Guardianships, who, why, and a little update

Image result for guardianshipCaller: "I need to get a guardianship"

Me:  "Can you tell me why?"

Caller: "Well, I need to get control of my _____"


Stop right there. That's not a why, because you haven't told me why that person needs a guardianship, why it would be in their best interest, and what else you have done to prevent the necessity of one.

That's ok, we can sort that out.

HARD TRUTH #1: You can't take a guardianship out on someone who has capacity, who doesn't want to consent to it.

Ex: "I have to get help for my (insert family member or friend). They are (insert risky behavior) and I'm worried they are going to end up in jail or worse."

Sadly, there is not a guardianship or other legal procedure to help someone who doesn't want to be helped, not unless they have a diagnosed medical issue or they have broken the law.

Ok, now that is out of the way, who is guardianship for? The Texas Estates Code dictates the rules for guardianships, and they are complex, as a guardianship is a harsh remedy to an underlying problem. Like a  power of attorney, you get to act on behalf of someone, financially or medically. Unlike a power of attorney, it requires a lawsuit, its really expensive, and it can potentially take away the ward's (the person whom the guardianship is taken) rights to make any decisions for themselves.

HARD TRUTH #2: Those who really need a guardianship can't always get one, and those who don't deserve them, sometimes get one. 

Ex: "I have a special needs child who just turned 18, and I need to have guardianship to help them apply for benefits. "

If you wait til after your child turns 18, this can be a pickle. PRO TIP- don't wait. Same example as above, a family member wishes to save another from themselves, but they won't agree. Can't do it.

The classic scenario is you have a pressing medical or business decision that requires a person's authority, but they do not have the capacity to grant that decision. Ok, you need a guardianship, what do you do?

You need a lawyer, a doctor's report, and sufficient information for all the ward's family members. The filing fee is higher than other proceedings, they court MUST appoint a neutral ad litem attorney (Add $1000+ to your costs), and then you have to get everyone served. If all the family and others agree, you can estimate costs at several thousand dollars. If someone fights or contests, triple it, and then some.

Once you have a guardian, there are strict requirements for accountings that must be met and add to the cost.

TAKE AWAY:  A guardianship can be a necessary evil, but they are difficult and expensive. If you need one, plan accordingly. If you don't, be thankful.



We have moved offices

If you've tried to find me, I've moved. Come see me at 717 N. Crockett St., Sherman, TX 75092. New phone is 903.964.0852. Same guy, different building


How much does this cost?

I get this question much more regularly now than 5 years ago. Thanks to the internet, we now have access to more information, and if you believe what you read, it SHOULD make things more transparent. Professional services are no different.  

Image result for secretsWhat companies like LegalZoom (often a bane of my existence) have done is the same that companies like CarMax has tried to do for the car industry, or the TDAmeritrades of the finance world: "here are our fees and costs, beat that small business!"

So, how much do things really cost? This transparency is generally good for the consumer, but too much information I believe has made our society overly skeptical about just about every transaction. 

Cut to the chase- I can change my own oil. Probably. But I'd have to buy the equipment, slide under my car (or jack it up and risk getting crushed) get really messy, and then have the spent oil to dispose of properly.  How much does that cost? Likely way more than the dealership or the local shop will charge me, and what the time, energy, and emotional turmoil would add up to. The cost is not just dollars and cents. 

How much does a cavity cost? Or a root canal? Would just brushing and flossing have been cheaper? Yeah, probably. 

The same logic should go into any professional service. Take the most basic thing I do: a Will. 

You CAN do your own at home. If you get it right, its fine. Some really good resources out there to help you, too. 

But if you don't: 

$500 cost for the attorney ad litem to be appointed when you pass, because you had no will. 
~$300 additional time required for filings for your lawyer. 
? Loss of control over where you stuff goes, and who gets it
~$500-$2000 cost savings that having a will provides in options for probate. 

So, what is a will worth? Baseline, $500, in reality much more. Again, the cost is more than upfront dollars. 

The next common question is when to pursue a claim or not. These get a little tougher. 

Caller: "Hello, (lawyer person). My (relative) died, and he had money in the bank. I need to get it." 

Lawyer person: "Ok, how much was in the bank?" 

Caller: "Probably $1000"

Lawyer person: "Did they have a will?"

Caller: "No"

Analysis: We already know that the no will tax is $500. The filing fees for most types of probate are a minimum of $300, with additional required costs of another $200-$300. You're already under water there, and the lawyer person has not even been paid yet. Its a poor result, that could have been fixed with a beneficiary designation. What makes sense at this point? Just walk away. 

The same process goes into any lawsuit. A common one I see is when you have rental property, the tenants move out in the night and steal your kitchen appliances. They owe you $5k in rent and to replace the kitchen will be another $10k. Sue them! Right?!? Maybe not. 

First, you have to find them to sue them. Problem. Next, you're looking at several thousand dollars in filing fees, costs PLUS lawyer time to get a judgment.  All that may be for naught, if they don't own property (which they never do, seeing as they are renters) or have assets you can attach (again, slim). So what is the result? You were stolen from, paid $5k for a judgment that doesn't get you anymore money. Would have rather just done nothing? I think so. 

TAKE AWAY:

In any scenario, more information can be a powerful tool in decision making. When it comes to professional services, lawyers included, you really have to consider more than just money when determining if any course of action makes sense. Is price your main driver? You may lose out on customer service, and be prepared to only have your self to blame if things don't work out.  


US Supreme Court filings: a primer

Sorry I've been gone a while, but I've been busy.

In today's post, I'll walk you through a (very rudimentary) tutorial on the shakedown that is filing things in the US Supreme Court, as I had to teach myself this last month.

Question 1: Why?

-I don't know why, but if you are the Petitioner, good luck. Depending where you look, the odds to get your certiorari granted are less that 5%.  If you are on death row, keep fighting the good fight, assuming you're innocent. If you're trying to keep minorities from voting in North Carolina, then I guess you have to keep trying.  Either way, its a pain to file things in the supreme court, but let's proceed.

Step 1: Get Admitted

So your case is appealed to the USSCT, or you need to appeal a case up there. First things first, you have to be admitted to the Supreme Court bar! Ask around, and some say this is a vanity trip, and I might not disagree. However vane it may be, its $200 and this form to join the club. You also have to find some friends who are part of the club to endorse you. Special thanks to the Richardsons, and Roger Sanders for this endorsement. Mail it off, and they send you an email saying..."one more click and you are confirmed!"

This takes you to a third party framing site, which, after rejecting the several overpriced framing options for your new shiny supreme court bar certificate, you can confirm you actually want the certificate you already paid for as part of your $200 fee. I understand it, because, capitalism and all, but poor form, supreme court, poor form requiring me to click through ten screens of pretty frames just to get my certificate. I digress.

Step 2: Respond

If you are at this point, you probably know your case and have most of the content ready to go. As any 1L or appellate lawyer will tell you, you end up spending as much time formatting as writing. This part is awful. However, I found this template that, while advertising for another company's services, got the job done. But that is just the beginning.

Step 3: The Booklet

Within THE RULES of the Supreme Court, you find out the following:

Rule 33. Document Preparation: Booklet Format; 8 1/2­ by 11-Inch Paper Format 1. Booklet Format: (a) Except for a document expressly permitted by these Rules to be submitted on 81/2- by 11-inch paper, see, e. g., Rules 21, 22, and 39, every document filed with the Court shall be prepared in a 6 1/8- by 9 1/4-inch booklet format using a standard typesetting process (e. g., hot metal, photocomposition, or computer typesetting) to produce text printed in typographic (as opposed to typewriter) characters. The process used must produce a clear, black image on white paper. The text must be reproduced with a clarity that equals or exceeds the output of a laser printer.

What? I can't just do it online? NO, you can't, and you can't do it at home/the office unless you have a print shop. A 6 and 1/8 inch by 9 and 1/4 inch booklet, it turns out, you cannot just make in your own office printer. It gets better.

Your petition has to have a white cover. An opposition? It has to have an Orange cover. Yep, orange. A brief on the merits? Light Blue. After that, you have to file 40 of them with the court, and 3 with all parties. FORTY.

Can't I just outsource this? You bet you can. And the outsources will email you. And Email you. For a complete hands off with response, expect to pay several grand. Cheapest quote I found for just printing and delivery was $1500 I think, most were around $3k and up.

Instead, I called my good friend Ronnie at BnB solutions and he made my little orange books perfectly, and got them to DC on time. Under $200. Ronnie, I salute you.

Step 4: Sit back and wait. 


Now is the easy part, you sit back and hope the Clerks up there agree with whatever your position is, and stick your 40 colorful books in the good pile.


PRO TIP: Call the clerks. They are awesome, usually answer their phones, and will guide you through everything. If they don't answer, they actually call you back.

Conclusion:

If you have to file something in the US Supreme Court, don't fret. It can seem daunting, but as long as you take your time, you can get it done efficiently and cost effectively.






Beneficiary Designations, again.

I've written about beneficiary designations before, but they continue to be a source of conflict I'm seeing for clients. It's not just life insurance, either.

Think about your assets. Bank account, stock account, CD's, IRA's, 401k.  Probably, without thinking, when you set each of these up you had to fill out all sorts of questions. As I'm sitting here, I have no idea who I've named for all my account beneficiaries, and I do this for a living, so I'm guessing most of you do not either.

If truly you have never named anyone ever, then the rules are relatively simple. Whatever your assets are pass under your will, or under the laws of the state where you live if you have no will to your heirs. Unless, the contract for your account says differently. Want to cut out your no good kid? Policy might not let you. Really hate your spouse? Account contract might give it all to them. See why this is important?

Where it gets really sticky is if you try and change things, and something happens, and you don't get it done.

Example:

Wanda Worker has been with her company for 30 years, and has built up a large retirement with stock options that have vested.  She has two children, one who is in the pen for attempting to harm her pet parakeets, and another who is a nun working with disabled children. She fills out the form to change her beneficiary designation on her retirement account and her life insurance to her nun daughter, and on the way to the mailbox to send it off has a heart attack and dies.

Answer:

What happens? Per the usual, it depends.

If left alone, its distributed pursuant to the policy rules. If Wanda was married, usually goes all to the husband. If she was not, split between the kids. There are two different theories out there that could change the result, whoever. In Texas, for life insurance and in limited other circumstances, courts have held that if someone "substantially complied" with the rules to change, its good enough.  Other accounts or policies require "strict compliance" which means if its not done right, sorry.  The problem with the "substantial compliance" standard is it puts someone else in the position to determine another's wishes.

In our above example, at first glance, Wanda did everything she could do to change her beneficiary designation. It wasn't her fault that she had a heart attack, right? Well, why didn't Wanda do it the day, week, month...before? She went to the nail salon instead. Is that doing everything she possibly could have done?

Take away:


You simply cannot be too careful with this stuff. Tomorrow is too late. However, should you find yourself, a family member, or other involved in a situation like this, or where one family member is trying to take advantage of another, thankfully there are options to make it right.

For an example of a case that played out like this, see THIS CASE. Think the result is fair or unfair? Let me know.