Dementia and Guns: A Tragedy Waiting to Happen

It’s common for families of those with Alzheimer’s and other forms of dementia to realize that at some point, their loved one shouldn’t be allowed to drive. But fewer people know that they should exercise the same level of caution when it comes to restricting their loved one’s access to firearms.

This was one of the findings of a May 2018 study published in the Annals of Internal Medicine covering firearm ownership among Alzheimer’s patients. The study noted that even though 89% of Americans support restricting access to firearms for those with mental illness, there’s been little attention focused on limiting firearm access among elderly dementia patients. Currently there are no federal gun laws prohibiting the purchase or possession of firearms by persons with dementia. And only two states—Hawaii and Texas—have laws restricting gun access for dementia patients.

A ticking time bomb

This lack of attention comes despite an increasing number of incidents involving elderly dementia patients shooting and killing family members and caregivers after confusing them for intruders. And with so many Baby Boomers now entering retirement age, this dangerous situation could get much worse.

In fact, the number of people with dementia is expected to double to around 14 million in the next 20 years, with the vast majority of those over age 65. Nearly half of people over 65 either own a gun or live with someone who does. So it’s clear that firearm safety should be a top priority for those with elderly family members—even if they don’t currently show any dementia signs.

Just talking about restricting someone’s access to guns can be highly controversial and polarizing. Many people, especially veterans and those in law enforcement, consider guns—and their right to own them—an important part of their identity. Given this, the study’s authors recommended that families should talk with their elderly loved ones early on about the fact that one day they might have to give up their guns. Physicians suggest bringing up the topic of firearms relatively soon after individual’s initial dementia diagnosis.

This discussion should be similar to those related to driving, acknowledging the emotions involved and allowing the person to maintain independence and decision control for as long as it’s safe. Even though this can be a very touchy subject, putting off this discussion can literally be life threatening.

All part of the plan

Since it relates to so many other end-of-life matters, this discussion should take place as part of the overall estate planning process. One way to handle the risk is to create a legally binding agreement laying out a “firearm retirement date” that’s similar to advance directives addressing the elderly relinquishing their driving privileges.

Such an agreement allows the gun owner to name a trusted family member or friend to take ownership of their firearms once they’re reached a certain age or stage of dementia. In this way,the process may seem more like passing on a beloved family heirloom and less like giving up their guns. Moreover, the transfer of certain types of firearms must adhere to strict state and federal regulations. Unless the new owner is in full compliance with these requirements, they could inadvertently violate the law simply by taking possession of the guns.

In light of this risk, you should consider creating a “gun trust,” an estate planning tool specially designed to deal with the ownership of firearms. With a gun trust, the firearm is legally owned by the trust, so most of the transfer requirements are avoided, making it a lot easier for family members to manage access after the original owner’s death.

Indeed, gun trusts can be a valuable planning strategy even for gun owners without dementia. Speak with us to see if a gun trust would be a suitable option for your family. A matter of life and death

If you have an elderly family member with access to guns, you should consult with us as your Personal Family Lawyer® as soon as possible. We can not only offer guidance on the the most tactful ways to discuss the matter, but also help you set up the appropriate estate planning strategies to ensure the firearms are properly secured and transferred. Given the grave risks involved, managing the elderly’s access to firearms should be taken every bit as seriously—if not more so—as managing their ability to operate motor vehicles. The safety of both your loved one and everyone who cares for them depends on it. Contact us today to learn more about your options.

This article is a service of attorney Myrna Serrano Setty. Myrna doesn’t just draft documents, she ensures you make informed and empowered decisions about life and death, for yourself and the people you love.That’s why we offer a Planning Session, during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to learn how to get this $500 session at no charge.

5 Planning Pointers for Parents with Children with Special Needs

1. Buy enough life insurance.

A parent is irreplaceable, but someone will have to fill in if the worst happens. It may be siblings or other relatives. In all likelihood, that family will have to pay for at least some services the parent or parents had provided when able. If the estate is not large enough for this purpose, life insurance proceeds can help. Premiums for second-to-die insurance (which pays off only when the second of two parents passes away) can be surprisingly low.

2. Set up a trust.

Any funds left for a child with special needs, whether from an estate or the proceeds of a life insurance policy, should be held in trust for his or her benefit. Leaving money for anyone with a special need jeopardizes public benefits. Many people with special needs cannot manage funds — especially large amounts. Some families disinherit children with special needs, relying on their siblings to care for them. This approach is fraught with potential problems. Siblings can be sued, get divorced, disagree on their responsibilities, or run off with the funds. It can also cause tax problems for the siblings. The best approach is a trust fund set aside for the child with special needs.

3. Legally Document Your Guardianship Choices  

While a will and the appointment of a guardian is important for anyone with minor children, it is doubly so if the child has special needs. Finding the right guardian can be difficult. In some cases, the care needs of the child may be so demanding that he or she will need a different guardian from his or her siblings. The parents need to make these determinations while they can. The will is the vehicle for the appointment of a guardian.

An adult child may also require a guardian when the parent can no longer serve in this role (whether officially appointed or not). It will probably not be legally possible to officially appoint a successor guardian once the parent is out of the picture. So, it may make sense to begin making the transition to a new guardian while the parent is able to assist in the process. This can be in the form of a co-guardianship, or passing the baton to a successor guardian.

4. Write down the care plan.

All parents caring for children with special needs are advised to write down what any successor caregiver would need to know about the child and what the parent’s wishes are for his or her care. Should the child be in a group home, live with a parent, be on his or her own? Usually, the parent knows best, but needs to pass on the information. The memo or letter can be kept in the attorney’s files with the parent’s estate plan.

5. Coordinate with other family members.

Even a carefully developed plan can be sabotaged by a well-meaning relative who leaves money directly to the child with a special need. If a trust is created for the benefit of the child, grandparents and other family members should be told about it so that they can direct any bequest they may like to leave to that child through the trust.

 

This article is a service of the Law Firm of Myrna Serrano Setty, P.A. We don’t just draft documents, we empower families to make the best choices for the sake of the people they love. Call our office today to schedule a consultation.

 

Guardianship: Keeping Up With the Kardashians

You might not be a big fan of this famous family, but the Kardashians recently demonstrated impressive wisdom in protecting their minor children using estate planning.

During a recent episode of Keeping Up With The Kardashians, Khloé Kardashian was preparing to give birth to her first child, daughter True. Khloé was second-guessing her first choice to name her sister Kourtney as the child’s legal guardian in case anything ever happened to her or the baby’s father.

During her pregnancy, Khloé spent a lot of time with her other sister Kim and her family. Watching her interacting with her own kids, Khloé really connected with Kim’s mothering style and pondered if she might be a better choice as guardian.

“I always thought Kourtney would be the godparent of my child, but lately I’ve been watching Kim, and she’s been someone I really gravitate to as a mom,” Khloé said.

To make things more challenging, Kourtney always assumed she’d be named guardian and said as much. Over the years, Khloé had lots of fun times with Kourtney and her family. So Kourtney thought her own passion for motherhood would make her the natural choice.

For guidance, Khloé asked her mother, Kris Jenner, how she chose her kids’ guardians. Kris’ answer was to compare how her two sisters’ raised their own children.

“You just have to think,” Kris told her, “‘Where would I want my child raised, in which environment? Who would I feel like my baby is going to be most comfortable and most loved?’”

In the end, Khloé chose Kim over Kourtney. She explained her decision had nothing to do with her respect or love of Kourtney. But it was merely about which style of parenting she felt most comfortable with.

“Watching Kim be a mom, I really respect her parenting skills—not that I don’t respect Kourtney’s, I just relate to how Kim parents more,” said Khloé. “I just have to make the best decision for my daughter.”

Lessons learned

Khloé’s actions are admirable for several reasons. First off, far too many parents never get around to legally naming a guardian to care for their children in the event of their death or incapacity. Khloé not only made her choice, but she did so before the child was even born.

Khloé also took the time to speak and spend time with her sisters beforehand, so the family understood the rationale behind her decision. Khloé was lucky her choices were close family members, so she had ample opportunity to experience both of their parenting styles.

Depending on your life situation, you might not be able to spend that much time vetting your choice. But at the very least, you should sit down with each of your top candidates to openly and intimately discuss what you’d expect of them as your child’s new parents.

Avoid conflict and court

Furthermore, with multiple family members vying for the guardian role, Khloé’s quick action may have prevented a potential nightmare. If she’d delayed naming a guardian and something happened to her, Kourtney, Kim, and even other family members could’ve gone to court seeking guardianship of her daughter.

This could have led to years of contentious legal battles that not only cost the family huge sums of money, but the potential hardship imposed on the children can be incalculable. Even if you think something like this would never happen to your family, why take the risk, especially when it’s so easy to avoid?

Get started now

While the Kardashians are rich and famous, you too can provide the exact same level of protection for your kids, even with minimal financial resources. It’s important as soon as it’s physically possible to choose someone who will step in to raise your children if you cannot. You must also legally document your choice and make sure the individual you’ve selected knows what to do if they’re called upon.

Many parents have no idea how to go about making this critical decision, much less create a legally binding plan, so they never get around to doing it. And even parents who have legally named a guardian (even with a lawyer’s help) often make at least one of six common mistakes that leave their children at risk.

That’s because most lawyers aren’t aware of all that’s involved with planning for the well-being and care of minor children after their parents’ death or incapacity. But at Myrna Serrano Setty, P.A., we’re dedicated to legal planning for the unique needs of families with young children.

And if you’ve already named guardians on your own or with a lawyer, we can review your existing legal documents. We’ll determine whether you’ve made any of the six common mistakes that leave your kids vulnerable and help you fill those gaps.

Beyond naming legal guardians,  can create a comprehensive estate plan with all of the necessary legal documents to ensure the protection and well-being of your entire family and assets, no matter what happens. Contact us now.

 

Appoint a Guardian to Keep Your Kids In Safe Hands At All Times

 

Every parent who’s watched the news lately has felt the heartbreak over what’s happening to immigrant families at the border. Between May and June 2018, more than 2,300 kids have been separated from their parents at the U.S.-Mexico border.

Think of the horror of kids crying and begging for their parents. What would it be like for your own kids to be taken into the custody of strangers?

Let this be the moment that you place your own fears aside and take a look at the privilege you have of being able to make choices on behalf of your kids to ensure their well-being and care by the people you want, no matter what happens.

It can happen to your family.

Even though most people think that something like that could never happen to their family, they’re totally wrong. While your kids almost certainly won’t be taken into custody by U.S. border agents, your kids could be taken into the care of strangers if something happens to you—even if your family or friends are on the scene.

But you can do something to protect your kids and ensure they’re always in the care of people you know, love, and trust. Take action on behalf of your own kids—instead of merely feeling numbness and paralysis over not knowing what to do—these events can inspire you to do the things you know you must in order to properly take care of your family.

Understand the risk.

While it may seem like a long shot, the consequences are serious enough that you must consider the real possibility of what could happen and ensure you’ve taken right actions to protect your loved ones. Let’s say you and your spouse have gone out to dinner together and left the kids with a babysitter. But on the way home, you’re in a car accident. The police will get to your house, find your kids home with a babysitter, and have no choice but to take your kids into the care of the authorities (strangers) until they can figure out what to do.

This is the case even if you have friends or family living nearby. If you haven’t left proper legal documentation, the authorities have no option but to call child protective services—that is, unless you’ve legally given them an alternative. This is true, for example, even if you have named godparents. You must give the authorities a legal basis for keeping your kids with the close friends or family you designate.

Without your action, when the babysitter answers the door, she’s in complete shock and willing to stay with your kids while the authorities find a relative to take them. Unfortunately, she doesn’t have the legal authority to care for the kids—even temporarily—so the police have no choice but to call child protective services. These authorities will take your kids into custody until they can locate and/or appoint the proper guardian.

Maybe you have plenty of family who’d want to take custody of your kids if something were to happen to you. Maybe some of them even live close by, so the authorities could easily find them. Maybe more than one family member would want to take custody of your kids (and the financial resources you’re leaving behind for them).

We’ve seen what happens when well-meaning family members—who think they’d be the best choice as caretaker for their young relatives—go to battle in the name of love. It isn’t pretty. In such a situation, it takes years of legal fighting, making lawyers wealthy, while the kids are stuck in the middle. In almost every case, each side fighting for the care of the kids feels certain they’re doing what the parents would’ve wanted and what’s best for the kids.

Know your options and your responsibility.

The sad thing is, this all can be completely (and very easily) prevented. However, to ensure your kids are never taken into the care of strangers—or put in the middle of a family conflict—you must take action now. Please do not leave this to chance. You have the privilege to be able to guarantee that your kids are never taken into the care of strangers—or into the care of anyone you would not choose—but you must take action now to exercise that privilege.

Maybe you think this could never happen to your family because your family would never fight over your kids or because you’ve named close friends as godparents. But why take that risk, when it’s so easy to do the right thing by the people you love more than anything?

And if you think you’ve already done the right thing because you have a will that names legal guardians for your kids, think again. We’ve found that in most cases, even parents who worked with a lawyer to name legal guardians have made at least one of six common mistakes that leave their kids at risk.

These mistakes are made because unfortunately, most lawyers do not know what’s necessary for planning and ensuring the well-being and care of minor kids.

Attorney Myrna Serrano Setty has been trained on legal planning for the unique needs of families with minor kids at home. If you’ve already created a will, Myrna can help you identify whether you’ve made any of the six common mistakes that could leave your kids at risk. If you have not yet taken any action, Myrna can help you take the first steps and make the very best decisions for the people you love.

Here’s how to get started.
Call us at (813) 514-2946 to book a comprehensive Planning Session.

You might think that such a thing could never happen to your family, but in these scary times, you can never be too safe.

This article is a service of attorney Myrna Serrano Setty. Myrna doesn’t just draft documents, she helps you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why Myrna’s firm offers a Planning Session, during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Planning Session and mention this article to find out how to get this $500 session for free.

Is Your Family Crisis Ready?

Recently, my mother-in-law suffered a sudden medical crisis and was on life support for about a 24-hour period. We are so grateful that she survived. Everyday we pray that she gets stronger and reaches the next milestone in her recovery.

When a crisis touches your family, it happens when you least expect it. That’s why it’s called a ‘crisis’ and not an ‘appointment.’ You can’t exactly plan for it. But you can be ready. Like it or not, you need to think about how your family would fare in a situation like this. Here are some thoughts and tips I’ve pulled together during my time in the ICU waiting room:

  1. Make sure that your adult kids have a way of getting into your house in an emergency.
  2. A Designation of Health Care Surrogate and Living Will aren’t just documents that you sign at a lawyer’s office. They’re part of a conversation you must have with your family about where you stand on tough medical choices.
  3. The Durable Power of Attorney is the unsung hero of estate planning documents. (It’s “durable” because it still works when you’re mentally incapacitated, i.e. on life support or in a coma).
  4. In many states, if you’re married, your spouse can’t sell property without your signature. So if you’re incapacitated and you have real estate for sale, your spouse will need to postpone the sale or petition the Court for guardianship.
  5. A good health insurance agent will answer your questions over the phone. But a great one will visit you at the hospital and walk your family through your coverage.
  6. Medicare doesn’t cover the cost of long-term care. That’s why long-term care insurance policies and life insurance policies with benefit access riders are important.
  7. When people put off this kind of planning because they think they don’t need it…. or don’t want to spend the money…..or just don’t want to think about it, and there’s a crisis, the cost (money, time and emotions) is A LOT more.

 

Attorney Myrna Serrano Setty doesn’t just draft documents, she guides her clients so that they have peace of mind, no matter what happens. To find out how you can get a valuable Planning Session with Myrna for free, call her office at (813) 514-2946.

 

What You Need To Know About Guardianship

Whether through illness, injury, or other means, anyone can require a guardian to become appointed if they become mentally incapacitated. In such cases, if there is no estate planning in place (or insufficient planning) to keep family or other loved one’s out of court, a guardianship, or conservatorship as it is sometimes called, must be established via a court process in the county probate court.

Obtaining guardianship can be an extraordinarily challenging and expensive process. It begins with filing a petition in court for guardianship and requesting the court declare the incapacitated person incompetent. In some cases, these types of filings are made “ex parte”, or in secret, and a guardianship can be established before family or close friends even know what’s happening. In other cases, such a filing can result in a heated dispute between family members and/or friends, who may claim they’d be better suited for the role. Given this, things can get quite costly very quickly.

Of course, this assumes these matters haven’t already been decided through proper and up-to-date estate planning, including a valid durable power of attorney and advance health care directives, which are the best methods for ensuring this massive responsibility is handled as effectively as possible. Sadly, most people don’t think of the costly possibility of incapacity and therefore leave their families at risk.

If you do have a loved one who needs a guardian, here are some of the things you’ll need to know:

Who can be appointed as guardian?
Unless specified in a valid legal document, any family member or other interested person can petition for guardianship—even a close friend can do it if they prove they’re best suited for the position. That said, most courts give preference to the ward’s spouse or other close family members. In some cases, the guardian is required to post a bond, which typically requires good credit and some level of deposit to be held in the event of the guardian’s wrongdoing. This bond requirement often disqualifies friends and family, who either don’t have good credit or the resources to post a bond.

If a relative or friend is not willing—or capable—of serving, the court will appoint a professional guardian or public guardian. This is one of the ways that an estate can be drained extremely quickly. If you want to hear more about how this can happen, read this terrifying article about the way public and professional guardians are stealing from our elders.

When are guardians appointed?
A guardian will only be appointed if a court determines there is enough evidence to show a person is mentally incapacitated, such that they can no longer make legal, financial, and/or health-care decisions.

What are a guardian’s responsibilities?
Depending on the extent of the ward’s mental capacity, a court-appointed guardian can be given near complete control over a person’s life and finances. Some of the most common duties include:

  • Paying the ward’s bills
  • Determining where they live
  • Monitoring their residence and living conditions
  • Providing consent for medical treatments
  • Deciding how their finances are handled, including how their assets are invested and if any assets should be liquidated
  • Managing real estate and other tangible personal property
  • Keeping detailed records of all their expenditures and other financial transactions
  • Making end-of-life and other palliative-care decisions
  • Reporting to the court about the ward’s status at least annually

The extent of duties the guardian is responsible for is up to the court, and the guardian will not be allowed to act in areas the court has not authorized. Moreover, guardians are required to seek the ward’s preferences whenever possible—though ultimately, the decision about what action to take will be in the guardian’s hands.

The court can also divide out responsibilities to multiple parties. For example, one person may oversee the financial decisions, while another handles living arrangements and health-care decisions. What’s more, the court often requires detailed status reports, such as financial accounting, at regular intervals or whenever important decisions are made, such as the sale of assets.

Are guardians paid?
Yes, guardians are entitled to reasonable compensation for their services based on the ward’s financial ability to pay. The appointed guardian is paid directly from the ward’s estate. In most cases, the compensation must be approved by the court ahead of time, and the guardian must carefully account for all of their services, the time spent on tasks on behalf of the ward, and any associated out-of-pocket expenses.

Given the huge level of responsibility and loss of control that comes with guardianship, the best course of action would be to get proper and updated estate planning in place ahead of time to ensure that if you or anyone you love becomes incapacitated, you can stay out of the court process altogether if possible.

Contact our firm to schedule a Planning Session—first for yourself—and then for the people you love before something happens to make it too late to plan. If it’s already too late and you’re reading this article because you need help petitioning a court for guardianship, contact us now to mitigate the risks, hassles, and expense.

This article is a service of attorney Myrna Serrano Setty. Myrna doesn’t just draft documents, she helps you make informed and empowered decisions about life and death, for yourself and your loved ones. That’s why Myrna offers a Planning Session during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Planning Session and mention this article to find out how to get this $500 session at no charge.

Free Yourself From Court Interference!

The Probate court process can be expensive and time consuming. And on top of that, the idea of strangers discussing and deliberating your assets is upsetting.

Guardianship

When someone experiences mental incapacity, documents in their estate plan can direct a trusted person to carry out that individual’s wishes for the situation. But what if no such documents have been drafted? Then their business becomes the government’s business, too. A court proceeding called guardianship will be held to appoint guardians to manage the affairs of the incapacitated person.

Probate

When an estate goes through probate, the court oversees the gathering of the probate assets, the payment of any outstanding debts, determines whether a will is valid and identifies the heirs. Then the court decides who should receive the assets that are left after payment of debts, taxes, and costs.


Fortunately, there are ways to keep your affairs out of Court.

1. Durable Powers of attorney

With a Durable Power of attorney, you appoint an agent (also known as attorney-in-fact) to make decisions for you, be they medical or financial. It’s called “durable” because it is still valid after the incapacity of the maker of the document. That helps bypass the need for court-appointed guardianship.

2. Trusts

Trusts are agreements that hold some or all of your assets, and trustees can be either individuals or corporate entities. Trusts are designed to avoid probate. There are several types of trusts, and we can help you decide exactly which kind is best suited to your estate. By setting up and completely funding a revocable living trust, you can accomplish two important things. First, you get the peace of mind in knowing that your beneficiaries and won’t go through probate upon your death. Second, you have the flexibility to adjust your plan during your lifetime as your financial or family circumstances change.

3. Make sure your estate plan is air-tight.


Deciding on appropriate powers of attorney and drafting revocable living trusts are just two of the many steps we can take together to keep your affairs free from court involvement. With a solid estate plan put into place with the help of a trusted attorney, you can take comfort knowing that everything you’ve worked so hard to build and maintain will be passed along to only the people who matter most. Give us a call today at (813) 514-2946 to learn more about interference-proofing your estate plan.