Is a conservatorship right for your family? Usually the answer is no.

Conservatorships are drastic, expensive, and stir up controversy, and yet most of the time they could have been avoided with some advance planning.

Let’s review the cons of a conservatorship.

Loss of Rights: When a court orders a conservatorship, it takes away rights of the conservatee. These include the right to make medical treatment decisions, the right to make financial decisions, the right to drive a car, and the right to vote. Loss of these rights by court order may be psychologically devastating to the conservatee, particularly when in a fragile mental state to begin with.

Loss of Privacy: Conservatorships proceedings are public records. The incapacity of a parent, the responses of family members and the documentation filed in court is open to review by the public. Granted that the actual details of the conservatee’s medical and psychiatric condition are under seal, but enough information is open for review to make the process uncomfortable or worse for those involved.

Expense: Conservatorships are expensive. The attorneys fees involved can be more than the fees for a probate. Because of the potential termination of fundamental rights, the conservatorship process is complex and technical. The court does not issue the order lightly. Fees are correspondingly high. Not only are the fees high for the Conservator’s attorney , but it is common for the court to appoint an attorney to represent the Conservatee, who is then paid out of the Conservatee’s estate. Any family member who wants to have a say in the process may also need to hire his or her own attorney. If there are any disagreements, such as about the treatment of the Conservatee, the living arrangements, the financial arrangements, the fees will increase dramatically, to say the least.

Multiple Parties: In addition to multiple attorneys, multiple conservators may be required. The courts will make an order for a conservatorship of the person and/or the estate. The same person can be appointed in both capacities, but it is not unusual for two different people to be appointed, and this may require separate attorneys representing each Conservator.

Stay tuned for Part 2, More Disadvantages, and Part 3, Advantages of a Conservatorship.

You can contact an attorney at the Law Office of Roger Billings at (916) 786-8706, or by clicking here.

You find out about a Probate court petition that you do not agree with. What do you do? According to Keith Davidson of the California Trust Estate & Probate Litigation Blog:

When faced with a Probate Court Petition that you do not agree with, you must object. Luckily, in California you have some leeway on when you can object because our Probate Code allows interested parties to object orally at the initial hearing. In other words, you technically do not have to have a written objection before the initial hearing date.

If you don’t have time to prepare a written objection or hire an attorney prior to the hearing, show up on time and make an oral objection. But if you do have time, a written objection is better, since the chances are higher of getting your point across if it is in writing.

If you are going to rely on an oral objection at a probate court hearing, then be sure to show up on time. If you want to play it safe, then file your written objection well before the hearing date so the judge will be sure to read it.

See the entire article here.

The best practice is to hire an attorney prior to the hearing. Going to court without an attorney is like walking through a minefield without a guide. But if there is no time, show up anyway and object.

You can contact an attorney at the Law Office of Roger Billings at (916) 786-8706, or by clicking here.

Photo by Karen Neoh

Hillary Clinton has taken some firm positions with respect to estate taxes. According to Jeff Brown of CNBC:

Clinton wants to cut the exemption for the “death tax” from $5 million today to $3.5 million, with a 45 percent tax on amounts between that and $10 million. She’d set a 50 percent rate on assets over $10 million, 55 percent over $50 million and 65 percent on amounts exceeding $500 million for an individual, $1 billion for married couples.

Her opponents argue that her plan would injure small businesses. But whether a Clinton victory would mean that she will carry out these proposals is another matter. Brown continues:

Of course, Clinton’s proposals are just planks in a platform. Most experts see little chance they will become law anytime soon, as the odds favor a split Congress even if she is elected and since Republican opposition to tax increases is solid.

Nevertheless, estate tax experts recommend business owners take some precautions under today’s law.

“I recommend that people looking to reduce their estate tax start by gifting money to their children,” Hryck said. “Each individual can gift $14,000 (a year) to each child tax-free, $28,000 as a couple.”

See the entire article here.

Donald Trump, on the other hand, proposes eliminating the estate tax altogether. His opponents assert that his plan is typically the one that would benefit himself the most, but again his ability to actually carry out his proposal would not be great.

So regardless of the outcome, continuing with gifting programs is good advice.

You can contact an attorney at the Law Office of Roger Billings at (916) 786-8706, or by clicking here.

In general, I am strongly opposed to book burning of any kind. But in this case, I can only say, burn, baby, burn! Like Posner, I have long argued that the Bluebook and its hundreds of pages of useless, time-wasting rules should be abolished and replaced with a much simpler citation system, perhaps similar to those used in other academic fields. It would save lawyers, legal scholars, and law students enormous amounts of time and effort.

Judge Posner has developed an alternative simplified system which is linked in the article. See the entire article here.

Below is a photo of my own copy of the venerable fourteenth edition of the blue book, which I haven’t burned yet.

You can contact an attorney at the Law Office of Roger Billings at (916) 786-8706, or by clicking here.

There are good reasons for courts to impose conservatorships, particularly to protect individuals vulnerable to fraud. But the conservatorship order has a drastic effect. It takes away the right to manage a person’s own affairs.

Some courts have been increasing the scrutiny of conservators in order to ensure that the conservatorship actually provides protection rather than the very exploitation it is designed to prevent. Using auditors in Minnesota is one example.

Since 2012, auditors working for the Minnesota court system have been scrutinizing how those individuals spend the money entrusted to them, a process that has accelerated since a more robust financial reporting system went online in 2014. Most audits find everything in order. But in 10 to 15 percent of the cases, auditors find problems serious enough to require a judge’s review.

One of the unfortunate consequences of this increased scrutiny is that it makes the conservatorship process even more difficult and expensive. More time and effort must go into the reports submitted to the court. Scrutiny and accountability are to be encouraged, but the expense of unnecessary conservatorships should be avoided.

Before filing for a conservatorship, all realistic alternatives should first be explored. This is another reason to prepare an estate plan in advance. Having a complete estate plan in place creates more alternatives to a conservatorship if and when the time comes to confront the problem of incapacity.

Find the entire article from the Minnesota Star Tribune here.

You can contact an attorney at the Law Office of Roger Billings at (916) 786-8706, or by clicking here.

Photo credit: Steven Depolo.

Their mother was required to mail the organizer $2,500 to receive her prize.

Conservatorships are not cure-alls or panaceas, but they do have a particularly important role in protecting vulnerable adults from being taken advantage of.

A surprising discovery by two sons managing their mother’s trust was reported in a recent article in the Wall Street Journal. Their 72-year-old mother with advancing dementia asked for increasing distributions of cash but was leaving her bills unpaid.

The woman explained that she had won a contest and was required to mail the organizer $2,500 to receive her prize. The son contacted the mother’s advisers, Amy Merrill and Kristin Zeigler of TrueWealth Management in Atlanta, to share the discovery and address the situation.

“It became clear at that point where the money had been going,” says Ms. Ziegler, whose firm manages $1 billion for 400 clients. “She was being taken advantage of, and we needed to put more effective safeguards into place to protect her going forward.”

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By being declared conservators of their mother’s estate by a probate court, the sons would be given legal responsibility for her finances and be able to manage them for her, instead of simply distributing cash to her.

Filing for conservatorship in court is comparatively drastic measure, and should be preceded by careful consideration of all of the options as well as consultation with a competent attorney.

The entire Wall Street Journal article is found here (subscription required) and here.

You can contact an attorney at the Law Office of Roger Billings at (916) 786-8706 or click here.

Successful estate plans are those that accurately express your wishes. As wishes change, the plan needs to be updated. A new year is a good time to review your estate plan and make sure it is up-to-date. Time Magazine published a short handy checklist.

Do the fiduciaries designated still pass muster?

[M]ake sure that the people that you’ve named in your plan as fiduciaries — such as your health care agent, attorney, executor, or trustee — are still appropriate. If your personal or professional relationships have changed, check to see whether your estate plan documents need an update.

Life insurance is another area of planning that tends to be neglected after it is set up.

As part of a regular checkup, you should consider whether any significant life changes require adjustments to your life insurance coverage. Review your beneficiary designations to make sure they name the appropriate people, and ask yourself the following questions: Have you gotten married or divorced? Have you had additional children, or have older graduated college or moved out of the house? Have you changed jobs and lost employer-provided life insurance? Has your spouse or partner cut back on his or her work schedule? Have you purchased a more expensive home with a bigger mortgage?

Bringing the estate plan current is a great way to maintain peace of mind and start the new year right.

See the entire article here.

The new year is a time of pivoting, of looking two ways at once.

We look back at the year 2015 that is gone. We remember and assess. At the same time we look forward to the year to come, 2016, with resolve and with some uncertainty.

Such thinking is intensified when we remember those who have passed on. On a personal note, this is particularly true for me. Tomorrow is the third anniversary of my father’s passing. I wish it were not so. I wish that he and others I miss were still here, but none are exempt. Eventually, the time comes for all of us.

I recently learned that the cardinal, the little bird pictured above, is often thought of as a reminder that our loved ones are near. This is a comforting thought for me, and a motivation. It motivates me to want to act in a way that is a credit to their memory.

This desire reminds me of the concluding words of a favorite hymn:

Be still my soul: When change and tears are past,
All safe and blessed we shall meet at last.

These words express my belief in ultimate optimism. At the start of this year of 2016, I am hopeful. I am hopeful we will remember the lessons from our past experiences, and that the new year will abound in good for each of us.

Happy New Year!

Photo by Dawn.

As the year comes to a close, it’s a good time to be reminded that if an investment seems too good to be true, it probably is. A New York financial planner faces up to 16 years in prison for promulgating a Ponzi scheme.

Frederick Monroe of Queensbury, N.Y., who was registered with the Financial Industry Regulatory Authority as having been an employee of Voya Financial Advisors since 2006, has pleaded guilty to money-laundering and scheming to defraud, among other charges, which will lead to a prison sentence of between three and 16 years when he is sentenced in February, according to the newspaper.

Monroe admitted to taking more than $1 million from at least 20 clients in personal checks from 2002 to May of 2015, money that he then used to pay earlier clients in his pyramid, as well as pay off his own personal credit card, mortgage, hotels and air flights, the Times Union writes.

So let’s make resolutions for the new year, but let’s make sure they are realistic goals. Then we might be less vulnerable to scams. As devastating as the court’s sentence will be to Frederick Monroe, it fails to tell the story of the many trusting investors who lost retirements and life savings in his wake. Buyers beware.

The entire article from the Trust Advisor can be found here.

Photo by Seyed Mostafa Zamani

Farmers spend their lives investing their money, their time and the sweat of their brow into their fields and orchards. It is a cruel but all-too-common fate that in the end, when the owner passes on, the land must be sold to pay tax bills or lawyers’ fees. But good planning can and should avoid this result. A recent article in AgWeek discusses the value of estate planning for farmers:

Farmers should be able to pass their estate down to future generations, for it to be preserved, or even grown, for their heirs to enjoy. To accomplish that end, farmers need to develop an estate plan. And after developing such a plan, farmers should also regularly revisit that plan to determine if it is still suitable in terms of accomplishing the goals desired by the farmer.

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Ownership of farmland, ownership of mineral rights and ownership of other high-value property are all triggers for people to seek the advice of a good estate planner. The money spent on estate planning pales in comparison to the unnecessary tax consequences of a poorly planned or unplanned estate. Find a good estate planner and preserve the fruits of your labor.

In future posts, we will discuss specific strategies for keeping a farm together when the parents pass away. Read the entire article by Peter Welte here.

Photo by maureen.