal property of the deceased.
  3. Make sure pets are safe.
  4. Understand the needs of surviving dependents of the deceased.
  5. Locate the deceased’s assets: is there money or property in the decedents name alone?
  6. Consider where probate will be filed? Did the deceased have money or property in Oregon or elsewhere?
  7. Ask yourself: Are prepared to take on the role of personal representative (executor)? It can be time consuming and stressful. Your attorney will help you but you will be doing the leg work.
  8. Make an appointment with an attorney.

In the meantime, take time to grieve. We are sorry for your loss.

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Don’t Put Off Estate Planning

According to the court documents, legendary singer Aretha Franklin did not have a will or trust when she died, despite reportedly having a son, Clarence, with special needs. The lack of an estate plan opens up the intensely private singer’s estate to public scrutiny and unnecessary costs, and means that there are no specific provisions to protect Clarence.

When someone dies without a will – called dying “intestate” — the estate goes through probate and is divided according to state law. Although it is often hard to know where to begin, a trusted estate planner could have helped the Queen of Soul create a trust that would have avoided probate. But perhaps more importantly, that estate plan could established a special needs trust to ensure that Clarence would receive proper care for the rest of his life and preserve any public benefits he may be receiving.

Estate planning is important even if you don’t have Aretha Franklin’s assets, and it’s doubly crucial if you have a child with special needs as she did. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and to create special protections for your child with special needs before it’s too late. If you don’t want your plan for your loved ones to simply be “I Say a Little Prayer” contact your special needs attorney to begin working on your estate plan now. Its not as hard as you think and you will feel better when its done.

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Will your Family have to pay your debts when you Die?

When you die, your debts do not die with you. However, your estate, is usually the first in line to pay any debts you leave behind. Your estate is made up of any money or property left in your name alone or in a trust you have created. If your estate does not have enough money, the debts will often go unpaid unless there is another person listed as a co-signor or co-owner of a secured debt. Co-signors of a particular debt are responsible for that debt ex: credit card debts. Joint owners of property are still responsible for any debts on the joint property ex: real estate or a car. In addition, spouses may be responsible for some debts: particularly medically debts. However, it is rare for your children to have any liability for your debts without co-ownership or co-signing.

Your will or your estate plan will dictate how creditors are paid and how your heirs are protected. Consult with your attorney to determine how your estate can be protected.

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Contribute to ABLE Accounts via a gift card.

Gift certificates can be a convenient and appreciated way to celebrate and mark a special occasion. But until recently, it has been difficult to give gift certificates to individuals with special needs for fear of compromising their SSI, Medicaid or other governmental programs. However, using a Gift of Independence Card, we can now place funds directly into a person’s ABLE Account.   The cards are offered in denominations from $25 to $200. There is no expiration date for redeeming the funds.

ABLE Accounts are a relatively new and growing savings tool for people who experienced disabilities before age 26.  “ABLE” stands for the Achieving a Better Life Experience Act, which Congress enacted in 2014 and patterned after college savings (“529”) accounts.  Funds deposited in ABLE accounts can be used for a wide range of disability related expenses, including expenses related to education, housing, transportation, employment training and support, without compromising most government benefits such as HUD, SSI, or Medicaid.

To learn more about ABLE accounts and whether they are an appropriate option for you or a loved one, contact your special needs planner.

For more information on the Gift of Independence Card click here: http://www.ablenrc.org/news/giving-and-receiving-gift-independence-gift-cards

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