While most adults have the legal capacity to care for themselves and determine their own choices, some do not have this ability and must have others who stand in for them. This typically happens when an adult has a disability or medical condition that prevents him or her from maintaining mental capacity. In such situations, a court must step in and appoint a guardina, a person who has the legal authority to make specific types of decisions on behalf of the incapacitated adult. There are, however, alternatives to guardianships that allow incapacitated adults to maintain as much of their decision making rights as possible. The types of alternatives available differ by state so you should consult a local estate planning attorney for specific advice.

• Power of Attorney: A power of attorney is a document a person can create that gives someone else the right to make decisions for the grantor. You can only grant power of attorney if you already have legal capacity, so those with disabilities typically cannot create power of attorney. Adults with capacity can create powers of attorney that take effect if the adult ever loses that capacity.

• Trust: Parents or relatives of a person with disabilities can create a trust that provides financial support for a person with disabilities. Similar to a power of attorney, the trust is a private instrument and, once created, does not have to be approved by a court.

• Limited Guardianships: States allow for different kinds of guardianships, some of which allow the incapacitated adult to make various types of decisions. These different types of guardianships can differ widely, but all require a court to grant guardianship powers.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

If you were smart enough to create a Will in the first place, you should exercise that same intelligence to create a new Will when your life changes. To help you, here is a list of the top five things that may occur in your life to necessitate drafting a new Will and revoking your existing will.

1. You are now happily married! If you created a Will while you were single, you should probably draft a new Will after marriage. In many states, you and your spouse can draft joint Wills.
2. You are now unhappily married! If you are contemplating divorce, in the midst of separation, or are already divorced, you should create a new Will. Although most state laws treat divorcing spouses as having predeceased you, your state may have different probate laws.
3. You have new children. If you created your Will when you were childless, you should create a new Will to incorporate your new additions. If you added another child to your existing brood, creating a new Will makes it unlikely to unintentionally omit your new bundle of joy.
4. You divorce and then remarry. In this case, you may very well have blended families. You should make sure you talk to your estate planning attorney about how your state’s probate laws treat stepchildren.
5. You want to disinherit someone or add someone to your Will. You will have to revoke your old Will or amend it by a codicil to change your existing bequests.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Small estate probate administration exists in some form in all states. This process allows estates below a specific value to be probated without all the requirements of formal, supervised probate. Even if your state does not require the estate administrator of a small estate to have a probate attorney, you’d be better off at least talking to one if you are named executor or administrator. Probate laws differ by state, and only a qualified probate attorney will know all the technical details that you’ll need to know to properly administer a small probate estate.

Qualification: Even before you begin the small estate probate process you may have to talk to an attorney to make sure you qualify. Each state determines what kind of estate qualifies for simplified procedures, and each has its own different standards. For example, states typically set a dollar limit for small probate estates, but how they determine what qualifies as probate property differs.

Procedures: Small estate probate typically requires interested parties to file affidavits with the court. Anyone claiming property must file an affidavit that states what property he or she is entitled to take and do so within a specific time period. However, states may have different forms claimants have to file depending on whether the decedent died intestate or left behind a Will. They may also require the individual claimants to file their forms or have the estate administrator do it.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

When you become the guardian for a legally incapacitated adult, it falls to you to make specific decisions on that person’s behalf and in his or her best interests. As a guardian, you have a legal duty to meet your obligations and not to abuse your position and cause the adult, known as a ward, undo or unnecessary harm. Though the legal standards that apply to guardians ( elsewhere, sometimes called “conservators”) differ slightly between states, there are some general duties that you should meet in order to adequately perform your task as a guardian.

Individual Rights: As a guardian, you are entitled to make decisions on behalf of the ward because the court has determined that the ward is unable to make decisions on his or her own. However, this does not mean that the court has stripped away all the ward’s rights. Ward’s must still be treated respectfully and must not be abused or mistreated in any way. Violating these rights can lead to criminal sanctions against the guardian.

Preferences: While the court grants a guardian specific rights, the ward may still offer his or her opinion about what choices the guardian should make. The guardian should take these opinions and preferences into account whenever making a decision on behalf of the ward. That does not mean the guardian must do what the ward wishes, but it does mean that the guardian cannot completely ignore the ward’s desires.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

When you establish a living trust you create a unique relationship between several key people. The settlor is the person who creates the trust and gives the beneficiary the right to use that property. The settlor, sometimes called a trustor or grantor, must also appoint a trustee. The trustee administers or manages the estate so the beneficiary can use the property and must do so in accordance with the terms the settlor establishes. But can the settlor also serve as the administrator and name him or herself as the trustee? Generally, yes, though there are a couple of issues you need to consider.

The settlor of a living trust can name him or herself as the trustee. However, the grantor must be careful to manage the trust carefully or the ability of a trust to avoid estate tax may be compromised. Also, testamentary trusts are not capable of having a settlor who serves as trustee. A testamentary trust is established through the settlor’s last will and testament, a document that only takes effect when the settlor dies. Further, regardless of the type of trust you create, you cannot be a settlor and serve as both trustee and beneficiary. You should speak to an estate planning attorney if you’re considering creating a trust and serving as trustee or beneficiary so you don’t run into problems later.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Another important legal element under the Washington Death with Dignity Act is that a terminally ill patient may only request lethal doses of medication to end their life from a qualified physician. A qualified physician is one with a Washington State medical license to practice medicine or osteopathy. Once a terminally ill patient makes their written request, the physician does not have to comply with their request. The physician has an absolute legal right to decline participation. Similarly, a physician who approves the request does not have to physically witness the self-assisted suicide.

Family members do not have legal notification rights under the Washington Death with Dignity Act. This means that a terminally ill patient does not have to notify any of their relatives of their desire to end their life. However, once a qualified physician receives the terminally ill patient’s written request for the lethal medication, the act requires the physician to recommend that the patient notify their next of kin. The attending physician does not have to verify or otherwise make sure of the patient’s actual notification. It is sufficient that the attending physician simply recommend the notification to the patient’s next of kin.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

The Washington Death with Dignity Act applies to Washington State residents with valid proof of residency. The terminally ill individual must establish proof of residency by providing a registration to vote in the state, proof of property ownership within Washington, or a Washington State driver’s license. The state may accept other forms of proof to establish residency. Once a terminally ill patient establishes residency, they can make a request for a lethal dose of medication from a qualified physician. A terminally ill patient is one who suffers from a terminal illness with less than six months to live and which will eventually lead to death within this timeframe.

The Washington Death with Dignity Act includes an important statutory witness prohibition. A person who is a potential heir under the patient’s will or intestate heir through the state’s intestate succession laws cannot serve as a witness. Thus, you may have to speak with your estate planning attorney to understand who may be entitled to inherit a portion of the estate at death.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

In 2008, the Washington State Legislature passed the Death with Dignity Act. Codified in the Revised Code of Washington, the act permits physicians to help their patients die with their assistance in very limited circumstances. In other words, physician-assisted suicide is permissible in certain situations. Obviously very controversial, many residents opposed the act, while some strongly supported its passage. The next series of blogs will cover the specific elements of the act and further explain what is necessary to invoke the statutory ability to perform a self-assisted suicide.

The Washington Death with Dignity Act allows adults age 18 or older with terminal illnesses the legal right to make an informed decision to end their lives with the assistance of their physicians. A terminally ill patient must have less than six months to live to seek coverage under the act. Furthermore, only qualified physicians may make decisions to administer controlled medication to residents seeking to end their lives. In other words, a Washington resident must ask their physician to prescribe certain medication for the specific purpose of ending their life, and the patient must self-administer the medication.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

The Washington State Legislature created a relatively simple procedure for helping insolvent decedents. The Washington Creditor’s Claim Procedure allows creditors to settle their debts outside of probate. Often, small estates are not subject to probate procedures pursuant to Washington State law.

Often called a Personal Property Affidavit or Small Estate Affidavit, the Revised Code of Washington sets forth a procedure for individuals with small estates to avoid probate procedures. A Small Estate Affidavit allows a resident to avoid probate using a statutory form if their assets do not exceed $100,000 and only include personal property. In this case, a Washington State resident can devise all of their personal property using the Small Estate Affidavit without going through probate. A resident with more debts than assets cannot use the affidavit to convey property and avoid their creditors. As such, if you are a Washington State resident without real property and your net worth is $100,000 or less, you can use the statutory form if you take care of your debts owed to creditors.

According to the Washington Revised Code, personal representatives or executors of a decedent’s estate must strictly comply with the statute triggering the limited period for creditors to make claims against the estate. Failing to comply with the strict statutory requirements may give creditors up to 24 months to make their claims and prohibit you from making distributions to heirs for the entire period.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.

Continuing the three-part blog series covering Washington State’s law allowing personal representatives and executors to expedite the allowable statutory limitations period in which creditors can file claims against a decedent’s estate, this final blog covers the mechanics of the Washington State Creditor’s Claims Law.

The Washington Legislature passed the Creditor’s Claims Law that allows creditors to receive their debts within a relatively short period thereby allowing heirs to receive their inheritances quicker. Without the statutory provision, creditors would have 24 months to make their claims for unpaid debts after a decedent’s death. With the statutory provision, creditors have only four months to claim their debts after the estate publishes a Probate Notice to Creditors in a local newspaper of general circulation. Whereas before the state passed this statute, heirs had to wait at least 24 months to receive their inheritances, they are only required to wait four months after the state passed this statute. Creditors have up to four months to perfect or make their claims for unpaid debts against estates.

You can contact our office to schedule an appointment to discuss your estate planning options and potential claims from creditors. We can help you determine if you can take advantage of the Washington State Creditor’s Claims Law.

Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.