When Does Someone Need Financial Conservatorship?

When individuals cannot manage their finances, courts can appoint guardians. Financial Conservatorship is for those who need help handling money.

Depending on the jurisdiction, financial Conservatorship may also be called Conservatorship of the estate or conservatorship.

In cases where individuals need help with personal and financial decisions, the court can order Conservatorship of the person and estate. The guardian makes both personal and financial decisions for the protected person.

What Financial Conservatorship Entails

Financial Conservatorship gives the guardian the authority to oversee the protected person’s finances and access money to pay bills. In many cases, the terms of the arrangement require the guardian to seek court approval before making financial actions on behalf of the ward, such as spending money and selling assets.

The ward’s money goes into a blocked account. The guardian can only access such an account with a court order, according to the Family Law Self Help Center.

When Do Courts Order Financial Conservatorship of an Adult?

Courts appoint financial guardians when people demonstrate that they cannot handle their finances on their own.

• Individuals who frequently forget to pay bills might need help with finances. For instance, a person might need help remembering to pay bills and handling money.

• Those who are vulnerable to financial exploitation might also need guardians. For example, suppose a person makes significant payments to an online scammer. In that case, a loved one might petition the court to become the person’s guardian to protect them.

• Individuals with diseases and disabilities that prevent them from understanding money may also need the help of a trusted person. For instance, dementia can cause people to have executive functioning difficulties that impact their ability to handle money.

When a person has significant assets but needs help managing them, courts will order financial Conservatorship. Individuals with limited income and assets might not need financial guardians.

Alternatives to Financial Conservatorship

While providing protection and support, Conservatorship limits autonomy. Many states require courts to explore less restrictive alternatives to Conservatorship before appointing a guardian. Those facing challenges with financial decisions should, along with their loved ones, first consider other options.

Financial Power of Attorney

Conservatorship is appropriate when a person is impaired and cannot make their own decisions. Suppose an individual still can make decisions and understand the consequences of their choices. In that case, the person can execute a power of attorney for property. This gives a trusted individual the ability to handle their assets.

Compared to financial Conservatorship, an economic power of attorney can protect individuals’ rights while allowing someone to step in and help with monetary decisions. Under financial Conservatorship, it is more difficult for the protected person to change the arrangement if disagreements with the guardian arise. The person subject to the arrangement must petition the court to terminate it.

Revoking a power of attorney is, by comparison, straightforward. As long as the individual who made a power of attorney retains capacity, they can withdraw their power of attorney at any time for any reason. They can also appoint a new agent without judicial oversight.

Supported Decision Making

Another option for those with money difficulties is supported decision-making. Under a supportive decision-making arrangement, a person can have a trusted individual or multiple people help with financial decisions.

Supportive decision-making is less restrictive than Conservatorship, as individuals get help with decisions while retaining autonomy. Unlike a ward in a Conservatorship, the individual keeps the final decision-making power.

If you are wondering whether a loved one needs help with their finances, consider speaking with your elder law attorney about this.

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

6 Facets of Estate Planning That LGBTQ+ Couples Should Know

Estate planning is an important consideration for all couples. However, for LGBTQ+ couples (or former couples), it may be more important than they realize to review their circumstances and see whether they have an estate plan that accurately reflects their wishes.

In 2015, the U.S. Supreme Court ruled that same-sex couples may exercise the fundamental right to marry in all states and have their marriage recognized by other states. This case also invalidated state laws that excluded same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Before this ruling, LGBTQ+ couples could provide for their partner through wills or insurance policies, but often not to the extent they would have been able to if their partner was a legal spouse. This is because many state and federal laws give preference to biological relatives and descendants over an unmarried partner or significant other.

After this ruling, many estate planning options that were not previously available to LGBTQ+ couples have become a possibility well worth exploring.

Tax Benefits: Marital Exemption and Portability

One of the benefits of being legally married is that under U.S. Federal Estate and Gift Tax laws, a person may transfer an unrestricted amount of assets to their spouse at any time, including at their death, tax-free (assuming they are a U.S. citizen).

This estate preservation tool was unavailable to LGBTQ+ couples until same-sex marriage became legal. As a result, each partner had to use up their own lifetime federal gift and estate tax exemptions before they could transfer assets to their significant other.

These exemptions still apply if a couple is not married and may be a good reason to formalize a partnership through marriage. In 2023, if an unmarried couple wishes to gift one another assets, they would be limited to:

• An annual gifting limit of $17,000 per recipient; and
• The lifetime federal gift tax exclusion for U.S. citizens of $12.92 million per recipient.

However, upon the marriage of two individuals, any assets left to a U.S. citizen spouse is entitled to the unlimited marital deduction.

Another tax benefit of being legally married is that the surviving U.S. citizen LGBTQ+ spouse may also elect portability of their deceased spouse’s unused federal estate and gift exclusion amount for their benefit. This can be a critical tax-saving device where the surviving spouse has an estate value that exceeds the federal exclusion amount.

Social Security Benefits

LGBTQ+ couples may also wish to consider getting married to reap potential Social Security benefits. The Social Security Administration (SSA) now recognizes all marriages in all states, as well as some civil unions and domestic partnerships. As a result, the SSA will use this to determine whether a person is entitled to Social Security benefits, Medicare, survivor benefits, and more.

A person or their spouse may be entitled to benefits or a higher benefit amount based on their marital relationship. In addition, their children or stepchildren could also be entitled to benefits based on their relationship with you or your spouse.

Married LGBTQ+ partners may also now qualify for Social Security survivor benefits. For example, if you were married to a person who passed away, your marriage may qualify you for Social Security survivor benefits based on your partner’s work record. This is also true even if you could have been married at the time of your partner’s death if state laws hadn’t prevented you from doing so, or you would have been married longer if not for unconstitutional state laws that prevented you from marrying earlier.

Rolling Over Retirement Assets

Before the 2015 Supreme Court ruling, LGBTQ+ couples could not roll over assets from their retirement accounts to a surviving partner’s account. However, now all married couples have this ability.

A spouse beneficiary may roll over or transfer an inherited IRA from their deceased spouse into their own IRA for their benefit and use. However, nonspouse beneficiaries do not have this option. This may be another estate planning benefit that makes marriage a good choice.

Gift Splitting

Married LGBTQ+ spouses, like heterosexual couples, can take advantage of “gift splitting” to reduce the size of their taxable estate. What this means is that one spouse, with the consent of their spouse, can gift the annual gifting tax exemption amount ($17,000 x 2 in 2023) from their assets to a recipient and treat it as if each spouse contributed half the amount.

Allowing the combination of individual allowances permits many couples to use the gift tax exclusion in a way that works best for them. However, before you do so, it is best to consult with a tax professional to ensure gift splitting makes sense for you.

Children of LGBTQ+ Relationships

Many LGBTQ+ couples will be concerned about providing for their children upon their passing or cementing their parental rights over those of biological relatives especially where only one parent is a biological parent. In these instances, if the nonbiological parent formally adopts the children, then all of the traditional estate planning options open up and are available to them when planning to provide for children after death. In addition, concerns about who would be a child’s legal guardian should be resolved before legal issues arise.

If a couple is not married and considering marriage, there may be tax advantages to planning the adoption before the marriage. This tax benefit is referred to as the adoption tax credit. An LGBTQ+ couple considering this should consult with a tax professional before making any decisions.

Untangling Prior Relationships

A less frequently discussed issue that many LGBTQ+ individuals may face is the impact of their prior civil unions, domestic partnerships, or other relationships on their future estate plan. This is especially true for couples who are no longer together.

For example, a couple who moved to a state that first recognized same-sex domestic partnerships or unions but is no longer together may not realize that their prior partner could have a claim against their future estate. Some states that allowed the earliest unions ultimately upgraded these nonmarital unions to marriages after laws changed.

As a result, people who are no longer together may be legally married and not realize this. These unions would need to be undone in order to engage in proper estate planning that carries out your wishes.

You may have realized from reading this article that estate planning can be more complex for LGBTQ+ persons. Obtaining the counsel and advice of your attorney can make a world of difference. 

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Do You Need a HIPAA Release?

If you are in the hospital, you may want your loved ones to be able to access information about your prognosis. However, if you have not authorized them to receive specifics regarding your medical condition, they could be denied these details.           

What Is HIPAA?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that protects patients’ privacy. The law limits how health plans, including Medicare and Medicaid, health care providers, and other entities share protected health information (PHI). Your PHI may include personal details such as your Social Security number, billing records, address, lab test results, or prescriptions.

HIPAA authorizes the release of medical information to the patient and the person(s) designated as their personal representative. It also has some flexibility that allows medical providers to disclose information to a person who is involved in a patient’s care. (The HIPAA rules allow disclosure only of information that is relevant to the caregiver’s involvement in the patient’s care.)

While this caregiver policy usually works well, “usually” is the operative word. This is why it can be important to sign what is known as a HIPAA release form. It gives specific written authorization to all people who may be involved in a patient’s care. This can be particularly key if, for example, there is more than one caregiver for the patient.

Under HIPAA, covered health care entities can only share PHI for treatment, payment, and health care operations. In other cases, an entity such as a hospital must obtain the patient’s consent to share information with others.

HIPAA Release Form

A hospital may obtain consent to release your PHI through a HIPAA release form. Signing a HIPAA authorization form allows the hospital to disclose protected health information that HIPAA would otherwise shield. The form typically states who can have access to the information.

Note that if a physician suspects abuse, neglect, or domestic violence by your personal representative, they have the right to refuse to disclose to them your PHI, in order to support your best interests.

Reasons to Sign a HIPAA Release

While signing a release abridges your privacy, it can help ensure that designated individuals in your life can receive information about your health.

A release lets your provider give your health information to a specified third party, such as:

• A family member assisting with health care decision-making and care
• An attorney helping you with a personal injury or workers’ compensation claim

The minimum necessary standard applies even after the release. Under this standard, health care providers can only share the information required to accomplish a specific goal.

What Does the HIPAA Authorization Form Include?

The law requires HIPAA consent forms to specify the following:

• The information that will be disclosed
• Those who may make the disclosure
• The individuals who may access the information
• The reason for the disclosure
• An end of the disclosure period (This can be either an expiration date or an expiration “event.” For instance, this event could be the patient’s discharge from the hospital.)
• The signature of the patient or their representative

Individuals generally have the right to revoke authorization.

Disclosure to Personal Representatives and Family Members

According to the U.S. Department of Health and Human Services (DHHS), your personal representative may inspect and receive a copy of your protected health information from a HIPAA-covered health care provider or health plan.

Your personal representative is someone you legally authorize to act on your behalf in making health care decisions. Parents are typically personal representatives of minor children. If you have named an agent under a health care power of attorney in your estate plan, that individual may be your personal representative.

A Note on Terminology and Federal vs. State Law

The terms used for these types of documents and individuals can vary depending on where you live. Health care agents may be more commonly referred to as health care proxies in some states. Likewise, a health care power of attorney may be called an advance directive or a medical power of attorney.

To make matters more complicated, HIPAA rules, which are governed by federal law, may in some instances conflict with state laws. As the DHHS explains, whether a person “has a right to access the individual’s PHI … generally depends on whether that person has the authority under state law to act on behalf of the individual.” With certain exceptions, HIPAA regulations typically take precedence unless state law is more stringent.

Under HIPAA, a valid health care power of attorney should be sufficient to authorize a loved one to access your health information. You may also use a HIPAA release to share information with a loved one.

HIPAA and a Health Care Power of Attorney in Your Estate Plan

A power of attorney for health care is a legal document. When you execute a health care power of attorney as part of your estate plan, you appoint a trusted individual as your health care agent. You can also name a successor.

When you create a health care power of attorney, you can determine your agent’s level of authority and information access.

Compared to relying on HIPAA authorization forms alone, having a valid health care power of attorney in place can be beneficial for several reasons:

• While HIPAA authorization forms limit information sharing only to what is necessary, you can give your loved one broader access to information with a health care power of attorney, or provide specific limitations.
• Having a health care power of attorney prepares you for future unforeseen health events. You might be unable to communicate or make decisions if you become severely ill. When you have appointed a health care agent, this person can step in, make decisions, and receive information about your health.
• You can detail your wishes for medical decisions in a health care power of attorney.

When drafting a health care power of attorney, consider including HIPAA authorization. The document should include a provision about access to medical information. It will outline to whom in your life a health care entity is permitted to disclose your PHI.

You could give your agent broad access. Or, you could restrict their access to specific protected health information. You can also put limits on when the agent can have access to your information.

Consult With Your Attorney

If you are considering signing a HIPAA release to share health information with a loved one, consider also having a health care power of attorney. Your attorney can help you create a power of attorney that gives your loved one access to HIPAA-protected information and protects your interests.

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

3 Common Probate Questions: Estate Planning Basics

When people pass away, they leave behind assets, property, and possessions that can have sentimental and real value for surviving family members and loved ones. Everything that an individual owns upon their death is known as their estate.

According to Estate Exec, the average size of an estate is between $50,000 and $250,000. Eleven percent of estates are under $11,000, while 11 percent are over $1,000,000.

Some assets transfer directly to heirs after a person’s death. These non-probate assets include pay-on-death bank accounts, insurance policies with designated beneficiaries, trust funds, and jointly held assets with survivorship rights. Other assets must go through a process known as probate.

What Is Probate?

Probate is a legal process in which the court oversees the administration of the estate. The process involves validating the person’s will, satisfying their debts, and distributing their assets to beneficiaries. If there is no will, heirs under state intestacy laws receive the estate.

Assets subject to probate include property, bank accounts, investments, and personal belongings.

Typically, the estate representative initiates the process. If there is a will, the will should name an executor responsible for distributing the assets.

Yet many people die without a will. Per a study by Caring.com, only a third of Americans have an estate plan.

When an individual passes away without a will, an interested party may initiate probate. Spouses, adult children, other relatives, and creditors may petition the court to open the estate.

Should the estate representative fail to open probate on time, an interested party may petition the court.

For those who have not encountered estate administration in the past, the process can be an unfamiliar concept. Here are answers to three commonly asked questions about the probate process:

1. How Long Do You Have to File Probate After Death?

How long the estate representative or interested party has to open probate depends on the jurisdiction. Each state has its specific laws and regulations about the timeframe for initiating the process.

Some jurisdictions do not set a strict deadline. For instance, New York has no time limit or statute of limitations on probating a will.

Other jurisdictions have statutory time limits in place. California, for instance, allows individuals to open probate up to one year following a death.

Since probate can take months to years, it is best to initiate the process as soon as possible after the person’s death.

2. How Long Do You Have to Transfer Property After Death?

After a property owner’s death, the ownership of the property must transfer to another party.

In certain circumstances, a person’s house may not have to go through probate. If the property is owned as joint tenants or tenants by the entirety, the surviving owner retains ownership. Transfer on death deeds or transfer on death instruments and living trusts also allow individuals to pass property directly to beneficiaries outside of probate.

Property owned individually or as tenants in common becomes subject to probate. When the property is subject to probate, how long you have to transfer it depends on the rules and regulations of your jurisdiction. Once the property becomes part of the probate estate, the court determines who receives the property based on a valid will or state intestacy laws. The court may require the sale of the property to satisfy debts or distribute money to beneficiaries.

The new property owner must obtain a new deed for the home from the county recorder’s office. When the property transfers outside of probate, it can be faster than when the property goes through probate. Receiving a new deed from the county recorder’s office can take between two weeks and 90 days. Depending on the complexity of the estate, the probate process can take several months to two years.

3. What Is a Petition for Discharge in the Probate Process?

A petition for discharge is an essential step in the probate process that allows beneficiaries and heirs to obtain assets from the person who has passed away. The personal representative files the petition to request the court’s approval to distribute the assets and close the estate.

The petition specifies how the beneficiaries will receive the assets. It also discloses how much money the personal representative receives for services rendered and the attorney’s payment.

After the court approves the request, the executor can distribute the assets to the beneficiaries.

Consult With an Attorney

Handling the administration of an estate after a loved one’s passing can be challenging. Consult with your attorney for assistance.

Contact us

Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq. 

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com