From a legal standpoint, moms and dads don’t have a lot of rights after you turn eighteen. But we often rely on our parents more than we realize, something I was jerked into remembering during my junior year of college when I was rushed to the emergency room and soon told that the surgical team was ready for me. Ummmm….can’t I call my mom first???!!!
Fortunately my situation worked out, but as a lawyer, I can’t help thinking about what if I had not been awake to call my parents. What if I needed more extreme medical treatment and couldn’t tell the doctors what I wanted?
This is where you can learn from my mistakes. Get your legal shit together before you head off to college. Or after. But as soon as you can. I will even help you get everything completed by video call.
As a bona fide adult, you need a minimum of three documents in case of an emergency:
Healthcare Power of Attorney– This document allows you to appoint someone you trust to be your health care agent if you ever become incapacitated and unable to speak for yourself.
Financial Power of Attorney– A financial power of attorney allows you to give someone else permission to access bank accounts and act financially on your behalf if an emergency occurs. That means paying bills, completing financial aid or loan applications, dealing with insurance companies, and other ways that, well, adulting sucks. You’ll need to choose whether you want this to become effective immediately or only when you are unable to handle your own business.
Signed HIPAA Form– Now that your parents don’t have access to your medical records, you might want to consider authorizing someone to see them. Often family is a good go-to for all things medical (see: hereditary conditions) but you can name anyone-and everyone- you’d like. Mom, Dad, Brother, Best Friend, Fifth Grade Teacher? If you love them enough to share your blood panel results, then a HIPAA waiver is no biggie.
If you wanna get fancy, you can also sign a FERPA waiver to let your trusted adult have access to your educational record. It’s the grown-up version of the school sending home your report card to show how smart you are. 🤓
These are your documents, so you can name any adult you want to act in case you can’t (or don’t want to). In most cases that’s a parent, but let’s be real. Not all parents are created equal. Sometimes your “trusted adult” is your aunt, your neighbor, or your cousin. Whoever you name, it should be someone you trust with your life and your 💵 bank account.
When you’re ready to start getting your adult shit together, feel free to book a call with us or shoot us a text. The cost for all of these documents together is $500 through our office, and I bet mom and/or dad would even be willing to foot the bill if you show them how responsible you’re being!
Nashville guardianship lawyers are asked this question nearly every day! The answer is…maybe. Before you begin to worry, let us explain.
By law, parents are the natural guardians of their children, regardless of the parents’ relationship. When unmarried or divorced parents have a formal parenting plan and one party passes away, that parenting plan is no longer valid. In most cases, the child’s permanent custody would revert to the surviving parent.
What If the Surviving Parent is “Unfit?”
If there are concerns about the fitness of a surviving parent, the State of Tennessee has a provision where a third party can step in and apply for guardianship of a minor child. For example, a grandparent may be compelled to apply for guardianship if they feel the surviving parent is not capable of raising the child(ren). Unfortunately, in these circumstances, the burden of proof is on the grandparent (or other petitioner). The third-party would have to prove in court that the surviving parent is unfit, which could result in an expensive and lengthy custody battle.
You Can Still Have a Say
As a parent, you can also take steps to make your wishes for your children known in your will. If you believe that your ex is unfit or unable to care for your children in your absence, you can use your estate plan to spell out your concerns and offer up alternative choices for guardians. After your passing, a judge will be given the opportunity to review your wishes and ultimately decide if choosing a guardian other than the biological parent would be in the child’s best interest.
Even if your ex were to obtain physical guardianship over your child(ren), that does not mean that they have to get any money that you have set aside to care for your child in the event of your death. Many people use trusts to control how any inheritance is managed rather than potentially letting the other parent gain control over the child’s financial assets. A well drafted trust allows you to manage your child’s financial future even after you are gone.
What if parental rights were terminated?
If the surviving parent has previously had their parental rights terminated, they will not be considered for guardianship of the child(ren) after the death of the other parent. In these cases, it is extremely important for the parent who retains rights to have an estate plan that spells out exactly who should raise the child and what resources are to be used to do so if something happens to mom or dad.
Get Informed to Be Empowered
While guardianship questions are rarely black and white, the solution in almost all instances is to create an estate plan. There is nothing more important in life than protecting our children’s future, and a straightforward estate plan can give you the peace of mind that your child will be protected no matter what!
If you have questions or you are ready to get started with creating legal documents to protect your family, please schedule an appointment with our Nashville guardianship lawyer, April Jackson.
From a legal standpoint, parents don’t have a lot of rights after you turn eighteen. But we often rely on our families more than we realize, something I was jerked into remembering during my junior year of college when I was rushed to the emergency room and soon told that the surgical team was ready for me. Ummmm….can’t I call my mom first???!!!
Fortunately my situation worked out, but as a lawyer, I can’t help thinking about what if I had not been awake to call my parents. What if I needed more extreme medical treatment and couldn’t tell the doctors what I wanted?
Here’s what you need…
This is where you can learn from my mistakes. Get your legal shit together before you head off to college. Or after. But as soon as you can. I will even help you get everything completed by video call.
As a bona fide adult, you need a minimum of three documents in case of an emergency:
Healthcare Power of Attorney– This document allows you to appoint someone you trust to make decisions if you can’t communicate with your medical providers.
Financial Power of Attorney– A financial power of attorney allows you to give someone else permission to act on your behalf on financial matters. That means paying bills, completing financial aid or loan applications, dealing with insurance companies, and other ways that, well, adulting sucks. You’ll need to choose whether you want this to become effective immediately or only when you are unable to handle your own business.
Signed HIPAA Form– Now that your parents don’t have access to your medical records, you might want to consider authorizing someone to see them. Often family is a good go-to for all things medical (see: hereditary conditions) but you can name anyone-and everyone- you’d like. Mom, Dad, Brother, Best Friend, Fifth Grade Teacher? If you love them enough to share your blood panel results, then a HIPAA waiver is no biggie.
If you wanna get fancy, you can also sign a FERPA waiver to let your trusted adult have access to your educational record. It’s the grown up version of the school sending home your report card to show how smart you are. 🤓
Who should you name?
These are your documents, so you can name any adult you want to act in case you can’t (or don’t want to). In most cases that’s a parent, but let’s be real. Not all parents are created equal. Sometimes your “trusted adult” is your aunt, your neighbor, or your cousin. Whoever you name, it should be someone you trust with your life and your 💵 bank account.
When you’re ready to start getting your adult shit together, just text the word ADULTING to 615-846-6201. The cost for all of these documents together is $500 through our office. Your family might even be willing to foot the bill if you show them how responsible you’re being!
In life, there are jobs we seek out and others that are given to us. Being named an Executor (or Personal Representative) of an estate is one of the most important jobs one can be asked to hold by another person. It means there is someone who trusts you fully and believes that you will manage their final wishes properly and without conflict.
That’s not to say the job is easy. Again, you were likely appointed to the role of Executor because your loved one felt you could handle any stress or difficult responsibilities that come with the job.
The good news, however, is that there are ways to prepare in advance so that your life as an Executor is easier when the time comes. Here are some suggestions a Middle Tennessee will lawyer would have you consider:
Have the hard conversations now. Meet with the person who is naming you as an executor of their estate and ask them to describe exactly how they wish their estate to be administered. Take notes and make sure you get all the details. Knowing the “why” behind the decisions in the will can help you navigate “gray area” choices if they arise.
Be organized. The job of an Executor consists of lots of paperwork, bureaucracy, and time maintaining the estate as it goes through the probate process. Set up a filing system, spreadsheets, and bins, so the Executor’s job does not infringe on your everyday life.
Get a lawyer. No matter the size of the estate, it is prudent for all involved parties to have a lawyer. At the minimum, have a consultation with an attorney to make sure there is not something you have overlooked. People often think they can do everything themselves only to be caught at the end by taxes or administrative issues.
Move quickly once the person passes away. Grief makes people act in unexpected ways, so it is imperative that after the person dies, you move quickly to locate the original final will and file the necessary paperwork with the courts to be recognized as the Executor. At this time, order up to 8-10 copies of the death certificate to save yourself time later. Another uncomfortable thing you will need to do is to secure the assets. All too often, grieving loved ones will go to the home and begin to take items they believe they should have. You will have to be the one who stops this.
Be upfront with the heirs of the estate. Make sure they all get a clear understanding of how estate administration works. The process is a slow one, which frequently frustrates family members who are grieving. By giving them an explanation or better yet, having a lawyer do it, they will hopefully have patience with you and avoid conflicts.
Know there will be conflicts. Grieving is an individual process, and you will take the brunt of most of that emotion. If money is involved in the administration, the speed at which money is inherited can be infuriating. Heirs becoming angry with you is even more of a probability if any perceived omissions or secret bombshells are in the will. Hopefully, if that is the case, you knew ahead of time and were prepared.
Heirloom distribution needs to be deliberate. Once the significant assets and personal items are named in the will, the hard part starts. Deciding who receives the personal items in the home can cause the most conflicts. There is no explanation for the small household items that might have importance to many family members. A sweatshirt, a picture frame, or a dish can hold deep memories that you might be unaware of. Creating an equitable system for if multiple people want an item will ensure this process is done deliberately.
These are only a few ways you can help yourself if you have been named an Executor. If you find yourself struggling with your duties or you have questions and need some advice, we are here to help. To have an appointment with our Middle Tennessee will lawyer, April, schedule an initial call with us today!
In the majority of cases, it’s a biological parent (or parents) who will apply to become their child’s legal conservator when they turn 18. But even parents will ask us if they are able to appoint an “alternate conservator” or someone else who can help with all required responsibilities and duties. Most commonly, we are asked by parents of individuals with special needs if they can appoint one of their other adult children, a stepparent, a sibling, a grandparent, or other relative to serve as co-conservator who could have the same legal rights as the main conservator.
Legally speaking, having a co-conservator is absolutely possible, and it’s something we often consider to help lighten the load. However, the parent or main conservator cannot appoint this person themselves. Instead, the candidate will need to go through a formal legal process with the Tennessee courts where they will petition to serve as a co-conservator. During this process, the court will need to verify that the person is indeed capable of serving in this capacity, and from there, a judge will ultimately approve or deny the request.
When we meet with families to start the process of filing for a conservator over a young adult with special needs, we will typically ask up front if the main candidate for conservatorship wants someone else to serve in a co-conservator role. In general, it’s easier and less expensive to take care of everything all at one time. The bottom line is that every family is different, and it’s important to work with an attorney who will help you create an individualized plan that actually works over the long haul.
Here at the Graceful Aging Legal Services, we want parents and caregivers to feel as secure and supported in their roles as possible, as that ultimately results in the best care for the person with special needs. If you have questions about how to create a Special Needs Plan that takes into account the unique dynamics or challenges in your family, please feel free to contact us at (615) 846–6201 to schedule an appointment.
Have you ever thought about what you want to happen to your “digital assets,” including your Facebook page, after you pass away?
This is a question that Big Tech giants have spent the past few years grappling with as more and more of our lives are lived online. As such, companies like Facebook have started developing solutions to help account holders more easily “pass on” their digital real estate to loved ones and friends following their death. “Legacy Contacts” is one such feature that permits this to happen on the platform.
Until the creation of the Legacy Contacts, loved ones of the deceased only had two choices to manage an existing Facebook Account:
Leave it a public wall (that no one had “behind the scenes” access to) where people could continue to post messages; or,
Request that the page be “memorialized,” which rendered the profile invisible and unsearchable to those who were not already connected with the account.
Now with the Legacy Contact feature, Facebook account owners can name who they want to manage their profile in their absence. This “heir” would immediately have access to friend requests, pictures, and the management of content on the profile page.
Or, for those who want their Facebook account to remain private, the Legacy Contact feature also gives users the option to request a full deletion of their account after death.
Type in a friend’s name in Choose a friend and click Add.
To let your friend know they’re now your legacy contact, click Send.
To change or remove a legacy contact, follow steps 1–2 above, then click Remove. From there, you can add a new legacy contact if you’d like.
If your account is memorialized, your legacy contact will be notified. Learn more about what a legacy contact can do. Note: You must be 18 or older to select a legacy contact.
Utilizing Legacy Contacts is an easy and straightforward way to let Facebook know how you want your private social media information to be handled after your passing. If you have any additional questions about how to include your digital assets as part of your estate plan, please contact our office to schedule an appointment.
One thing the COVID-19 crisis has brought to the forefront of many people’s minds is the need to update older estate plans, including their Last Will and Testaments. We were collectively reminded that having an updated estate plan is incredibly important, no matter how old you are. In general, a Nashville estate planning lawyer will suggest updating your estate plan every three to five years.
The reason for this is simple: a lot can change in that time. A child can go from middle school to adulthood. Babies are born, marriages end and begin, finances, homes, and jobs could change. After many of these changes, people wonder if they need to rip up their old estate plan and start over fresh in order to have documents that accurately reflect their life.
But, ripping up your documents is not the correct way to revoke an older plan and could actually cause problems for your family. Instead, to have an updated plan that is recognized by the courts, the better practice is to revoke your previous documents in writing at the same time you replace them. That way you don’t have any lapse in your planning documentation.
If it’s necessary to revoke and replace an older Last Will and Testament, your Nashville estate planning lawyer will likely suggest reviewing your other estate planning documents as well. That may include refreshing an older power of attorney, creating an updated medical directive, or changing out the people you’ve named in helper roles in your plan, like your Executor or Trustee.
The bottom line is that if you want to make changes to an older plan, do it with the help of an experienced estate planning lawyer. There are legal steps that must be taken to ensure that your new documents are valid and that old documents no longer carry weight in the eyes of the court. The last thing you want is your family coming up with multiple wills and fighting over which will should stand after your passing.
If you’re thinking of updating an older plan, or you’d like to revoke an older will and create a new one, we invite you to schedule an initial call with April to discuss your plan.
There are a lot of different estate planning and asset protection planning trusts out there: revocable living trusts, Medicaid asset protection trusts, and life insurance trusts are just a few of them. One type of trust that Davidson County trust lawyer find to be useful, though sometimes only in narrow circumstances, is a Tennessee Investment Services Trust, also known as a TIST.
What is a TIST? A TIST is a self-settled trust that can be used to protect financial assets, real estate, personal property, and business assets from future creditors. Like most other trusts, once these assets are transferred into a self-settled trust, they’re legally owned by the trust and not by you. A TIST is an irrevocable trust, which is the key feature in making sure that future creditors cannot reach the assets that are in the trust.
What are the limitations of a Tennessee Investment Services Trust? There are a few limitations to these types of trusts. The biggest limitation is the fact that they cannot protect assets from past creditors, so any debts incurred before the trust is created are still liable to be paid out from trust assets. These types of self-settled trusts are also not allowed in a number of states, as many lawmakers were worried that these trusts could be used to wrongfully avoid creditors. Tennessee allows these trusts to be established whether or not you live within the state.
How do I create a Tennessee Investment Services Trust? If you want to create a TIST to avoid future creditors, your first step should be to speak with a Davidson County trust lawyer who has experience with drafting this kind of self-settled trust. Once you’ve chosen an attorney to create your trust, you’ll have to provide the following information:
The creditors from whom you want to protect your assets. Many people choose self-settled trusts if they worry about possible accidents or injuries, work in high-risk professions with liabilities, or own a business.
The trustee of the trust. You cannot choose yourself as the trustee of your own self-settled TIST, since that defeats the purpose of the assets no longer being in your control. You’ll need to choose someone you trust or a corporate trustee who can fulfill those duties.
The assets that will go into the trust. Typically, people will put financial assets and real estate property into their self-settled trust, but everyone’s individual situation is different. You should bring a list of all your assets when you meet with your attorney so you can better determine what assets will go into the trust.
If you’d like to learn more about self-settled trusts, including Tennessee Investment Services Trusts and how one can fit into your estate plan, or if you currently have a self-settled trust and would like to have it reviewed by our experienced Davidson County trust lawyer, please contact us at (615) 846-6201 to set up a consultation.
There are many options available to seniors who would like access to liquid assets, and reverse mortgages are one of the most common – and misunderstood. Our Nashville elder law attorney has outlined everything you need to know about reverse mortgages, so you have the information you need to make the best choice possible.
What is a reverse mortgage? A reverse mortgage is a financial tool available to older adults aged 62 and older who own their homes. It allows them to use their home equity as collateral to receive a lump sum, line of credit, or annuity to receive money. This makes the homeowner the borrower and the bank the lender, which means that interest will need to be paid on the monthly repayments to the lender.
When is the reverse mortgage loan due? Typically, the borrower is responsible to make monthly payments to the lender until the amount that is borrowed is paid back. However, there are certain circumstances where the entire amount of the loan could be called for immediate repayment:
The borrower lives in a different primary residence. You must live in the home if you have a reverse mortgage, even if you still own the home. The lender will call the loan due if you rent out the home or move out for any other reason.
The borrower does not live in the home for 12 consecutive months due to health reasons. A senior suffering from health conditions who moves into a nursing home must move back to the home within 12 months, otherwise, the loan will be due.
The home is sold. The loan will be called due if the borrower either sells the home or transfers the title of the home to another person who is not also a borrower of the reverse mortgage.
The borrower passes away. There are cases where a non-borrowing spouse may be able to remain in the home after their spouse passes away, but certain conditions must be met. It’s best to speak with an experienced elder law attorney to find out how to avoid leaving the house if the loan is called due upon the passing of a spouse.
The loan agreement is breached. Reasons for a loan breach included non-payment of property taxes, a lapse in homeowner’s insurance, or if the house falls into disrepair.
Obtaining a reverse mortgage could be beneficial in certain circumstances, but there are a lot of different issues you should be aware of before you take out this type of loan. It’s best to consult with an elder law attorney who has experience with reverse mortgages to find out if it is the best solution for you.
If you’d like to learn more about reverse mortgages and how they can impact estate planning, or if you have a reverse mortgage and want to have your existing estate plan reviewed, please contact us at (615) 846-6201 to set up a consultation with our Nashville elder law attorney.
The power of attorney is one of the most important documents in your estate plan, but there are some common mistakes that could render it ineffective. Knowing how to spot these mistakes is key to make sure that you get the most out of your power of attorney and all the benefits it provides. Here are three of the most common mistakes that our Hermitage estate planning lawyer sees people make with their power of attorney documents and what you can do to avoid them:
Creating a Very Limited Power of Attorney
One common mistake is underestimating what you’ll need a power of attorney to actually do for you. Many people assume they’ll only need it so a loved one can help pay some bills or take care of complicated finances. But what happens if you become incapacitated and need nursing home care and your house needs to be sold to pay for that care? If your power of attorney does not provide for real estate property transactions, then your loved ones will have a very hard time getting things settled. You should make sure that your power of attorney covers the following items at a minimum:
Real estate property
Digital property
Investments
Tangible personal property
Bank and financial accounts
Taxes
Business dealings
Trusts and gifting powers
Adding a Loved One as Joint-Owner on an Account
You might think you can use an easy loophole – adding a loved one to your bank account – to avoid having to create a power of attorney. Sure, your loved one will then have access to the account and will be able to pay bills and make transactions as needed, just as they could do with a power of attorney. But the issue is that once you make that loved one a joint owner on the account, that account effectively becomes their property. Using a power of attorney is a much cleaner way to let someone else handle your financial affairs.
Not Using Your Power of Attorney
This may seem like a no-brainer, but there are plenty of people who make a power of attorney document and stick it in a safe or a desk drawer without ever telling anyone about it. Your banks and financial institutions will have no idea about it and could give some trouble to your loved ones when they present it – that is, assuming your loved ones even know where to find the document. The best way to avoid this is to send copies to your bank and other financial institutions where you do business and make sure your loved ones know where to find your documents if they ever need them.
If you have more questions about your power of attorney, or if you’d like to create a new power of attorney as part of your estate plan, please schedule an initial call with April to talk over your plan.
