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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Unfinished Business: The Problems of Procrastination & 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:

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New National Plan to Support Caregivers

The Recognize, Assist, Include, Support and Engage (“RAISE”) Family Caregivers Act was signed into law on January 22, 2018.  Although no funds have yet been allocated to support this program, the Secretary of the Department of Health and Human Services has been given 18 months to create a national family care-giving strategy.  The Act requires that the care-giving strategy “identify recommended actions” for all levels of government, as well as individual care providers to promote the adoption of “person-centered care,” improve caregiver training and education materials, and enhance financial security and workplace protections for caregivers.  With the official recognition of the unmet needs of care-givers, we hope will come real world tools to improve resources for all.

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Can Special Needs Trusts Reimburse Travel Expenses?

Everyone is familiar with the high cost of travel and the difficulties of staying in touch with distant family.  But families of people with special needs often face high travel expenses from medical emergencies, unforeseen circumstances or constant care taking.

Whether these expenses can be reimbursed and how depends on the type of special needs trust. If the trust was created as a third-party trust, meaning that it is funded with money from someone other than the trust beneficiary,then family members can typically be reimbursed for these expenses if allowed under the trust.  Stricter rules apply, however, where the trust is set up as a first-party trust, meaning that is funded by the beneficiary’s own money.

Distributions from first-party trusts are subject to the “sole benefit” rule, which is meant to ensure that trust distributions are used solely for the benefit of the trust beneficiary.  Prior to 2012, no distinction existed for family members’ travel expenses between first- and third-party trusts – travel to visit the beneficiary was allowed.  But that August, the Social Security Administration (SSA) revised its Program Operations Manual System (POMS), the guidebook that agency employees follow when determining a person’s Supplemental Security Income eligibility, in a way that appeared to interpret the “sole benefit” rule for first-party trusts to bar reimbursement of family members’ travel expenses.

Following an outcry by disability advocates, the SSA rescinded the change and implemented a compromise in May 2013. Although the compromise retained the general prohibition on reimbursement of travel expenses from first-party trusts, it created two, relatively broad, exceptions.The first exception apples to medical treatment. Specifically, the POMS states that trust distributions are allowed for the “payment of third party travel expenses which are necessary in order for the trust beneficiary to obtain medical treatment.”Second, first-party trusts can reimburse travel expenses where the trust beneficiary who lives in an institution, nursing home, or other long-term care facility or  supported living arrangement, and  if the travel is “for the purposes of ensuring the safety and/or medical well-being of the individual.”

To find out more about whether your trust can reimburse family members’ for travel expenses, determine the type of trust you have and investigate how the above rules apply.  For more information on how your trust works, you are welcome to contact our office and make an appointment to speak with the attorney who can review the specifics of your circumstances.

Note: It is expected that the SSA will soon issue new directives broadening the allowable distributions for such expenses.  We will update our readers if and when this occurs.

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Final Tax Bill Expands Medical Deductions

Federal law allowed families with medical expenses exceeding 10 percent of their adjusted gross incomes to deduct certain medical expenses from their income taxes, provided that they itemize their deductions. For the two months leading up to passage of the new tax bill, the entire future of the deduction was in doubt. The version of the tax bill that the House of Representatives passed November 16, 2017, would have scrapped the deduction altogether, prompting an outcry from disability rights advocates.  The Senate version, however, maintained the deduction.

The final version, in fact, expands the number of families eligible for the deduction, at least temporarily.  For the current 2017 tax year and 2018, all families whose medical expenses exceed 7.5 percent of their adjusted gross income will have the option of deducting certain medical expenses. The threshold will, however, revert back to 10 percent for the 2019 tax year.

This 7.5 percent benchmark mirrors regulations that existed prior to the Affordable Care Act (ACA), which had raised it to 10 percent for non-elderly families. For the elderly, the 7.5 percent threshold expired in 2016 and also rose to 10 percent.  According to the IRS, 8.8 million households, or almost 6 percent of tax filers, claimed medical deductions in 2015.



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