Guardianship: When Loved Ones Cannot Care for Themselves

When someone you love is incapable of self-care physically or financially, a guardianship is often the best approach. In this article we will discuss the pros and cons of pursing guardianship, as well as what you will need to present to a court to obtain an order for care and maintenance of your loved one for the long-term.

What is the difference between a Guardianship and a Power of Attorney?

Guardianship is stronger than a power of attorney. A power of attorney document allows you to make affirmative decisions on another’s behalf. However, it does not permit you to override the decisions that person has made. For example, a power of attorney will allow you to write checks for your aging parents, but a guardianship will allow you to keep them from writing checks to others. A guardianship is a much more sweeping power and allows you to make financial and medical decisions on their behalf even over their objection. This is why the guardianship process is rather intense. It assumes that you will be able to prove total incapacity on the part of the person to be under your guardianship.

Determining whether a power of attorney designation will take care of your situation really comes down to whether your loved one has mental capacity and is cooperative with your assistance. If the person has capacity and is cooperative, a power of attorney document will solve most of your problems. If not, then a guardianship might be your only option.

Is your loved one incapacitated?

To prevail in a guardianship, you will have to show that the individual does not have the capacity to make independent decisions. This requires a doctor’s expert report. Usually, the doctor who is chosen is either a primary care physician who has known the person for many years and can write about any mental decline or a specialist in the area in which the person’s decline occurred. This might mean a neurologist or a psychiatrist. In the case of a younger person whose limitations are the result of trauma or a condition such as autism, a specialist in that area is more appropriate. Usually, these doctors do not need to testify. When required to testify, courts often allow them to “appear” remotely or by telephone. Different judges have different preferences on this point.

Many counties require that the expert complete and sign a specific form. This report form prompts the doctor to provide a medical opinion that the person is either partially or completely incapacitated and incapable of self-care.

Who is the appropriate Guardian?

After determining that someone is incapacitated, the next concern for the court to address is who the appropriate guardian would be? The law prefers the individual named in a power of attorney form, which is another reason that good estate planning documents are so important for every person to have. If the agent under a power of attorney document is either unavailable or judicially declared to be incompetent, the court will prefer a family member. However, courts often choose corporate guardians as a result of abuse by family members, neglect, or misuse of funds, among other things.

A guardian’s background must be relatively clean. This means that the person has avoided major criminal activity and also has been cleared of any bankruptcies in the recent past. Courts can overlook these factors but often look suspiciously upon those applying to be guardians who have similar blemishes in their backgrounds. Of course, it is also important for the guardian not to have participated in any neglect or abuse of the individual involved or of others.

Opposition by Other Interested Parties

In the event that a nursing home or a family member moves for a guardianship alleging incapacity, other interested parties could object. This could include a medical facility and often includes family members who believe either that the person is not incapacitated or that a different guardian should be chosen. Of course, the individual involved has the right to counsel as well. The bar for proving incapacity is fairly high under Pennsylvania law. This means that the individual who has a lawyer appointed by the court can prove capacity by a relatively low amount of mental ability. This is partly how the court safeguards that individual’s rights. Interested parties also may approach the court prior to the hearing to state their interest in the individual’s care.

Temporary or Permanent

Once the court has determined that someone needs a guardian, it can allow for either a temporary or a permanent guardianship. In some respect, every guardianship is temporary because the court can modify it later in the interest of the individual. In practice, however, permanent guardianships are granted when there is no hope of improvement in the person’s condition. In rare circumstances, such as when someone has slipped into a coma from an accident or from medical inducement, a temporary guardianship might be necessary to obtain financial authority to pay bills and care for children or other family members. In these cases, the court will set timeframes for the reassessment of the guardianship.

Conclusion

Walking through a guardianship can be a frightening prospect for many families, and the guardianship petition is not the end of the process. Instead, being granted guardianship is really the beginning. Reports must be filed in the court, and expenses must be issued properly to maintain access to government benefits. In some cases, special needs trusts and complex estate planning tools must be considered. If you are or a family member is considering a guardianship, contact Cornerstone Law Firm today so that we can help guide you through this very important decision.

Reaching Family Settlement Agreements in Estates

When a family member passes away, many factors can combine to create conflict over how to resolve the estate. Oral promises made by the decedent while alive, or a confusing portion of a will, or an apparent change in circumstances since the will was drafted, all can give rise to disputes over how the estate should be settled. In today’s blog, we will discuss how to reach a family settlement agreement designed to resolve the estate and avoid any dispute in court over an accounting.

Negotiating with family can be difficult. Negotiating over assets which might have changed in value can make these negotiations even more complicated. However, in a family settlement agreement, the parties agree that they will sign a document confirming the way that the estate should be settled rather than going to court. In some cases, this is done without any dispute at all. The parties each review the proposed settlement and confirm that they believe it is the appropriate way to distribute the estate assets. Additionally, they waive any claims against the executor of the estate in exchange for their share and confirm the way that all bills were paid and the way that the estate was handled.

Of course, these decisions are not always so easy and can be drawn out in more complicated situations. An executor who proposes a breakdown that the beneficiaries believe does not follow the will appropriately might face an accounting action. If a dispute arises over how to finalize the estate, several things can be done to resolve the matter outside of court. First, the parties can negotiate between counsel for the beneficiaries and the executor. The probate attorney handling the estate represents the executor only and not the beneficiaries, so they will need to retain their own counsel. In a situation with multiple executors, and one in which those executors disagree, the executors may wish to seek their own counsel.

Second, the parties can seek a mediation and go before someone who is not attached to the situation at all and who can help work out the parties’ differences. A mediator should try to find a middle ground where the case can be settled. It is often said that a mediator’s best result comes when they find a resolution that does not please any party completely but that is better than the alternative of spending a lot of money and going to court. Compromise is usually involved, and it is important to remember that a mediation might not get you everything that you want as part of your final agreement. Still, mediations are convenient because they do not force anyone into a decision. They are an effort at finding an appropriate compromise after seeing the facts in light of an outside party’s perspective.

Finally, the parties can submit a dispute to a binding arbitration. The family may be able to pick a family member who is truly neutral or ask a pastor or other community leader to help them resolve the dispute. There also are companies which can be hired to send an arbiter to hear the dispute. With today’s modern technology, these arbitrations can even happen remotely without everyone having to gather in the same place.

There are many other potential ways to reach family settlement agreements, but these are some of the most common. If you are in a probate dispute, or if you believe that your matter can be worked out amicably without going to court but still wish to seek legal guidance, contact the estate administration attorneys at Cornerstone Law Firm to learn more today.

August 2022 Review

This month the attorneys at Cornerstone Law Firm have been busy with:

  • landlord/tenant actions all over the state
  • personal injury cases that are settling and going to court
  • insurance disputes
  • contractor fights
  • a trade secrets and corporate freeze-out trial

Attorney Stephanie Rauch-Mannino has spent much of her month working out final custody arrangements for families that are splitting up, challenging a post nuptial agreement for unfairness, litigating the proper amount of child support to be paid to a single mom and working on a final distribution of assets in several divorces.

Attorney Tony Distasio has been handling landlord/tenant work for Section 8 clients, where evictions are based on everything from unpaid rent to allegations of criminal misconduct and violence. Attorney Distasio has been everywhere from Pittsburgh to Philadelphia this month as part of hearings on these issues.

Attorney Carl Carrero has been writing briefs and motions and has been to court to handle a request for a delay of a sheriff sale. As sheriff sales pickup and foreclosures continue, Attorney Carrero and the Cornerstone Law Firm team are expecting to see more last-minute litigation over attempts to sell houses after foreclosure.

Attorney Joel Ready began the month handling a 2-week trial on a claim regarding trade secrets and a fight over corporate ownership of a large company. From there, he has handled several contract disputes. He has also been finalizing a few guilty plea agreements in the last 2 weeks to ensure the best possible deal for individuals facing criminal charges.

Finally, the whole staff at Cornerstone Law Firm has been working to ensure that clients’ wills are being drafted, contracts are getting signed, deeds are being drawn up and filed, and that clients are getting quick responses to their concerns. If you have a question about your legal issue, call Cornerstone Law Firm today so we can help you.

Lions and Tigers and…Gerbils? — Pet Custody in Pennsylvania

The divorce process is a difficult one no matter the circumstances. Most issues related to this process carry an emotional component. While we would expect emotions to run high when the parties are deciding issues such as custody and the disposition of the family home, emotional attachments to certain property also can give rise to disputes. Artwork, photographs or irreplaceable keepsakes can be quite meaningful to either party, and the process becomes more than just dividing up things. Although it is clear to most the difference between determining the fate of a chair shared by the parties and that of their child, it might not be so clear when pets are involved.

It should not surprise us that a common question received by family law practitioners is how the divorce process impacts pet ownership. The bond between an owner and an animal can be very strong, and the reciprocal emotional attachment often experienced cannot be replicated. Determining who gets to keep Fifi can be a big battle when dogs or cats are viewed more like children and when both parties have developed an emotional attachment. The issue is that, unless you reside in a select few states, Fifi will be viewed no differently than a TV or a sofa.

While the parties might come to an agreement regarding custody or visitation of pets, and while they might memorialize their intentions in writing, it just might not matter. Outside of Indiana, Alaska, and California, pet custody is not a legal concept. In Pennsylvania, the Superior Court upheld the view that the disposition of pets during the divorce process is akin to the disposition of property (Desanctis v. Pritchard). Specifically, the Court declined to give any credence to an agreement granting an ex-husband visitation rights to the family dog when the dog had been granted to the ex-wife through their property settlement agreement. The Court viewed this no differently than granting a visitation schedule for a table or a lamp, which it never would entertain. There might be some hope on the horizon for pet-lovers after all.

PA House Bill 1432 introduced in 2019 currently sits before the House Judiciary Committee, and rumor has it that the bill has enjoyed bipartisan support. The bill seeks to establish a set of factors for the court to follow in determining the best result for companion animals. If passed, the proposed legislation would add another avenue for the court to aid in resolving the sensitive issues faced during divorce. Until then, the fate of Fido will be determined like every other car or couch shared by the parties.

If you are going through a divorce and in need of some help, contact Cornerstone Law Firm. You can also read our Family Law Tips on when to file for child support, if you need a divorce lawyer, establishing healthy lines of communication, and more.

Drafting a Will: What Should I Include?

When drafting your last will and testament, there are several important questions you will need to ask. While drafting a will can be a fairly simple process for most people, it still contains a few potentially stressful components. This article will lay out for you some of the questions you should be prepared to answer in your first appointment with your estate planning attorney.

Who gets my possessions when I die?

Of course, the most obvious question when drafting a will is who gets your possessions when you pass away. At its simplest level, this is divided in percentages between the different people you want to receive your things. We typically encourage people not to get too detailed with their precise possessions. In other words, do not name the type of car you have and say who gets it. Rather, try to figure out who should get a certain share of your total estate. The reason for this is that what you own is very likely to change before your death. If you leave a Ferrari to one of your children in your will, but you die owning a different car, there is no way to leave the Ferrari that was promised. As a result, the beneficiary loses a significant part of the inheritance that you wanted to leave for that person.

Who should care for your children and any money left for them when you pass?

While the distribution of your possessions might be the most obvious issue to consider, determining who will care for your children is certainly the most important. If you have minor children, your will is how you designate who will be their guardian in the event that you pass away. In addition, you will need to select a trustee for their funds. If you leave money behind for minor children, it will be left in trust under Pennsylvania law until they reach 21 years of age. You can alter this age in your will and include other provisions regarding the type of trust you want for them. These provisions can include requiring that they graduate college before receiving funds, that they abstain from criminal activity, or any other restrictions you wish.

The trustee is the individual who is in charge of making sure that the money is spent for their care, maintenance, and support while minors, and that it is wisely invested so that there is something left for them once they reach the designated age. A common question we get at this stage of the process is whether the guardian and the trustee can be the same person or people, and the answer is yes. You might think to put different people in these roles because someone is good at raising kids but not good with money, or vice-versa. However, selecting the same person or people for both roles is more practical as it gives those raising your children access to the funds meant for their benefit.

Who is the personal representative of your estate?

The final important consideration is selecting the personal representative of the estate. This is the executor who is charged under law with administering your estate. This person is typically paid a fee out of the estate for the work they do on your behalf, so you do not have to think of this as a burden. The executor also will hire attorneys, accountants, and other professionals to ensure that the estate is administered properly. This should be someone you trust to make sure that your wishes are carried out. Preferably, you want to select someone who is diligent, hardworking, and who can handle the details of the estate.

What about other assets?

Some assets such as your IRA, life insurance, and 401K do not pass by your will. These are considered non-probate assets, meaning that they are passed according to their beneficiary designations. If no beneficiary form is listed for such an asset, then it will pass by the will you have drafted, but this is typically something we want to avoid. Accordingly, it is important that you check the beneficiary forms for these assets to ensure that they are passing to the loved ones you intend.

Conclusion

Get your estate plans started today. No one likes to think about their last will and testament, and some people are even superstitious about drafting one, but there is no need for superstition or fear when it comes to wills. They are important documents which ensure that your estate passes to the correct people and that your children or other heirs are taken care of once you pass away.

We have covered only the basics in this article, but there is much more you can do with wills and other estate planning tools, including trusts and business succession plans. If you have questions about these topics, give our attorneys a call so that we can set up a time to meet with you and walk you through your estate plan.

Who Gets the House After Our Break-up?

When you live with someone but are not married, this can create a host of legal issues, particularly when one moves out after a break-up. Who gets the house? If one person owned the house and the other simply lived there, and if that person made improvements to the house while living there, is he or she entitled to payment for any of those improvements? What happens if the two of them purchased a home together, but one person paid all the bills for the house? Does that person have a claim to reimbursement for payment of those bills?

First, under Pennsylvania law, unmarried cohabitants have no property rights in one another’s property simply because they live together. Even if you lived with someone for thirty or forty years, you have no legal right to what is essentially a divorce settlement upon separation. Neither party is required to pay spousal support, alimony, or anything of the kind (child support is a separate issue). However, if you purchased a home together, the two of you do have a right to share in the proceeds of the home once it is sold. In most cases, we are able to help the parties negotiate a resolution where one side buys out the other’s interest in the property. This can be a little complicated, especially when the market is very high or very low. The parties have to reach an agreement on what is the fair market value of the property. If they cannot agree, then one party can go to court and ask for what is called a partition. We have covered partitions in other articles, but this is when the property is sold and the money divided between the two.

What happens if only one person owns the property, but the other person has made improvements? In most cases, this will be difficult to prove because the party will have to show that the improvements increased the market value of the property. Claiming that the improvement made the kitchen look nicer, the floors look better, or that it was some other type of cosmetic change is insufficient. Most types of improvements that people discuss making are cosmetic in nature. Even an improvement with a clear function like a deck fits into this category. To prove that these improvements increase the market value of a property is always difficult.

If you are going through a break-up and you feel that you need legal help, our attorneys have experience in this area and can assist you. Call us today and set up an appointment so we can discuss your rights in the property and how to make it a clean break.

Does my College Aged Student Need a Power of Attorney?

As fall arrives and students move off to college, parents often ask whether their student needs a power of attorney (POA) or medical power of attorney form. Power of attorney forms allow an Agent (Parent) to make financial decisions on behalf of the Principal (Student). In other words, by executing a power of attorney form, your student can make it so that you are able to:

  • make financial decisions for them
  • move money out of bank accounts
  • access their tuition records at the college
  • and more.

A medical power of attorney form does the same thing, but for healthcare. Medical power of attorney allows you to:

  • call and get medical records
  • get test results
  • find out if they tested positive for COVID
  • and more.

To answer the question directly, we usually tell parents that they don’t have to have these forms. While it can make life more convenient, it’s not strictly necessary. As long as your student is good about communicating with you, they can do anything that needs to be done once they discuss it with you. POAs can be helpful forms to have, however. Some parents prefer to be able to move money, make decisions, access accounts, and more, without having to bother the student who is currently in classes, and hopefully studying very hard. For a financial POA, it is important to remember that you also have to fill out FERPA (Federal Education Rights and Privacy Act) forms with your college. FERPA gives students certain privacy rights even against family members who are paying college bills. Accordingly, your student will need to fill out forms with the college acknowledging that you have a right to access information for them, even with a valid power of attorney.

Power of attorney forms are very helpful for students who are studying abroad. For example, they can help if the student has an emergency or doesn’t have access to finances while in another country. POAs would allow you to pay bills or legally sign for them. We strongly recommend power of attorney for people who are leaving to go overseas or who are joining the military.

If you have questions about getting ready for your student to go to college, contact Cornerstone Law Firm and meet with one of our Estate Planning attorneys to learn more.

Real Estate Closings: The Complete Checklist

Buying and selling homes privately can save you a lot of money in realtor fees and other costs, but it often means you must handle the closing on your own. If you plan to have a private real estate closing without the help of a title company or other closing company, it is important to know what you need. Here is a quick checklist of the things you will need to finalize a closing.

Agreement of Sale

If you have agreed to terms with someone, it is important that you memorialize it in writing. Under Pennsylvania law, real estate contracts are generally unenforceable in court if they are not in writing. Do not simply rely on a handshake deal, but get an agreement of sale. Once this document is signed, it will be the centerpiece of the closing. The agreement of sale acts as the blueprint for all the other documents you must prepare.

Closing Summary Sheet

Often referred to as a HUD-1, the closing summary sheet is important because it shows all the money being moved between the parties. Technically, a HUD-1 refers only to certain types of transactions but in practice is used more broadly. This form shows who will pay which taxes and other closing costs as well as fees to attorneys, realtors, brokers, or other professionals who must be paid at closing. One reason that this document is so important and helpful is that it shows you at a glance the payment every person can expect to receive at the end of the day. This allows the closing agent to write out the checks knowing that everyone has seen and approved of these numbers.

Escrow Account

Although not technically required for a real estate transaction under Pennsylvania law, at least one party typically insists on or prefers to have purchase funds escrowed and split up by the closing agent. If money is escrowed, this usually is reflected both in the agreement of sale and in the closing summary sheet.

Who is Present at the Closing?

You will need to decide who should be present at the closing. Will everyone sign in the same place at the same time, or will they do so remotely or at different times? There is no right or wrong answer to this, although doing it all at the same place and at the same time clearly is easiest. You will need to have a notary available for each person who needs to sign a document so those signatures can be verified and notarized. Mobile notaries and remote notaries are available and can be obtained for unique situations, and modern technology has made it easier than ever to handle your closing no matter where you are.

Deed

The final critical piece of the transaction is preparing and recording the deed. This instrument is how title legally transfers from seller to buyer. Recording the deed puts all other parties on notice of the change in ownership, so there should be no major lapse in time between closing and recording it. It is important that you begin protecting your ownership interest in the property as soon after closing as possible.

If you are heading to closing and need help at any stage of the process, our attorneys can give you advice from beginning to end. We also can assist with securing a location for your closing. Call Cornerstone Law Firm today for any questions about your real estate closing.

Family Law Tip of the Week – Good Manners Win

Welcome to Family Law Tip of the Week, a regular series on our blog where we offer tips on how to go through divorce and custody disputes in an amicable way. Divorce should always be a last case resort but if you are going through it, we want to provide some tips on how to survive it.

It might be hard to believe, but the party who behaves better while interacting with the other side in a family law case often will win. When it comes to trial, those who behave well will look better in front of the judge. They tend to help deescalate situations even when the other party is trying to escalate them. They also often end up having better relationships with their children, co-parent, and other people at the end of the case. For these reasons, we cannot recommend strongly enough that you do your best to behave with dignity and class in your interactions, in your preparations, and in the way you handle yourself generally during your case.

Nevertheless, this is easier said than done. Sometimes the other party actively tries to get under your skin, provoke certain reactions, and make you look bad to other people. This only compounds the emotional component of a family law case. Having to negotiate custody and determine how to divide your assets is serious, and this can be a very painful process. Still, the way you treat the other people involved in the case, including in-laws and even your former spouse’s paramour, will impact your result at the end.

We have discussed tips for deescalating conflicts in other posts. One of the easiest to execute is making sure that you communicate in writing when you are angry. If a phone call does not go well, tell the person you need some space, and write your thoughts in an email. This gives you the opportunity to revise those thoughts, cool off, and say things in a more civil manner. Of course, people fire off angry emails as well, which is why you should think carefully about what you have written before sending it.

We hope that this tip is helpful as you navigate your divorce or custody action. As always, if you have specific questions, call Cornerstone Law Firm to schedule a consultation with one of our family law attorneys.

Evaluating Injuries After a Car Accident

When you’ve been in a car accident and are in the process of making an insurance claim, often the most crucial part of the process is to properly evaluate the cost of your injuries. Many victims injured in car accidents ask our Personal Injury Attorneys:

“How do I appropriately value the pain I’ve suffered”?

This article covers just a few of the factors that we use in working with insurance adjusters to come to the appropriate value for your injury claim.

The Amount of Your Medical Bills

The primary factor in determining the value of an insurance claim is the amount of your medical bills. This includes not just the outstanding bills that you owe, but also the bills that have been paid by your insurance or even Medicare or Medicaid. Pain is hard to quantify, but bills are not. The dollar amounts that you have paid to hospitals, ambulance services, and rehabs, the costs of prescription medications and more, are all relevant in determining the size of your claim.

Lost Wages

Although not directly related to pain specifically, the amount of money lost from missed work or the number of personal days you have had to take can be considered in your claim. Attending appointments or time spent dealing with the car accident in general are considered “out of pocket” expenses for which you should be reimbursed. This includes not only visits with your doctor, but also consultations with your attorney or days spent in court dealing with your personal injury claim.

Permanent Damage

Are your injuries temporary, or will they be permanent? Has a doctor told you whether you can expect a full recovery, or will these injuries linger and cause you pain and suffering indefinitely? Permanent injuries are weighed heavily when considering the value of your claim.

Length of Time for Treatment

Another important factor in determining the potential value of your claim is the length of time that treatment will be required. For example, if treatment was required for only a few days or weeks after the accident, the claim is worth less than if treatment were required for months or years. The value of the claim is also impacted by how quickly after the accident treatment was sought and initiated. Was it started, in earnest, quickly? Did it require a trip to the hospital immediately? Was the injury something that developed weeks or months later? The answers to all of these questions can assist in evaluating your claim.

Future Medical Expenses

Just as the length of time that treatment was required can impact the value of your claim, so also can the potential for future medical expenses. If you will need surgery because of your injuries, or if you will need long term treatment and care, that will increase the value of your claim in most cases. Conversely, if no future medical treatment will be required and you have made a complete recovery, that often can put a cap on your potential damages.

The Effected Parts of the Body or Types of Injuries Involved

Another factor considered for your claim is the type of injuries you sustained. Is it a back injury, or a neck injury? Is it a head injury? Each of these have different potential impacts on you and your future quality of life and can be valued differently because of that.

Conclusion

If you have been injured in a car accident, it is vital that you have an experienced Personal Injury Attorney to help you with your case. At Cornerstone Law Firm, our Personal Injury Attorneys help people every day to get the settlement that is right for them. Call us to learn more.