Georgia Wills, Trusts and Estate Planning Blog

Sean Connery has taken steps to leave his son nothing when he passes away.

http://www.dailymail.co.uk/femail/article-1038146/Sean-Connery-says-son-wont-inherit-penny-84m-fortune-But-whats-wrong-wanting-pass-have.html

In a historic ruling back in May, the California Supreme Court paved the way for same sex couples to begin getting married.  California counties began issuing marriage licenses to same sex couples on June 16, 2008.  There is a push to try and get a constitutional amendment banning same sex marriage on the ballot for November.  It remains to be seen if this will be successful.  But for now same sex couple all over the United States can get married in California.

I came across this article on FindLaw.  It is the analysis of two attorney’s on why Heath Ledger’s young daughter could stand to inherit everything the late actor owned even though she was not mentioned in his will.  There are two parts.

 I think most people can agree that Ledger’s young daughter was inadvertently left out of his will.  The will was written before she was born and Ledger probably just never got around to updating the document.  As the article states, Ledger’s will that was executed in 2003 puts everything into a trust for his parents and sisters. 

http://writ.news.findlaw.com/grossman/20080512.html

This first part raises some interesting points.  Under American law, a child can not be accidentally disinherited.   Think back to Anna Nicole Smith.  She expressly disinherited any future children, however, her daughter ended up with her estate anyway.  The article also discusses the rights of disinherited children and children born out of wedlock.  Also discussed is what share is Matilda actually entitled to.  The most interesting point to me is the last section.  The question raised is what is the effect of another child of the deceased that was born before the will was executed.  It has been rumored that Ledger fathered a child while he was still in high school.  If this turns out to be true then this case gets really interesting.

Part 2 of 2 is here

 http://writ.news.findlaw.com/commentary/20080513_gans.html

This part discusses which law should govern where the will should be probated and what law should determine the rights of children born after the will and children born to the deceased out of wedlock.  Ledger split his time between New York, California and Australia.  There are good arguments that any of these laws should govern.  Take a look at the article and I will discuss individual issues in later posts.

I thought a link to this New York times article would be the appropriate followup to the Lauren Marie Richardson posts.  Lots of times even when you have your last wishes in writing it still isn’t clear.

http://well.blogs.nytimes.com/2008/05/01/how-clear-are-your-last-wishes/?WT.mc_id=HL-D-I-NYT-MOD-MOD-M043-ROS-0508-L1&WT.mc_ev=click&mkt=HL-D-I-NYT-MOD-MOD-M043-ROS-0508-L1

This article reminded me of two things.  First, an attorney can help explain to you what all the terms means in a Medical Directive.  Meeting with someone and discussing the form is a better indication of your wishes then simply checking the box on your own and signing a form.  Second, its a good idea to review these documents every few years in case you change your mind.  Also, health care is an ever changing field where new treatments are discovered every day.  Take the time to either execute a directive or review your existing documentation.

Here is another recent article on Lauren Richardson:

 http://www.northcountrygazette.org/2008/04/29/in_search_of_justice/

While this story is obviously written by an author that sides with the father, there is a moral to this story.   You as an individual can decide what would happen to you by filling out a simple form.  While the options are not pleasant to think about, at least they would be your wishes.  Personally, I would not want my parent fighting in a courtroom overt my life and posting videos of me in this condition on YouTube.

In Georgia, this form allows you to do several things that are relevant in the Richardson case.   First, it allows you to designate what type of health care treatment you want to receive.   Second, it allows you to name a guardian and/or health care agent.  These can be the same person but they do not have to be.  In Lauren’s case, her mother has been appointed her guardian.  There is really no way to know if that is what Lauren really wanted.  In Georgia, there is an order of preference but anyone can petition the court to be the guardian of another.  If good cause is shown that the proposed ward needs a guardian, then one will be appointed.

At least take the time to look at the form in the Useful Links section of my website and see how simple it is to fill out.  Having this accomplished gives you the ability to make decisions for yourself ahead of time, just in case there ever comes a time that you can’t make those decisions.

As a follow up to my last post, below is a link to a video of Lauren Marie Richardson.  She is a 23 year old woman who is currently the subject of a court battle in Delaware.

http://www.youtube.com/watch?v=I5ZRWn-gE5g

Remember Terry Schiavo? She was the Florida woman who received national attention when her husband and parents engaged in a court battle over her life.  Currently in Delaware, a similar case is making it’s way through the court system.   As you can see from the story, Lauren Richardson is a 23 year old mother, who like Schiavo was, is in a permanent vegetative condition that requires her to have a feeding tube.  However, in this case it is the woman’s parents that are fighting each other for the power to make the decision on whether Lauren lives or dies.  Lauren has been in this state sine August 2006 when she accidently overdosed on heroin.  She was pregnant at the time and did deliver a healthy baby girl.

Lauren’s mother was awarded guardianship by the Delaware court.  It was in these proceedings where she testified that Lauren had stated before the overdose that she would not want to be hooked up to life support and that she would never want to live that way.  Delaware, just like Georgia will honor a “living will” but there is also the Advance Directive for Healthcare.  I will admit that I am not surprised that a 21 year old heroin user did not have an Advance Directive.  However, if your wishes are similar to what Lauren’s mother has expressed for her, an Advance Directive is a way to make you wishes known.  You are the only one who knows whether you want to be hooked up to a feeding tube or whether or not you want certain medical treatments.  Lauren’s condition has caused her parents to be on opposite sides of this courtroom battle and even her parents have different views on what they think Lauren would want.  These parents have had to endure their daughter in this condition while trying to raise their own grandchild.  The Advance Directive is an easy way to get these wishes on paper so there is no question if you are ever in a situation like Lauren.

Heath Ledger’s will was revealed this week and it was prepared back in 2003 before Ledger hit it big and met the mother of his child on the set of the movie ‘Brokeback Mountain’.  Since it was prepared before he met Michelle Williams it did not provide for Williams or their young daughter.  Ledger’s will left his belongings to his parents and his siblings. Another complication for Michelle Williams is the fact that her and Heath Ledger were not married.  Now Williams is either going to have to go to court or hope that the executor of Ledger’s will was close enough to him to know that he would have wanted his daughter taken care of.  Not only did Ledger have a child since his last Will but it is estimated that his estate went from about $145,000 to almost $20 million.  It is a good idea to update your Will whenever there are major changes in your circumstances such as getting married or divorced, having children, or buying property. Ideally a Will should be reviewed every 2-3 years and updated if necessary. 

Elder Law is a relatively new concept and area in the practice of law.  This field concentrates on helping the growing aging population in the United States.  Elder Law focuses on Estate Planning, Conservatorship and Guardianship issues, Healthcare Planning, Medicare and Medicaid issues and nursing home care.  The concepts of Elder Law that can assist the older population can also include solutions for disabled adults and even children.

Elder Law is becoming a more significant field because people are living longer and people need to plan for more years in the future.  Elder law also affects the baby boomer generation.  Not that they are considered ‘elderly’ but a growing number of this generation are now taking care of their parents.  Certain strategies that benefit these elderly parent could benefit this generation down the road as well.

Britney Spears is always in the news for one reason or another.  This week it was announced that her father was names as her conservator and the conservator of her estate.  When this happens to someone in the State of Georgia, the court usually appoints a guardian over the individual and a conservator over her property and belongings.

A guardianship is a legal right given to a person to be responsible for another individual.  These responsibilities include providing food, health care, housing and other necessities for a person who has been deemed fully or partially incapable of providing these necessities for himself or herself.  In Britney’s case, the guardianship is temporary.  The judge ordered the guardianship to be in effect until at least February 14.  However, a court can appoint a guardian permanently.

A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.  These responsibilities may include taking an inventory of the assets, paying the bills on their behalf and sell or rent property on behalf of the incapacitated person.

Both a guardianship and conservatorship over a person must be obtained by petitioning the court and the court monitors the actions of both to ensure the rights of the incapacitated person.  Both a guardianship and conservatorship can be terminated by the court who grants them in the first place or terminate with the death of the incapacitated individual.

It is possible to avoid the necessity of a guardianship and/or conservatorship through effective estate planning.  An effective estate plan will include a Georgia Advance Directive for Healthcare which will provides an individual the right to insist on certain medical treatment or decline specific medical treatment.  This document also allows you to appoint a trusted individual to make health care decisions for you in the event of incapacity.  To avoid a conservatorship action, you can execute a financial power of attorney to permit a trusted individual to manage your personal affairs in the event of your incapacity. In most cases, when these documents have been executed correctly, it will not be necessary for your loved ones to seek the appointment of a guardian and/or conservator should something happen to you.

You may also choose to place your assets into a living trust, such that they are automatically under the management of a designated trustee in the event that you become incapacitated.