Red, White & Blue: Happy Independence Day!

,

What do you think of when you think of July? I think about family picnics, vacations, fireworks, the MLB All Star Game, the beach, hometown festivals, and a cold bottle of beer on a hot day.

But mostly I think of Independence Day!

The Fourth of July means a great deal to me as the son of immigrants, with both a mother and father who risked all by leaving home forever, crossing an ocean, and coming to a country they didn’t even begin to yet know.

My parents were from in East Germany. Neither knew English. Neither had been outside of Germany. Indeed, neither had travelled at all very far from their homes—my dad’s small farming town and my mom’s city life in nearby Dresden.

In 1960, the wall divided East and West Germany, but was still just a bit porous. It wasn’t yet the Iron Curtain of the forthcoming years, where leaving was all but impossible.

My parents saw what was coming, or sensed it at least, and decided escaping was worth the enormous gamble. The dream was to make it to America, and become Americans.

With a day-long work visa, my dad went to West Germany. From there, you could pretty much do what you want – West Germany was a democracy with complete freedom of travel.

A Cabinet Maker’s Journey

My dad had the following possessions for a trip halfway around the world: a small suitcase of clothes and personal items; a rolled-up master’s degree in cabinet making; and $500 (in the form of five $100-dollar bills) squirreled away. That was all.

My dad arrived at Ellis Island with the good word from family acquaintances (from Czechoslovakia), who had emigrated to Chicago, that there was plenty of available work in the Windy City.

So, he took a Greyhound Bus from New York to Chicago. When he arrived at Chicago, no doubt feeling somewhat disoriented and overwhelmed, he almost had his suitcase (his one possession!) stolen by the bus driver.

(The bus driver had given him a claim check ticket, but now claimed the claim check ticket didn’t match, and that my dad couldn’t have his suitcase until this could all be figured out by the home office. My dad didn’t know about any home office, but he did know he couldn’t possibly even let the suitcase out his sight. The driver tried some more flim flam…my dad insisted on his suitcase…there was a standoff, and eventually the driver realized he’s needed to find a more gullible tourist, and relented.)

He lived in downtown Chicago with his family friends, worked two jobs, and wrote my mom often. It was understood by all that the mail was being opened and read, both by the East Germans and the Americans.

Eventually, my dad decided he was settled enough to have my mom come over. My mom followed the same path—day-long work pass to West Germany, boat trip to New York, bus to Chicago.

American Dream

american flag and hat

They worked four jobs between them, trying to save money. The dream, of course, was to save enough money to live in their very own apartment, buy a house, and ultimately raise a family.

They learned English by watching TV and trying to read the newspaper during the small windows of time when they weren’t working. But the folks they were in daily contact with, both at work and at home, were Czech.

Consequently, they ended up learning some pretty good Czech first! When they realized Czech as a second language was helpful, but not nearly as helpful as learning English was, they began speaking only in English. They would force themselves in all social situations to use English. They even opted for more TV, and forced themselves to go out into the city, to put themselves in situations where they would have to use English.

Of course, with this background, July 4th always held special meaning for my family. It was a holiday we always celebrated with a huge picnic, along with my parent’s other immigrant friends. And eventually the talk always circled back to giving thanks for being American, living in America, breathing free air. Every Independence Day I give a silent thanks to my parents for giving me the chance to be where I am today. All the work I do, to maximize charitable giving in Iowa, is a celebration of the opportunities we have to make our own lives and the lives of others better.

pie with sparklers

So, this Fourth of July take a moment to think about what being an American means to you. How does philanthropy and giving charitably fit into your vision for a better-together nation? I’d love to hear your thoughts as well as your family’s immigration story. Share in the comments below or reach out to me at any time!

/by

June GoFisch Book Club Read: The Bettencourt Affair

, ,
book club june

Spread out your beach towel (even if it’s just in your own backyard) and crack open this month’s GoFisch Book Club pick: The Bettencourt Affair, by Tom Sancton.

Bettencourt Affair book cover

The book takes its readers on twists and turns through an all too real French soap opera of the rich, powerful, and famous. Its characters including Liliane Bettencourt, one of the richest women in the world and heiress to the L’Oreal cosmetics fortune; former President of France, Nicolas Sarkozy; an intriguing (or scam) artist; a worried (or jealous) daughter; and a whole slew of lawyers, judges, and other professionals wrapped into the web this story weaves. There’s also some interesting WWII back story that comes into play as well as political payoffs and quid pro quo. It’s a quick read and sumptuous in the surrounding luxury of private jets, islands, and Swiss bank accounts. Yet, entirely sobering when remembering that all this wealth caused the emotional heartache, numerous lawsuits, and ruined careers in its wake.

GoFisch Book Club Flyer

 

Why is this the GoFisch book club pick of the month? Despite its tabloid-esque plot, legal aspects of estate planning are plentiful throughout the life and times of the players with multiple types of trusts, a will that’s being constantly updated, transfer of long-term capital assets, questions of testator incapacitation, multiple conflicts of interest, and impressive charitable giving tools and tactics.

One of the central questions asked throughout the legal battle that ensues throughout the latter half of the 416 pages is: did one man (François-Marie Banier) take advantage of a wealthy old woman or was he simply the supportive friend and recipient of numerous unsolicited gifts. In this course of all of this, multiple other advisors, employees, and politicians get implicated in “l’affaire Bettencourt” as the courts question who did and did not unduly benefit from Bettencourt’s supposed generosity, and who may or may not have had unethical influence over her decisions. The answers to these are answered in part from the decisions of the courts, but

Also, for anyone interested in the legal systems of other countries The Bettencourt Affair offers a sort of crash course on explaining how France’s judiciary operates and how it.

As you’re reading this book consider the estate planning-related questions:

  1. What role did estate planning play in the Bettencourt Affair?
  2. Do you think Liliane Bettencourt;s estate was taken advantage of and if so, by whom?
  3. Do you believe Liliane Bettencourt was of sound mind and body in order to make the financial decisions and gifts she did? What characteristics come into play when proving incapacitation and need for guardianship or conservatorship?
  4. Just for fun…if you had the kind of wealth that the Bettencourts did, what kind of trusts would form and who would the trusts benefit? What organizations would you like to benefit from your tax-wise philanthropic efforts?
  5. What are your thoughts on the French judicial system as exemplified through this book? How does it compare to the U.S. for both the better and the worse?

It’s worth noting here that there almost an endless number of different types of trusts and an adept estate planning attorney can help their clients form a trust that fits with their estate planning, financial, and charitable giving goals.

 

coffee-book-table-word-nerd

It’s also important to remember that trusts are certainly not just for the wealthy. Indeed many regular folks like you and I can stand to benefit from creating different types of trusts. After (or before) you dive into this GoFisch Book Club pick for the month, don’t hesitate to contact Gordon Fischer Law Firm with your trust-related questions or for a consultation if a trust fits your individual needs.

Leave your thoughts on the book in the comments below and let us know if you have any estate planning or nonprofit-related book picks for the upcoming months!

/by

What a Living Will & Health Care Power of Attorney Mean for your Medical Care

, ,
xray-doctor

One of the six main parts of an estate plan that every adult Iowan should have is a health care power of attorney (POA). This legal instrument allows you to designate the person that you want to make health care decisions for you in the chance that you become incapacitated and unable to make such decisions for yourself.

6 Things Iowans Should Know About Health Care Power of Attorney

Who can be my Health Care POA Representative?

The person you pick is your agent/representative for purposes of health care decision-making and should be (a) a competent legal adult; (b) someone you trust would make health care decisions that align with your best interests; and (c) someone who agrees to the role. Some people elect to have the same person be their designated proxy for both the health care and financial powers of attorney. Other folks choose two different individuals for these roles.

It is highly advised to name an alternate representative in case the person you appoint becomes unable or unwilling to act on your behalf.

The law does not allow your health care designated agent to be a health care professional providing health care to you on the date you sign the document. It also cannot be any employee of the doctor, nurse, or any hospital or health care facility providing care to you. The only exception is if that employee is a close relative.

What types of Health Care Decisions does a POA Cover?

A health care power of attorney can govern any kind of decision that is related to your health that you allow. You could, for example, limit your representative to certain types of decisions. Or, you could allow your representative to make decisions for any type of health care choice/issue that may arise. This includes decisions to give, withhold, or withdraw informed consent to any medical and surgical treatments. Other decisions could relate to psychiatric treatment, nursing care, hospitalization, treatment in a nursing home, home health care, and organ donation.

 

Assorted pills

When Would I use a Health Care POA?

A health care POA comes into play only when, in the certified and recorded opinion of your attending physician, you are unable to make health care decisions for yourself. Your named agent is then able to make decisions regarding your care, receive access to records, communicate with health care providers, and other important actions that would otherwise be off limits.

What is a Living Will?

The name of this document is bit of a misnomer. Sometimes referred to as an advanced directive, a living will is best thought of as a written declaration that informs health care providers of your desire to NOT have life-sustaining treatment continue if you are diagnosed as terminally ill or injured, are unable to communicate your choices regarding your treatment, and such treatment would simply prolong the inevitable and imminent process of dying. You may consider a living will an important part of the whole that is your health care power of attorney document

Under Iowa’s Living Will Law, a living will does not permit withholding or withdrawing food or water unless they are provided intravenously or by a feeding tube. Additionally, medication or medical procedures necessary to provide comfort or to ease pain are not considered life sustaining, and may not be withheld.

Because of the sensitive nature of the living will, before signing the document make certain the provisions included align with your philosophical and/or religious beliefs and wishes.

Important Definitions

“Life-sustaining treatment” is defined as the use of medical machinery such as heart-lung machines, ventilators, tube feeding, and other medical techniques that may sustain and possibly extend your life, but which won’t, by themselves, cure your condition.

“Terminal condition,” under Iowa law, is defined as an incurable or irreversible condition that without life sustaining procedures, results in death within a relatively short time or a comatose state from which there can be no recovery, to a reasonable degree of medical certainty.

In all states the determination as to whether you are in such a medical condition is determined by qualified medical professionals—typically your attending physician and at least one other medical doctor who has examined or reviewed your medical situation. The decision must be recorded in your medical records.

 

doctor stethoscope

How do I Make a Living Will?

This is one of the documents I include in the estate planning packages for my clients, if they so elect to have one. The first step, at least when working with GFLF on your estate plan, is filling out my Estate Plan Questionnaire, which is where you can choose “yes” or “no” for creating a living will.

In terms of qualifications, you must be a competent, legal adult who is age 18 or older. The declaration can be signed in the presence of two witnesses (who also must be 18 or older and should not be family members if at all possible) or a notary public. Note that health care employees responsible for your care cannot be the witnesses.

Of course, the declaration for a living will must be signed voluntarily and without coercion.

What do I do Once I Sign a Living Will?

The original living will must be given to your doctor in order for it to be acted upon. Therefore your health care designated agent should have access to the original if the time comes when it is need.

Under Iowa law, it is your responsibility (and therefore your health care proxy if you are unable or incapacitated) to provide your attending physician (the doctor who is primarily responsible for your care and treatment) with the declaration. This attending physician might not be your family doctor, but it’s smart to give a copy of the living will to your family doctor to have on file. In addition, the living will’s existence should be made known to members of your family.

What Happens if I Change my Mind About my Living Will?

A living will is revocable at any time. You may revoke the document easily by notifying your attending physician of your intent to do so. This communication of intent will then be recorded by your attending doctor as a part of your medical record. If this is the case I also recommend contacting your estate planning attorney and health care designated agent to communicate your change. Depending on what is written in your health care POA that document may need revisions or additions, which is something your estate planning attorney can facilitate.

surgeons walking down hallway

What About a Living Will Made in Another State?

This is a good question as each state has its own laws related to living wills and such decisions. A living will made in another state will be valid in Iowa to the extent that the declaration aligns with Iowa laws on the matter.

That being said, it’s best to have a current living will declared in the state you reside in and are most likely to receive care in. So, if you signed a living will while living in Colorado and then move to Iowa, it’s best to sign a new living will that is specific to Iowa’s laws. (Plus, moving across state lines is one of those big life changes that mean you should update your entire estate plan to be sure it’s valid under your new home state’s estate, property, and inheritance laws. So, you may as well update your living will while you’re at it!)

What Happens if I don’t Have a Living Will?

Without a living will stating your directives, others will be forced to decide if life-sustaining procedures will be used for you. (Typically this is a situation one does not want to place on their loved ones.) If you have a health care power of attorney, that representative will make the decisions regarding life sustaining treatments and procedures.

If you also don’t have a health care power of attorney in place, Iowa law states that the attending physicians and the first person available from the following list will make such health care decisions for you  in front of a witness:

  • A guardian, if applicable (Note that a court appointed guardian must obtain court approval before making this decision.)
  • Your spouse.
  • Your adult child (or a majority of your adult children who are available).
  • Your parent or parents.
  • Your adult sibling.

Disposition of Final Remains: Save your Loved Ones Headache & Ambiguity

Communication is Key

Just like it’s important to discuss your estate planning decisions with your executor and family, it is equally important to discuss your health care and life-sustaining wishes with the person who will be your agent. You may also plainly state directives on your health care power of attorney form such as “I want all available organs to be donated in the event of my death.”

Review and Get Started

Whew. That was a lot of important information in one blog post. Let’s review how the two different but compatible documents of health care power of attorney and a living will:

  • Your health care power of atttorney gives a proxy your designate and trust the authority to make medical decisions for you if you are unable to make them for yourself.
  • The living will is a document specifically directing your physician that certain life-sustaining procedures should be withdrawn or withheld if you are in a terminal condition and unable to decide for yourself.

You can have a health care power of attorney document without having a living will. And, while not advised to not have a health care power of attorney document in place, you could technically have a living will without a health care power of attorney.

If you don’t have health care power of attorney or a living will in place, there’s no time like the present to make your decisions known and recorded well before the unexpected happens. Fill out my easy Estate Plan Questionnaire to get started. If you have any questions about either of these documents, don’t hesitate to contact me at gordon@gordonfischerlawfirm.com or by phone at 515-371-6077.

/by

Hot Off the Press: March Edition of The Iowa Lawyer

,

The March issue of The Iowa Lawyer magazine is out and I’m happy to say that includes Gordon Fischer Law Firm’s latest piece on how to account for digital assets in estate and business succession planning. Entitled “Down Low on the Download,” the article covers points including an overview of the Digital Assets Act, how digital assets should be considered in lawyers’ succession plans under Iowa Court Rule 39.18, and easy steps all Iowans can take to include digital assets in planning for the future. Click to page 9 to read more.

March Iowa Lawyer

Also in the Iowa State Bar Association’s publication are stories on local rules, a profile on Iowa Legal Aid’s new director, and a cover piece on a Vinton lawyer (who happens to share the Fischer last name) who tragically lost his office to a fire.

If you’re interested in reading GFLF’s previously published articles in past editions, click here to scan through the archives.

/by

7 Things Every Iowan Should Know About Financial Power of Attorney

, ,

You’ve probably heard you need to have a financial power of attorney in place, but the whole thing seems a little ambiguous…what does this important document (which is an important part of a complete estate plan) actually mean? Let’s cover the basics.

What is a financial power of attorney?

A financial power of attorney (“POA”) is a legal document that designates someone to handle your financial decisions on your behalf, if you are unable to do so while living, due to incapacitation. (Note that upon death, your financial power of attorney terminates and your will and/or trust kick in to guide decision making in your absence.)

There are two main types of financial power of attorney I offer my clients.

  • Immediate power—effective from the moment you sign it, without any medical certification; while immediate, you do not lose control of your affairs. (This is typically what I recommend.)
  • Springing power—becomes effective only upon medical certification that you are unable to carry on your legal and financial affairs.

What happens if I don’t have a financial POA?

If you don’t have a financial POA, and you were to become incapacitated, any financial decisions would need to be made by a court-appointed conservator. Under a court’s direction, the conservator would handle your financial matters. It’s a quite expensive and time consuming process, especially compared with the relative simplicity of executing a financial POA. Also, needless to say, most people would elect to trust their important financial decisions to a person they love and trust, over someone the court appoints.

After I die, can my agent continue to operate under my financial POA?

A common misperception is that your agent will be able to use this power after your death. Instead, at your death, any of the agent’s powers will be automatically revoked. The representative appointed through the probate process will carry out your estate plan.

Who should I choose to serve as my “attorney-in-fact?”

two people talking on the beach

The agent (or attorney-in-fact) you choose will be managing your finances, so it is critically important to choose someone trustworthy; someone who will not abuse or exploit this power; someone who will listen to your wishes, goals, and objectives, as included in the document or otherwise communicated; and someone who will look out for your best interests.

You also have the option of designating a successor agent who can take over if the original agent is unable or unwilling to serve. This is highly recommended.

Who should receive a copy of my financial POA?

The person named as agent and any person named as a successor agent should receive a copy. It may also be wise to share a copy with your financial institution(s), such as your bank/credit union, as well as with your financial advisor and/or accountant.

Can I revoke my financial POA?

Yes, you may revoke the financial POA at any time. You can also amend the financial POA (change it, revise it, etc.) at any time.

Are there other estate planning documents I need?

Yes, definitely! There are six “must have” estate planning documents. The financial power of attorney is one of these documents that create a comprehensive estate plan.

Who needs a financial power of attorney?

I’m a staunch believer that every adult Iowan needs an estate plan—including young professionals, newlyweds, the non-wealthy, and especially people with minor children—and, therefore a financial power of attorney. A financial power of attorney can even be incredibly important (but often overlooked) for college students.

Do you have a financial POA? How about a full estate plan in place? Why or why not? I’d love to hear from you. Email me at gordon@gordonfischerlawfirm.com or call (515-371-6077).

/by

6 Simple Tips for Beneficiary Designations

woman doing photo at sky

You’ve almost certainly had to designate your beneficiaries on savings and checking accounts, life insurance plan, annuity, 401(k), pension, or IRA. All of these accounts are passed along at the time of death via beneficiary designation (sometimes referred to as payable on death (PODs) or transfer on death (TODs) accounts). It’s easy to forget, but beneficiary designations take precedence over whatever is written in your will. So, even if you have the six basic “must have” estate planning documents in place, you still need to address who is named as your beneficiaries.

I have a few simple tips for reviewing and protecting your important accounts:

  1. Be sure to name a primary beneficiary (or beneficiaries), using the appropriate beneficiary designation forms.
  2. Be sure to also name an alternate beneficiary in case the first beneficiary dies before you.
  3. Don’t name your estate as the beneficiary (not without lots of expert advice).
  4. Review the beneficiary forms once a year to make sure they still reflect your wishes.
  5. Update the beneficiary forms more often if there has been a change in your life circumstances, such as a birth, adoption, marriage, divorce, or death. For example, if you’ve gotten a divorce you may not want your ex-spouse to be the beneficiary of your life insurance.
  6. Each time you change the beneficiary designation form, send it to the organization that holds the account, and request they acknowledge receipt.

 

couple holding hands in green space

Checking your beneficiary designations is a smart estate planning step you can take today. But, of course, you’re going to need a solid estate plan to account for all of your assets that are not transferred via beneficiary designation. A great way to get your key estate plan documents started is by downloading my free, no-obligation Estate Plan Questionnaire. You can also contact me by phone (515-371-6077) or email with any questions or concerns.

/by

Happy New Year from GFLF: Looking Ahead with Resolutions

, , ,
happy new year fireworks

Happy New Year! It’s 2018 and if you’re like me, “Auld Lang Syne” was playing merrily in the background as a cup of cheer was raised and confetti fluttered on New Year’s Eve. The title and main chorus of song ubiquitous with the holiday roughly translates to “for old times’ sake.” On that note I’ve spent some quality time (like the song eludes to) reminiscing about the year that’s gone by. I’ve reviewed what Gordon Fischer Law Firm tackled in 2017, but more importantly I’m looking ahead to where we want to go, how to get there, and how to improve along the way. I have a few “resolutions” I want to share…resolutions we actually intend to keep! These goals will work to further advance the mission of the firm “to promote and maximize charitable giving in Iowa.”

6 Estate Planning Resolutions You Can Actually Keep

At Gordon Fischer Law Firm we fully intend to:

  • Post even more regular content on the GoFisch blog to make it ever easier for both donors and donees to effectuate charitable giving to/for their favorite causes.
  • Continue growing the monthly GoFisch newsletter (have you subscribed?).
  • Additionally, I would like to produce a regular specific newsletter for professional advisors (accountants, financial advisors, insurance agents, and fellow lawyers) with smart planning information to be able to further help Iowans.
  • Present an all-day seminar (for continued education credits) targeted to both nonprofit leaders and professional advisors to discuss all aspects of charitable giving and facilitate beneficial networking.
  • Continue demystifying estate planning for all Iowans—complete with basic forms to help that process along.

Tomorrow I’ll highlight aspects of estate planning and charitable giving you can (and should) incorporate into your goals for 2018. Do you already have such goals in mind? A few examples could be to stop making excuses to avoid estate planning, finally establish that living trust, or consult with a professional about a retained life estate. Don’t hesitate to contact me to discuss. Together we’ll likely be able to set a plan in place for you to achieve your goals (or resolutions) to truly make 2018 your best year yet.

/by

Mandatory Basics of Iowa Court Rule 39.18

, ,
Iowa Court Rule 39.18

I regularly help and encourage my clients to complete business succession planning. So, I was immensely interested in fully understanding and helping to explain the Iowa Court Rule 39.18 which mandates some aspects of practice succession planning for active Iowa lawyers. I wrote extensively on the subject in a four-part series for The Iowa Lawyer (you can find links to all the articles here). But, with the deadline for compliance fast approaching, it is useful to have just the basic. The ISBA recently published my rundown of nothing but the essentials in The Iowa Lawyer Weekly, and for convenience I’m publishing it here as well.

This short article directly informs every Iowa private practitioner precisely what s/he needs to know about new Iowa Court Rule 39.18. Under the Iowa Court Rule 39.18, Iowa-licensed lawyers must take steps to prepare for their own disability or death. New questions that are related to Rule 39.18 compliance will be included on the Iowa Client Security Commission 2018 Client Security Reports to be filed via the Iowa Office of Professional Regulation between Dec. 26, 2018 and March 10, 2018 without penalty.

Two Tiers

Iowa Court Rule 39.18 is divided into two tiers; the first tier is mandatory; the second tier is optional. The second, optional tier is very helpful, and I’d urge every Iowa layer to seriously look at implementing it. Considering that I write this in mid-December, however, it may be wise for Iowa lawyers to make certain they are in full compliance with the mandatory provisions, and give the optional provisions more full and careful consideration in 2018. Since this article is about just the basics, I’m just going to discuss only the mandatory provisions of Iowa Court Rule 39.18.

 

Choose Designee and Custodian

Every Iowa attorney in private practice must choose and identify both a designated representative and a custodian. The term designee representative(s) is defined, while the term custodian is not. The designated representative (hereinafter “designee”) must be either an:

  1. active Iowa attorney in good standing;
  2. Iowa law firm that includes Iowa attorneys in good standing (including the attorney’s own firm); or
  3. qualified attorney-servicing association.

A “qualified attorney-servicing association” is a bar association, all or part of whose members are admitted to practice law in the state of Iowa; a company authorized to sell attorneys professional liability insurance in Iowa; or an Iowa bank with trust powers issued by the Iowa Division of Banking.

(Important note: Earlier this month The Iowa State Bar Association Board of Governors authorized The ISBA to serve as a qualified attorney servicing association.) Again, the term “custodian” in not defined. The custodian can be anyone – a fellow lawyer, friend, spouse, administrative assistant, whomever.

Clients Lists and Client Files

Additionally, every Iowa attorney in private practice is responsible for the following: (1) maintaining a current list of active clients in a location accessible by the designee; (2) identifying the custodian to the designee; and (3) identifying the locations of the client list, electronic and paper files, records, passwords, and any other security protocols required to access the electronic files and records for the custodian and, ultimately, for the designee.

 

Businessman taking notes and planning in a meeting

Death or Disability

Iowa Court Rule 39.18 kicks into action only in two extreme circumstances: your death or your disability (a disability so severe you can no longer practice law, whether temporarily or permanently). Upon your death or disability, your designee is given broad authority, including the right to review client files (whether paper or electronic or both), notify each client of your death or disability, serve as a successor signatory for any client trust accounts, prepare final trust accountings for clients, make trust account disbursements, properly dispose of inactive files, and arrange for storage of files and trust account records. Also, the designee is authorized to access passwords and other security protocols required to access electronic files and records. Finally, as a “catch all” provision, the designee may determine whether there is need for other immediate action to protect the interests of clients.

Read More About Iowa Court Rule 39.18

If you would like to read deeper beyond these basics, click to the September through December 2017 issues of The Iowa Lawyer from the online archives to read our four-part series. In the series, all the elements (mandatory and supplementary) of Iowa Court Rule 39.18 are reviewed and explained in detail.

There is also a list of additional resources that can be found here. If you’re an active lawyer in Iowa help your fellow counselors out and share this piece with them so they will be prepared not only for the Iowa Client Security Commission 2018 Client Security Reports, but in the off chance of unexpected death or a disability. If you have any questions as you set your plans in place contact me by email or phone (515-371-6077).

/by

25 Days of Giving: How Iowa Court Rule 39.18 Could Change Giving by Iowa Attorneys

, ,

The December/January issue of The Iowa Lawyer magazine is out! Click here and scroll to page 13 to read the final piece in my four-part series on the practical application of Iowa’s new succession planning rule for lawyers and law firms. “Giving for good: Practical application of Iowa Court Rule 39.18” covers how the rule may well significantly increase charitable giving by Iowa attorneys through both business succession planning and personal estate planning.

Iowa Court Rule December Article

While the series is targeted toward Iowa lawyers, the advice throughout can be applicable to individuals in need of personal estate planning as well as business owners in need of business succession plan. Click on the following links to read the past articles related to the Rule.

  1. September issue: overview of Iowa’s new succession planning rule and the importance of personal estate planning as well
  2. October issue: 8 simple steps for a successful business succession
  3. November issue: benefits of a supplemental plan

This month’s Iowa State Bar Association publication also includes features on: issues and roles of startups and in-house counsel; Larry Johnson Jr., the new State Public Defender; cover story on intellectual property lawyer, Brandon Clark; periodic cost-of living adjustments for indigent defense compensation; data on the realities of attracting young attorneys to the state’s small towns; and the Kids First Law Center, among other great pieces.

If you would like to discuss any questions or concerns related to personal estate planning or a succession plan for your business (including law firms), don’t hesitate to contact me.

/by

Court Appointed Guardianship: What it is & How to Protect Yourself

, ,
senior citizen guardianship

Recently a friend sent me an article from The New Yorker, “How the Elderly Lose Their Rights.” (While a long read, it’s worthwhile.) The piece focused on the tragic case of a Nevada couple—Rudy and Rennie North—who fell victim to a court appointed guardian who failed (terribly) to put the senior victims’ best interests first and asserted the little known situation where “Guardians can sell the assets and control the lives of senior citizens without their consent—and reap a profit from it.” At first this situation is a bit confusing. How can a couple, with grown adult children, be assigned as wards of a state-appointed conservator/guardian who is then in charge of making health, financial, and social decisions for the individuals?

Given the current and growing population of elderly in the U.S. the issue of court-appointed guardianship it’s an important subject. According to the Census Bureau, “residents age 65 and over grew from 35.0 million in 2000, to 49.2 million in 2016, accounting for 12.4 percent and 15.2 percent of the total population, respectively.” And, between 2000 to 2016, 95.2 percent of all U.S. counties experienced increases in median age.

senior couple at table

What is a Guardian / Conservator?

To be able to protect yourself against such a situation, let’s establish what a guardian and/or conservator actually does and what are the causes for a conservator to be appointed. One person may be both the guardian and conservator and can be combined into a single court action. (Note: these definitions are applicable in the State of Iowa. In some states the words have different definitions and a “guardianship” in Iowa may be considered a “conservatorship” under the verbiage of a different state.)

Iowa Legal Aid offers a clear definition of the two terms:

“In a conservatorship:

  • The court appoints a person (the conservator) to control the property (or estate) of a ward.
  • A conservatorship deals with the person’s financial decisions.

In a guardianship:

  • The court appoints a person (the guardian) to control the person of the ward.
  • A guardianship deals with non-financial decisions such as where the ward lives and what type of medical care the ward gets.”

For simplicity’s sake, for the rest of the article we’ll just say guardian/guardianship, but know that could also include a conservator/conservatorship.

How does a Guardian get Appointed?

A guardian may be appointed if a court finds an individual incapacitated, which can be due to varied conditions like mental disorder, physical or mental disability, chronic abuse of drugs and/or alcohol, or physical illness. Basically if the court is convinced that a person lacks sufficient ability or understanding to communicate or make decisions in their best interest they could appoint a guardian for the continued supervision and care of the individual.

The process is such that a petition is filed in the prospective ward’s state with information regarding the proposed guardian, the guardian and ward’s relationship (if any), and other info on heirs. Any person deemed “competent” can be appointed as a guardian, so that could include an adult child/parent, spouse, or friend. It could also be a professional guardian entirely unrelated to the ward.

two senior citizen women

The legal standing for guardianship immigrated over to the U.S. colonies from England and is based on an English statute that’s survived for over 800 years. The state holds the power of parens patriae, “a duty to act as a parent for those considered too vulnerable to care for themselves.” Because this power is of the states and not federally regulated, there are disparate record keeping standards, sealed court records, and no databases of collective figures at the local, state, nor federal levels.

Potential Dangers of Guardianship

Guardianship in the U.S. straddles a fine line between protection and exploitation.

One of the major tenants of the concept of guardianship is “trust.” And, it’s true that there are great guardians who certainly work in the best interests of their charges. Most people assume the role of a guardian for good reason (like caring for a parent), but there are also substantiated cases where victims (largely senior citizens) were subjected to physical abuse, financial theft, and neglect. In a 2010 report, “Guardianships: Cases of Financial Exploitation, Neglect, and Abuse of Seniors,” the Government Accountability Office identified over 150 reported victims who had suffered a total of $5.4 million in stolen funds.

Guardianship has large potential for issues and consequences given the large quantities of people involved. Currently there over 1.5 million adults who live under the care of a guardian who is either a family member or unrelated professional. These guardians control an immense amount of assets to the tune of $273 billion. It’s also true that in the majority of states there are no qualifications to attain the status of guardian other than taking a course, having not declared bankruptcy recent, and not be convicted felon.

two seniors speaking on sidewalk

The American Bar Association published the statement that “an unknown number of adults languish under guardianship” even if they no longer have the need for someone to make decisions for them (or never did).

Another danger is that while guardianship could be terminated through a court hearing if it can be proved the need no longer exists, the ABA study also asserted the guardianship situation is typically permanent, leaving few ways out for the adults under care. Those who do try to fight against a court-appointed guardian often end up paying excessive amounts of money in attorney and court fees—some even going bankrupt in the process.

Additionally, the aging population of America places increased pressure on court resources which, in turn, can make it difficult for court appointmented guardians to have the optimal high level of oversight necessary. Thus, shady guardians can more easily slip through the cracks and continue to abuse the system and their wards’ assets.

How to Protect Against the Potential

It’s pretty safe to say that no one in their right mind would want a court-appointed guardian (particularly a stranger) to have control over your life. Especially in a way that they could legally:

  • Change your permanent residence to a more restrictive location.
  • Consent to withdraw life-sustain medical procedures.
  • Place restrictions on communications, visit, or interactions with another person.
  • Make decisions contrary to your wishes regarding general life in areas like recreational activities, clothing, and food choices.

As an example of the prospective consequences of these powers is how a guardian placing restrictions on whom their ward can interact with can result in isolating the ward from their family members. According to Elaine Renoire, a director of the National Association to Stop Guardian Abuse, a victims’ rights group, the top complaint she hears about guardians is how they can legally prohibit their wards from seeing or speaking to their loved ones.

senior citizen on bench

The following legal and estate planning tools are proactive measures you can take today to avoid the potential of being subject to court appointed guardianship.

Health Care Power of Attorney

Health care power of attorney is one of the six main documents all Iowans should have as a part of their estate plan. It allows you to choose a designated representative to make medical decisions on your behalf if you are to become incapacitated either temporarily (such as under anesthesia) or permanently. If you cannot express your medical treatment wishes clearly and coherently, your agent could then make such wishes be known on your behalf. The designated agent also retains the right to receive your medical record information that would otherwise be inaccessible as it is protected under HIPAA laws.

Financial Power of Attorney

Similar to the health care power of attorney, financial power of attorney is a legal document that designates someone to handle your financial decisions and take actions like pay bills, settle debts, and sell property on your behalf if you become incapacitated and unable to do this yourself.

Trust

The number of different types of trusts are practically limitless and a trust could be a valuable estate planning protection tool in some situations. A successor trustee could be named and the document could be used as a safeguard for financial protection.

woman walking down street with flowers

Proactivity is Key

By being proactive, you can be certain that someone you love and trust will be responsible with their guardianship powers and big/small life decisions, not the courts. Have these documents crafted by an experienced estate planner (not a DIY website) and keep them up-to-date as circumstances change. Luckily there are smart people in Iowa working toward policy change, such as the National Health Law and Policy (NHLP) Resource Center at the University of Iowa College of Law and their recent task force report citing 232 policy recommendations. But, the road toward substantial policy change is long and it’s best to have your own legal safeguards in place just in case.

Want to discuss guardianship further or get started on your powers of attorney documents? Contact me at any time.

/by