"When we do estate planning, we talk about the whole family."
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In the previous issue of Maumelle Magazine, I discussed my views on adoption and the choices available to those who may be considering adoption as a way to grow their family. In this article, I’d like to discuss what’s known as a guardianship. For purposes of this article, I will only be discussing guardianships over minor children. And more specifically, emergency temporary guardianships over minor children.
So what is a guardianship? A guardianship is a written document, signed by a judge, that allows a person (guardian) to be in control over the care and custody of a minor (ward). While similar to adoption in some ways (i.e., custody and control), the main purpose of a guardianship is to protect the ward, and does not involve the termination of parental rights.
As an attorney who practices in the areas of family and probate law, I receive many panicked phone calls from grandparents or other relatives that sound something like this: I just found out that my son/daughter (for ease of reading, we’ll say daughter in this article) is doing drugs again, this time with her kids in the home! I have my grandchildren with me now but I’m afraid she’s going to come and take them from me because she has done it once before! What can I do to stop her?
Unfortunately, this situation is common. And it’s one our courts take very seriously – so much so that our laws allow anyone who is eighteen or older, of sound mind and not a convicted or unpardoned felon to file a petition for emergency guardianship over a child. In other words, you do not have to be a relative to seek a guardianship.
In order for a court to find that an emergency guardianship is necessary, there must be an actual emergency. While I am inclined to err on the side of caution when it comes to the well being of a child, there are statutory guidelines that lawyers must look to when deciding whether to file an emergency petition for guardianship. When it comes to a child’s physical or emotional well being, Arkansas law says there must first be an imminent danger to the life or health of the child before an emergency guardianship will be ordered.
So let’s get back to the grandparent who has taken her grandchildren away from their mother. In this case, given the details of what the grandparent has told me, I would consider there to be an imminent danger to the life or health of the children for several reasons.
First, if mom is impaired in any way, or has a habit of impairment, she is a danger to her children. What is to stop her from loading the kids in a vehicle and driving while impaired? Moreover, depending on the age and curiosity of the child(ren), there is a risk of ingesting or inhaling the drugs mom is taking.
Furthermore, not only are there imminent medical health risks associated with drugs (i.e., inhalation, ingestion, etc.), there are physical risks as well. To purchase any kind of illegal drug, there must be a transaction. In this case, we have no idea where or how mom is getting her drugs. There is the real and frightening possibility that her dealers are coming to her home to make a transaction, which means she is associating with potentially dangerous people within feet of her children.
If you know of a friend or family member who has been through the emotional process of seeking a guardianship, their story may or may not match up with my example. But all guardianships, whether they involve drugs or alcohol or abuse or neglect, have the same goal: to protect the best interest of each child involved. That is the goal for most proceedings involving children and it is one that should be at the forefront of your mind.
While the scenario above is common, there are also other less severe situations in which the parent is just going through a hard time, and may need help getting back on her feet. Usually, those seeking a guardianship are concerned about the parent(s) and the children who may be in imminent danger. This situation arises most frequently when a grandparent is faced with the decision to remove a grandchild from their own child, whom they have loved and supported since birth. This is not an easy decision, and should not be made lightly. But it is important to remember that it is our job as adults to protect the physical and emotional well being of children. Their best interest must come before all others.
So let’s talk a little bit more about process. You’ve made the decision to ask a judge to remove a child you care about from his or her home due to some sort of imminent danger. What next? The following steps will detail the process of seeking an emergency guardianship:
1. Petition: A guardianship petition is a written request to the court asking that a guardian be appointed for a specific minor. The first step is to file an emergency petition with the circuit clerk’s office.
2. Emergency Order: With the petition, your attorney should include a proposed emergency temporary guardianship order for the judge to sign. If the judge agrees that an emergency order is necessary, he or she will sign the order and file it with the circuit clerk.
3. Hearing: If a judge signs an order for emergency guardianship, there must be a hearing within three working days of the entry of the order. While Arkansas law requires notice to parents, due to the emergency nature of the situation, a judge may appoint a temporary guardian with or without notice to the parents if their whereabouts are unknown or cannot be learned through a reasonable search. A judge may extend a temporary guardianship for ninety days at the first hearing and even ninety more days if the court finds after another hearing that there remains an imminent danger to the life or health of the minor if the temporary guardianship is not extended.
4. Permanent Guardianship: If, between the first and second temporary guardianship hearings, you believe that the guardianship should be made permanent, your attorney should file a petition for permanent guardianship, which he or she will be able to argue for at the second hearing. Remember, the emergency guardianship is temporary and may expire, so filing a petition for permanent guardianship will allow the judge to consider making it permanent.
I’ve given you a lot of information about guardianships and what it takes to get one; however, no one article or blog post should be your only source for information when considering a decision like filing for a guardianship. If you feel a guardianship may be necessary for a loved one in your life, schedule a time to speak with an attorney who regularly practices in this area to discuss your options.
We are often asked which is the better estate planning tool - a will or trust. While our answer to that question may depend on your circumstances, here are just a few reasons why we recommend living trusts to our estate planning clients:
1. Avoid Probate:
Putting your assets in a revocable living trust relieves your grieving family of the burden that is the probate process. In addition to being time-consuming, probate can be expensive with costs of administration, advertising, appraisals and attorney fees. You can save your family from much stress during a difficult time by creating a living trust.
2. Easy Modification:
Changing a will requires the creation of a codicil, which is just a fancy word for amendment. The execution of a codicil, however, requires rigid obedience to the same formalities that were required when executing the will itself. And this must be done each time the will is amended.
Amending a trust requires fewer formalities.You amend a trust by a writing, called an amendment to the trust, which explains the changes, specifies the new additions or deletions, and is signed and dated by you.
Revocable living trusts provide privacy in ways that wills and probate cannot. At death, there is no reason for the trustee of a trust to run an ad in the newspaper to announce the death of the trust maker (unless the trustee is trying to cut off creditor or tort claims). In addition, the trust document is not entered into any public domain and therefore, the beneficiaries' disposition is never made public.
4. Avoid Estate Challenges:
Revocable living trusts usually eliminate challenges to the estate. Wills can be challenged for a number of reasons, such as undue influence or duress, as well as a claim that the person making the will did not follow the statutory requirements. Though trusts can be challenged, the chances of breaking a trust are low. To further discourage a trust challenge, the trust document can actually include language that specifically disinherits a potential heir who raises a challenge.
5. Avoid Conservatorship:
Management of the assets is continuous throughout the trust maker's life and can continue through multiple generations. The trust maker can serve as the initial trustee, managing all of the trust's assets during his or her life while able. When the initial trustee can no longer manage the assets, there is no need for the appointment of a conservator (someone who manages another's financial affairs) by the courts. The revocable living trust management will move smoothly to the successor trustee without a break in asset management.
6. Protect Children:
The trust maker can design his or her trust to protect minor children. Assets can be managed to provide income for health, maintenance, education and supporting. A trust can be written to protect the assets until the minor child reaches some level of financial maturity.
7. Quick Distribution:
The most common advantage of a revocable living trust (at least for the beneficiaries) is that a trust can hasten the distribution of assets to the beneficiaries. While the probate process is filled with statutory delays, the revocable living trust trustee can distribute assets as quickly as the trustee can gather together the assets and pass them out to the beneficiaries.
8. Protect Against Creditors:
Trusts can be drafted to protect future generations from creditor claims, lawsuit and even claims arising from divorce. An attorney can include a spendthrift clause in a revocable living trust, which provides that the funds are for the beneficiaries and will not be available to pay claims made against the beneficiary. The spendthrift clause will, if properly drafted, even protect against the trust assets if the beneficiary files bankruptcy.
These are just a few of the many advantages to revocable living trusts. For more information on trusts and other estate planning needs, contact our office to schedule a free consultation.
By: Chris Rippy
I often receive strange looks when I first use the phrase “Gun Trust” in relation to estate planning. When an individual plans for what will be done with his or her assets after death, personal property is often left out of that planning. Most estate planning centers around real property, cash, savings and investments, while valuable personal property traditionally takes a back seat. Firearms often fall into this scenario. Even a modestly sized gun collection can easily be valued in the thousands, if not tens of thousands of dollars. Knowing that firearms present unique issues with beneficiaries, we often recommend that people plan for their disposition separately in their estate plan.
Before deciding to execute a gun trust, the planner needs to know exactly what it will accomplish. Firearm enthusiasts utilize gun trusts for two principal reasons. The first is to purchase firearms that are restricted by the National Firearms Act. Firearms that fall under this Act include machine guns, suppressors, short-barreled rifles and shotguns, and destructive devices. When a restricted firearm is purchased through a gun trust, instead of purchased individually, there are no fingerprint requirements. In addition, when a restricted firearm is purchased individually, the Chief Law Enforcement Officer (“CLEO”) of the county, can arbitrarily prevent the purchaser from acquiring the firearm, as the CLEO’s signature is required by the ATF. This signature requirement is bypassed when a restricted firearm is purchased through a gun trust.
A second reason gun owners use gun trusts is the ability for multiple people to use an NFA firearm. If an NFA firearm is registered to an individual, only that individual is allowed to use that firearm. If, however, the firearm is owned by a gun trust, multiple trustees may be set up, and all trustees have the same rights and responsibilities to use the firearm.
Gun trusts also assist individuals with their estate planning needs. A properly drafted gun trust will prevent a person’s successor trustee and beneficiaries from potentially breaking the law. A gun trust gives the successor trustee specific instructions on who may or may not own certain firearms. If a beneficiary lives in a state that has strict gun laws, has been convicted of a felony or a domestic battery charge, has been adjudicated mentally incompetent, or simply is too immature to own a firearm, the successor trustee has the right (and responsibility) to avoid giving the beneficiary the firearm, and continue to hold ownership in the name of the trust.
Gun owners who have significant firearm assets also potentially have Medicaid issues to worry about. Firearms are considered valuable personal property, and are included as assets for Medicaid purposes. Gun owners with $50,000 or more in firearms need to consider creating an Irrevocable Firearm Asset Protection Trust in order to start the clock on the five year Medicaid look-back period.
All Gun owners know that special issues come with owning guns. This does not change with planning for their disposition after death. A properly completed estate plan should include some planning related to firearms. Only an attorney who is an elder law/estate planning attorney is going to know how to create such a plan.
For more information on gun trusts, contact our firm to schedule a phone or in-person consult.
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