The World of Elder Law, Trusts, and Estate Administration
When it comes to fears about sickness and dying, one of the biggest added concerns is the possibility of probate. This can take the form of elder law (guardianships and conservatorships), estates, or trust matters. Across America, we hear horror stories of “probate” as lengthy, expensive, complicated, and full of conflict. Every state has a different set of rules for probate, but rest assured that probate in Colorado can be a smooth process.
Even a well-crafted estate plan can find its way to probate. This happens because of the way you titled your assets (e.g. house, cars) at the time of death. And even with documents like a Last Will, you must take extra steps to avoid court proceedings.
Importantly, Colorado has a very effective, streamlined system for probate as either an “informal” matter or a “formal” matter. Depending on the legal issues at hand, the process may only take months to complete. Unfortunately, probate cases open the door for fights between heirs and claims by creditors. Even with the best intentions, any interested person may challenge an estate. The resulting litigation can last for years and cost substantial amounts. So although probate is not as daunting in Colorado, it is still an involved process with many requirements.
Guardians for Children
The death, disability, or other loss of a loved one is extremely difficult time for anyone, but none more so than a child. While the adults scramble to pick up the pieces, they may forget the child left behind is experiencing endless difficulties. It is important to address the child’s needs quickly, which likely means pursuing a legal guardianship.
“Guardianship” is a probate action filed in the county where the child resides. By Colorado law, any person interested in the welfare of the child can petition appointment as the child’s guardian. If, however, a valid guardian nomination exists, the nominee receives top priority for appointment. A person can make nominations through documents such as a Last Will or General Power of Attorney. If the child is older than 12, they have a voice and can ask for a specific appointment. Once the probate judge finds that a certain person is best to take over care, it can appoint that person as Emergency (up to 60 days), Temporary (up to 6 months), or Permanent Guardian (until age 18). Afterwards, the guardian must file initial and annual reports until the guardianship terminates.
Guardians & Conservators for Adults (Elder Law)
Similarly, when an adult becomes sick or disabled and can no longer make decisions for themselves, it creates a great strain on the family. When coupled with years of unresolved conflicts, this “incapacity” often results in children fighting over the best plan of care for their parent. The failure to reach agreement leads to fights over doctor appointments and medical procedures, housing arrangements, management of finances and property, and an overall lack of decision-making. All the while, the parent is in the middle, of the fight, helpless.
In planning for incapacity, the most effective solution is to create Medical Durable and General Durable Powers of Attorney. But if the adult did not, and now cannot, sign a Power of Attorney, the only option left is the local probate court. These “protective proceedings,” also known as elder law proceedings, and consist of Guardian (medical) and Conservator (financial) appointments for the adult. The cases are filed and managed in the county where this “Protected Person” resides. The proceedings grant court oversight and supervision for the Protected Person’s affairs, which has both benefits and drawbacks. Court supervision minimizes the risk that anyone can steal money, cut the person off from contact with family, etc. However, any major decisions, and most bill payments, require court approval, creating added delays and expenses in caring for the Protected Person.
Serving as the Trustee, Trust Protector, or Beneficiary of a trust can be an extremely daunting endeavor. Trustees, and some Trust Protectors, are “fiduciaries” that have many legal requirements. Complying with all the “fiduciary duties” of a trust is a constant process. Trustees manage assets, make investment decisions, prepare accountings, make distributions, and deal with conflicts that arise between beneficiaries. All these tasks can overwhelm even the most well-prepared individuals. Beyond the Trustee, a Trust Protector is responsible for making sure that the Trustee is acting appropriately. And trust Beneficiaries have their own legal rights, based on the interests left to them by the trust creator.
In any role of a trust, you can engage legal representation, whether to assert your rights or just to ensure that administration is on the right track. Nearly every problem has a solution, but the longer it goes unresolved, the more expensive and difficult the solution becomes. An experienced attorney can help trust administration begin correctly, and avoid probate litigation proceedings later on.
Creditors, Contests, and Questions for the Court
Did your parent incur substantial medical bills before they died? Does your spouse owe a large debt, but then became disabled and unable to work? Did someone owe you money and then pass away? Do you expect your family to fight over your own estate?
These questions, among many others, often plague families when a person becomes incapacitated or dies. Collections notices, foreclosure actions, and threats of litigation can be overwhelming and disruptive to the grieving process. Most people in this situation have misconceptions about what they must do, who they must pay, etc. Without an experienced adviser, the mistakes are likely and often very costly.
How can Opfer | Campbell | Beck P.C. help?
Whether for a minor or adult, guardian and conservator cases require a great deal of care, understanding, and knowledge of Colorado elder law. It is crucial that, if you find yourself with someone in this circumstance, they are protected from anyone that might cause them harm. Estate proceedings and trust administration have many requirements, and failure to meet them can result in lawsuits and sanctions. The attorneys at Opfer | Campbell | Beck P.C. have extensive experience in both estate planning and probate/elder law matters, and they will help you navigate these processes with compassion and zealous representation.