If you were pulled over and suspected of drunk driving, you would expect the officer to administer field sobriety tests, a PBT on the roadside and then at the jail administer a breathalyzer. However, that scenario has changed in the past week. Now, suspected drunk drivers can expect to be transported to a local hospital and have their blood drawn to determine their blood alcohol content.
Why is this happening?
On January 13, 2020, Michigan State Police placed its 203
breathalyzer machines out of service in light of questions about their reliability.
Michigan State Police hired Intoximeters, Inc. in 2018 to calibrate and maintain
the state’s breathalyzer machines. Recently, Michigan State Police has publicly
accused the company of fraud and pulled all of its breathalyzers out of
service.
What does this mean for the suspected drunk driver?
Now, anyone suspected of drunk driving can expect to be taken to the hospital and have their blood drawn before being transported to the jail. The results will not be instantaneous. Instead, the blood will have to be mailed to state police forensic lab to be tested. This will mean a longer wait before knowing if you were in fact driving while intoxicated and are being charged. Although the state police forensic lab has shifted some of its staff to prevent significant delays in testing. If you are currently facing charges and going through the criminal process, this could result in a delay or grounds to contest the blood alcohol content determined by a breathalyzer.
Under Michigan’s implied consent law, all licensed drivers have technically consented to submit to chemical testing during an impaired-driving arrest. This chemical test can be a breathalyzer, urine or blood test. It is the arresting agency that determines which test it will use and not the person suspected of drunk driving. Refusing to submit to the chemical test results in an automatic driver’s license suspension. If you have a Concealed Pistol License, you have also consented to submit to chemical testing.
What does it mean for those already convicted?
For those who have already been convicted, it could mean grounds
for appeal if the key evidence used to convict was the results of a
breathalyzer. It will mean contacting your attorney to find out if how you were
convicted could grant you a basis for an appeal.
If you are currently facing driving while intoxicated
charges and a breathalyzer was used, contact your attorney and tell them to
obtain records of the breathalyzer’s certification.
As children, we think our parents are invulnerable and do
not need assistance from us. The truth is that as our parents age, they may
need our assistance. This is especially true, if our parents did not plan ahead
for who will manage their financial affairs when they are no longer able to do
so. In Michigan, the one answer for
these individuals is a conservatorship.
What is a conservatorship?
In simple terms, a conservatorship is when the probate court
in the county where the person to be assisted resides appoints another
individual to manage the financial affairs. The appointed person is referred to
as a conservator. The person who needs the assistance is referred to as either
a ward, a protected person, or a legally incapacitated individual. A
conservator is different than a guardian. A conservator will manage the finances and
assets of the ward, while the guardian assists with the decisions involving medical
care, daily care, and where the ward will live. One person can fulfill both roles;
however, each position requires the court’s appointment. Because a conservatorship
involves handling another’s finances, there is the potential for abuse or acting
outside of the ward’s best interests. This is why all conservatorships are
supervised by the probate court and require annual reporting.
How is a conservator appointed?
Usually, a family member or other interested party (usually
an heir) will ask the probate court to be appointed as a conservator. Sometimes,
the person needing assistance can file their own petition with the court as
well. Under Michigan law, conservator can be appointed in the following circumstances:
The individual needing to be protected is unable
to manage their financial affairs due to a physical illness, a mental illness,
chronic use of drugs, disability, mental incompetency, or confinement; and
Money is necessary to finance the support, care
or welfare of the individual to be protected, requiring a conservatorship to do
so; or
The individual to be protected owns property that
would be wasted without proper competent management.
When a petition
to appoint a conservator is filed, all interested parties (family members and/or
heirs) will be notified. Each interested party has an opportunity to be heard
by the probate court and to present evidence supporting or opposing the
formation of the conservatorship or the appointment of a particular
conservator. If the court finds sufficient evidence to appoint a conservator
for the protection of the named individual, the court will issue an order appointing
a specific person.
What are the conservator’s
duties?
The
primary role of the conservator is to competently manage the assets of the protected
individual. The conservator will also protect the individual from financial
exploitation by creditors, salespeople, or family members. In doing so, the conservators
owe a fiduciary duty to the protected individual. This means that the conservator
must act in the best interests of the protected individual’s estate. In
addition, the conservator must keep accurate records of all income and records
and receipts of all expenses to support the annual accounting that must be provide
to the court each year.
What
to do if you receive a petition?
If
you are a family member and receive a petition to appoint a conservator, you
should consult with an attorney immediately. You may be entitled to the
appointment or have information on why another individual should not be
appointed. Professional conservators are often expensive to maintain and can
deplete the resources available for the protected individual’s care.
In addition, there
are other options available to you if your goal is to protect a family member
against being taken advantage of. An experienced estate planning attorney can
consider your circumstances, advise you of your options and recommend the best
option for your needs.
If you have
received a petition for the appointment of a conservator, call Michigan Gun Law
today for your free initial telephone consultation.
Over the last few months, we have been discussing what are
red flag laws, do they work, and how they intersect with Due Process. In the
final blog in this series, we will explore what has happened in Michigan with
red flag laws and what you can do.
The most recent bills (HB 4283-HB 4285 of 2019) in the House
of Representative were introduced by Representative Robert Wittenberg. This is
not Rep. Wittenberg’s first time introducing a red flag bill before the House
of Representatives. This is third time trying to pass a bill introducing red
flag laws to Michigan. His previous bills include HB 4942 of 2015 and HB 4706
of 2017. Each time he introduced his bill to the House of Representatives, it
has stalled in the Committee on Judiciary. His most recent bills HB 4283 – HB
4285 of 2019 were referred to the Committee on Judiciary on February 28, 2019
and no further action is recorded in the Michigan Legislature history.
In his bills, he is seeking to introduce an act to be known
s “extreme risk protection order act.” This is just another name for a red flag
law. HB 4283 of 2019 is the definition statute of the act that he proposes. HB
4284 of 2019 would amend 1927 PA 327, specifically amend section 2, 2b, and 5
known as MCL 28.422, MCL 28.422b, and MCL 28.425b. Finally, HB 4285 of 2019 would
add section 15e to the criminal laws of the state. The purpose of this bill is
to provide criminal penalties for making a false statement in a complaint for
an extreme risk protection order.
Rep. Wittenberg is not alone in his quest to bring a red
flag to Michigan. Similar bills were introduced into the Michigan Senate on two
separate occasions. The first occurred in 2018. This was Senate Bill 0937of
2018 and was introduced by Senator David Knezek. Like Rep. Wittenberg’s bills,
Senate Bill 0937 of 2018 never made it out of the Committee on Government
Operations. The next time a bill for a red flag law was introduced was on
February 28, 2019. This time Senate Bill 0156 of 2019 was introduced by Senator
Mallory McMorrow. Like the bills, Senate Bill 0156 of 2019 is stalled in the
Committee on Government Operations.
Because the attempts to pass legislation have not yet proved
successful, Michiganders should become apathetic toward such a bill making its
way to the Governor’s desk. If you are concerned about red flag law bills
passing through our legislature, then periodically search for bills relating to
the following terms, “civil procedure; injunctions; extreme risk protection
order act; enact.” When you see such a bill making it way into or out of
committee, contact your Representative and Senator and let your voice be heard.
While Michigan does not yet have a red flag law, we have
personal protection orders, also known as restraining orders. If you are served
with a personal protection order, do not toss it aside. You have a limited
amount of time to exercise your rights, which you should do. After being
served, contact an attorney that defends against personal protection orders
immediately.
In the past, we have examined the history of red flag laws,
the arguments both for and against the adoption of red flags laws, and the
studies that evaluated how effective the adoption of such laws has been in
those states. This week, we are addressing the intersection of due process
rights and red flag laws. This blog is not the first nor will it be last time
someone has considered the intersection of due process rights and red flag
laws. The NRA has evaluated proposed red flags laws in Rhode Island, Utah, and
Maryland and opposed those laws on the issue of due process.[1]
In order to help you evaluate whether any red flag law in
Michigan violates due process, an understanding of due process is needed.
First, there are two types of due process: substantive and procedural.
Substantive due process issues look at how the states exercise their power to
regulate certain activities, such as freedom of expression or the freedom of
association. Procedural due process issues require an analysis of the procedure
required by the Constitution when the states seek to deprive citizens of life,
liberty, or property.
In Boddie v Connecticut, 401 US 371, 379 (1971), the
United States Supreme Court ruled that due process requires “that an individual
be given an opportunity for a hearing before he is deprived of any significant
property interest.” In Mathews v Eldridge, 424 US 319, 333 (1976), the
Court recognized that it “has consistently held that some form of hearing is
required before an individual is finally deprived of a property interest.” The Mathews
Court stated that “the fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”
(quoting Armstrong v. Manzo, 380 U. S. 545, 552 (1965)). This rule
has limited exceptions that are triggered only by a true exigency.
In the history of the United States Supreme Court, few
circumstances have qualified as exigent ones.
In Bowles v Willingham, 321 US 503,521 (1944), the Court
permitted the government to unilaterally set rents in defense-area housing
accommodations during World War II. In N Am Cold Storage Co v City of
Chicago, 211 US 306, 320, the Court permitted the government to immediately
destroy tainted poultry to avoid exposing the public. In Barry v Barchi,
443 US 55, 65 (1979), the Court allowed the government to temporarily suspend a
horse trainer from further racing if there was evidence of doping. In Mackey
v Montrym, 443 US 1, 17-18 (1979), the Court said that the government can
temporarily suspend someone’s drivers license when there is strong evidence
that the person was drunk driving. The Court allowed these actions because any
delay would have allowed destructive or harmful behavior to continue.
With red flag laws already adopted by states across the
United States, the judge can issue an ex parte order that seizes the firearm if
there is an immediate risk of harm for a limited period of time (in most
states, this is fourteen (14) days).[2] At an ex parte hearing,
the judge only hears evidence from the petitioner. The subject of the petition
will not be able to prevent a defense until after the firearms have been a
seized and a final hearing is held.[3] David Kopel, research
director at the Independence Institute, said that he believed Vermont had “a
fair system, which requires ‘specific facts’ that show an ‘imminent and extreme
risk.’”[4] Kopel said, “When it comes
to seizing guns through a temporary order, the standards that a judge uses
should be high.”[5]
Pinellas County Sheriff Bob Gualtieri said that the standard is high and
requires “clear and convincing evidence.”[6] However, in some states
the burden of proof required is a preponderance of evidence, which is one of
the lowest burdens of proof in civil cases.[7]
In a hearing before the United States Senate Judiciary
Committee, David Kopel said, “Constitutional requirements of procedural due
process are at their height when an individual is deprived of a “fundamental”
enumerated right. The right to keep and bear arms is such a right. McDonald v.
City of Chicago, 561 U.S. 742, 778 (2010).”[8] Kopel went on to say that
“the courts have identified seven key elements in procedural due process:
notice; a neutral decision-maker; an opportunity to make an oral presentation;
the opportunity to present evidence; the opportunity to cross-examine witnesses
and respond to evidence; right to representation by counsel; and a decision
based on the record, and reasoning for the result.”[9] He further stated that “an
ex parte system deprives individuals of five of the seven elements of due
process: notice, opportunity make an oral presentation, opportunity to present
evidence, cross-examination and response to evidence, and the right to counsel.”[10] In response to a question
from Senator Ted Cruz (R-Texas), Kopel laid out what he believed should be the
minimum due process protections in red flag laws:
Ex Parte hearings only if petitioners prove it
to be an absolute necessity in the case of immediate danger;
Evidence should be “clear and convincing” at all
levels of hearings throughout the process;
Respondents to the petitions should have a legal
counsel, even if appointed by the court;
The right to bring forth witnesses to support
their case and cross-examine witnesses brought against them; and
The ability to seek justice for any false or
malicious testimony used to strip them of their right to bear arms.[11]
When it comes to evaluating whether any proposed red flag
law in Michigan meets the procedural due process, ask yourself does it meet the
seven key elements of procedural due process that David Kopel identified and
does it have the minimum due process protections that he provided in response
to Senator Ted Cruz’s question.
Over the last few weeks, I have been blogging about the
trend across the country to pass what is referred to as “red flag” laws. So
far, we have explored what they are, the names that are used to refer to them,
and both sides of the argument in support or opposed to red flag laws. Last
week, there was a typographical error in the blog. It said that “[p]roponents also
argue that red flag laws do little to get help for those in crisis.”
“Proponents” was the wrong word and the blog has been corrected to reflect that
it is opponents of red flag laws. This week, we will examine the studies of red
flags laws and their effectiveness.
Following the Parkland school shooting, President Trump
established the Federal Commission on School Safety. The President tasked the
Commission to report on policy recommendations to prevent future school
violence. That Commission compromised of U.S. Department of Education Secretary
Betsy DeVos, U.S. Department of Homeland Security Secretary Kirstjen M.
Nielsen, U.S. Department of Human and Health Services Secretary Alex M. Azar,
II, and U.S. Department of Justice, Acting Attorney General Matthew Whitacker.[1]
In their cover letter to the President, the Commission stated, “There is no
universal school safety plan that will work for every school across the
country. Such a prescriptive approach by the federal government would be
inappropriate, imprudent, and ineffective.”[2] In the Commission’s report to the President,
they discussed red flag laws.
The Commission stated that red flag laws are of recent
vintage with the oldest law on the books being less than twenty (20) years old.[3]
At the time of the report, over half of the states with laws on the books were
less than one year old.[4]
The Commission was not surprised that there was little research on the
effectiveness of red flag laws.[5]
In the report, the Commission discussed two studies that examined the
effectiveness of Connecticut’s and Indiana’s red flag laws on the prevention of
suicide.[6]
The Commission reported that these studies examined the impact on the
prevention of suicide and not the impact to violence against others.[7]
The Commission concluded that they “do not know whether [red flag laws] impact
gun violence more generally, and it appears no studies have yet evaluated the
more recent ERPO laws in other states>”[8]
One of the two studies referenced by the Federal Commission
on School Safety was conducted by Aaron J. Kivisto, Ph.D., and Peter Lee
Phalen, M.A.[9] In their study, Kivisto
and Phalen studied the effect of the red flag laws on suicide rates.[10]
At the conclusion of their study, they found that “Indiana’s firearm seizure
law was associated with a 7.5% reduction in firearm suicides in the ten years
following its enactment, an effect specific to suicides with firearms and
larger than that seen in any comparison state by chance alone.”[11]
They also discovered that the “enactment of Connecticut’s law was associated
with a 1.6% reduction in firearm suicides immediately after its passage.”[12]
The researchers also determined that following the shooting at Virginia Tech,
the reduction in firearm suicides increased to 13.7%, when enforcement of the
law substantially increased.[13]
The researchers learned that of the 762 individuals exposed to firearm seizures
between 1999 and 2013 in Connecticut, 21 committed suicide (six via firearm).[14]
The first study cited by the Federal Commission on School
Safety was authored by ten individuals from four different universities.[15]
This study focused solely on the impact of Connecticut’s law on reducing suicide.
The authors of this study stated that they were able to review the information
in “702 risk-warrant petitions was available for review.”[16]
The authors found that “suicidality or self-injury threat was listed as a
concern in sixty-one percent of cases, and risk of harm to others was a concern
in thirty-two percent of cases.”[17]
The authors of the study found that in “fifty-five percent of cases police were
sufficiently concerned about the mental health or intoxicated condition of the
subject that they transported the individual to a hospital emergency department
for evaluation.”[18]The authors stated in
their summary that “[u]sing the law to prohibit a suicidal person from
purchasing a gun is a good idea, but one that will not work—even with a
comprehensive background check system—as long as those who are inclined to harm
themselves do not fall into some category of persons prohibited from possessing
or purchasing firearms under federal or state law.”[19]
The effectiveness of red flag laws to prevent mass shootings is simply not known as there has been no studies into this type of prevention. The two studies that have studied the effectiveness of red flag laws on the prevention of suicide by firearm indicate that the impact of the laws is reducing suicide by firearm by less than 20%. The authors of the Connecticut study raise a question to ponder, “Will using the law to prohibit a suicidal (or homicidal) person from purchasing or possessing a gun work to prevent future death?” It may take years to understand the effectiveness of red flag laws on the prevention of mass shootings and suicide. The answer for now is that we just do not know if the passage of red flag laws will achieve the desired effect of those that propose such laws.
Take the time to read and study the report from the Federal
Commission on School Safety and the two studies that have been published.
Educated yourself fully on red flag laws as passed in other states, so you will
know what legislators are proposing in our state and if the public policy behind
the law is sound. Next week, we will
explore the due process of red flag laws.
Red flag laws seek to temporarily remove guns and prohibit
future purchases of gun for those individuals who have been identified as being
in crisis and presenting a significant risk of harming themselves or the
community at large. There are two opposing views to the passage of red flags
laws. This week, I will be examining the arguments in favor of and in
opposition of red flag laws.
APM Research Lab conducted a study of 1,000 American adults
from July 16 to 21, 2019. This was just two weeks prior to the mass shootings
in El Paso, Texas and Dayton, Ohio.[i]
The study found that over three-fourths of those surveyed supported
family-initiated red flag laws. For police-initiated red flag laws the support
dropped slightly to seventy (70%) percent.[ii]
The Brady Campaign to Prevent Gun Violence reports in their fact sheet on red
flag laws that two other studies conducted in 2015 and 2017 had similar results
from those polled.[iii] Senator Lindsey Graham
of South Carolina has publicly declared his support of passage of red flag laws
at the state level.[iv] Following the shootings
in El Paso, Texas and Dayton, Ohio, Senate Majority Leader Mitch McConnell from
Kentucky and Senator Richard Blumenthal of Connecticut have expressed their
support for red flag laws.[v]
The advocates of red flags laws promote the limited number
of people who can request the protective order from a court. The laws limit the
individuals who can request the order to law enforcement or family members.
However, some states have expanded the list of individuals to include romantic
partners or cohabitants.[vi]
Proponents of red flag laws state that a judge can order the
temporary removal of guns from an individual once evidence has been presented
that shows the individual is a risk of inflicting harm on himself or the public
at large. The judge can issue the order prior to a hearing on an ex parte basis,
but the individual is entitled to a hearing and the opportunity to present his
own evidence refuting the petition’s allegations.[vii]
This temporary removal of guns will save lives is the argument made.[viii]
Proponents of the laws also state that the current laws in effect require
evidence to be presented before the order can be issued and include punishments
for filing false petitions. The punishments may include fines or jail time.[ix]
Those who oppose red flag laws state that the laws violate
due process rights of the individual that the order is issued against.[x]
In an opinion piece in the Courier Journal, Thomas Massic and Jim Jordan wrote
that there is no evidence that the laws are reducing the frequency of mass
shootings in public places where the laws have already been adopted.[xi]
For law enforcement and the citizens, the service of the protection order can
be hazardous. This is why some sheriffs, such as the sheriff in Weld County,
Colorado are announcing that they will not order their deputies to participate
in the service of these orders and the seizure of guns from individuals.[xii]
Opponents also argue that red flag laws do little to get help for those in crisis, but instead irritate the person by taking the firearms and leaving them without mental health help.[xiii] Without treatment, someone who is determined to hurt himself or others will find another weapon to use. This was the case with David Krystyniak.[xiv] Police removed firearms from Mr. Krystyniak twice before he used a samurai sword to kill his mother.[xv] He was known to be mentally ill and had a long history of erratic behavior.[xvi] The removal of firearms, with the last removal being on July 14, 2019, did not prevent the death of his mother as he found something else.[xvii]
Next week, I will explore the studies of red flag laws on
how effective they are. In the meantime, do your own research on the issue of
red flag laws before you decide if red flag laws are a solution to mass
shootings.
[iv]
Stanglio, Doug. “Should guns be seized from those who pose threats? More states
saying yes to red flag laws.”
https://www.usatoday.com/story/news/nation/2019/05/01/red-flag-laws-temporarily-take-away-guns/35214910027.
At the beginning of this month, two shootings, El Paso,
Texas and Dayton, Ohio, along with President Trump’s call for states to pass
extreme risk protection order laws stirred up discussions among people I know
about the intent of these laws and the potential conflict with due process
rights. However, extreme risk protection orders, also known as “ERPO laws” or
red flag laws (in this series, I will refer to them as “red flag laws”), have
been gaining popularity among the states since the first law passed in 1999 in
Connecticut following a fatal shooting at the Connecticut Lottery headquarters
in Newington.[i] In my discussions, I have
learned that some individuals were not aware of the history of the extreme risk
protection order laws. This is the first in a series of blogs that is meant to
educate on the history of passage of these laws, the viewpoints from both
sides, outcomes relating to studies surrounding these laws, the impact on an
individual’s due process rights and what the courts in other states have said, and
what is happening in Michigan. This week, I am discussing the history of red
flag laws.
Red Flag Law History
The first thing to know about red flag laws is that as of
August 14, 2019 a total of 17 states and the District of Columbia have passed
extreme risk protection laws. These laws are meant to prevent a person in
crisis from harming themselves or others by temporarily removing guns and
prohibiting the purchase of guns. Each state has passed its own version of
these laws and refers to these laws by differing names. The laws have been
referred to as extreme risk protection orders, red flag laws, or gun violence
restraining orders. Some states restrict those who can request the protective
order to law enforcement officials only while other states have expanded the
group of people to include family members, dating partners, former spouses or
dating partners, to roommates.[ii]
About 21 other states have taken some steps toward adopting a red flag law.[iii]
The second thing to know about red flag laws is that most
states have enacted their version of this law following a mass shooting. It
started with Connecticut in 1999. Matt Beck, a employee at the Connecticut
Lottery killed four of his supervisors before killing himself with a 9mm Glock
pistol with a 19-round magazine.[iv]
Beck had a history of attempted suicide, failed to win a promotion, and had
filed a work-related grievance over a salary dispute.[v]
He was under a doctor’s care and on medications.[vi]
His father said that there was nothing unusual about his demeanor as he left
that morning.[vii]
Indiana was next to pass a red flag law in 2005. The state
passed the law after a fatal shooting.[viii]
Kenneth Anderson, a 33-year-old man, carried a semi-automatic rifle and two
handguns while he opened fire on homes and vehicles in an Indianapolis neighbor
after he killed his mother.[ix]
A police officer was shot and killed during the shootings.[x]
Five months, prior to the fatal shootings, police had put Anderson under
“immediate attention” at a hospital and seized weapons and ammunition from his
home.[xi]
California was next following the Isla Vista killings by
Elliott Rodger. Rodger was 22-years old.[xii]
He used his vehicle, guns and knives to kill seven people, himself and wounded
another 13 people.[xiii]
He ran down skateboarders and bikers, fired through shop windows, and killed
two women on a sorority house lawn.[xiv]
His body was found near three handguns and more than 400 rounds of ammunition.[xv] His was a planned attack that he publicized
with a video stating that “he had no choice but to exact revenge.”[xvi]
Even though family and doctor had very clear warnings about his risk to himself
or others, there was little anyone could do.[xvii]
Washington was the next to pass a red flag law in 2016[xviii].
Oregon followed in early 2018.[xix]
At that time, there were five states with red flags on their books.
After the shooting at Marjory Stoneman Douglas High School
in Parkland, Florida in February 2018, another eleven states passed red flag
laws.[xx]
Florida passed its law three weeks after
the shooting and started a wave of states to follow.[xxi]
This was a bipartisan movement after evidence showed that 19-year-old suspect
showed several signs that he would act violently in the months prior to the
shooting.[xxii] Family members alerted
police about his disturbing social media messages and that he expressed a
desire to kill.[xxiii] The FBI acknowledged
failing to act on a tip prior to the shooting that killed 17 people.[xxiv]
Red Flag Laws in Michigan? Are They on the Way?
Currently, a version of a red flag law has been introduced
in both the Michigan House of Representatives and the Michigan Senate. I will
further explore and detail what the six bills propose and what their status is
in upcoming blogs.
Even Republican Senator Lindsey Graham of South Carolina,
chairman of the Senate Judiciary Committee, is a supporter of red flag laws at
the local level.[xxv] He told “Face the
Nation” on April 28, 2019 that he “is pushing his committee for a national
grant program to ‘incentivize’ states to pass them.”[xxvi]
He believes such a law would have made a difference in the Parkland shooting.[xxvii]
The first step in deciding whether to support or oppose an extreme risk protection order is educate yourself on what they are, how and when they are passed, whether they have worked in other states, and what you can do to protect yourself from being a respondent to one. Follow this series of blogs to learn more about red flag laws, and then do more research on your own to form your independent opinion on red flag laws.
[xx]
Lee, Kurtis. “Here’s what you need to know about ‘red-flag’ laws, the latest
trend in gun control.”
https://www.latimes.com/world-nation/story/2019-08-14/nationwide-red-flag-gun-laws-have-increased-but-do-they-work
Everyone needs an estate plan. It does not matter if you
have minimal assets, no children, pets, or millions of dollars in assets.
Everyone needs to have a detailed plan for their future that others can refer
to when the individual can no longer plan. Estate planning is just not about
what should happen when you die, but what should happen when you are not able
to speak for yourself.
Estate planning is not just having a will or a trust. Estate
planning includes planning for medical emergencies when you cannot speak on
your behalf, planning for your last illness, planning for your financial
affairs when you are not capable of managing them, deciding who will care for
your children when you are not able to, and planning for what happens after you
pass away. Young adults heading off to
college should at a minimum have three estate planning documents: Patient
Advocate Designation, including a Living Will and HIPAA Authorization; Durable
Power of Attorney; and Last Will and Testament. What documents you need for
your estate plan will depend on your desired goals, your assets, and your
family situation. Estate plans are not a one size fits all. Your estate plan
should be tailored to you, your family, and your future goals.
There are times in your life that you should consider if
your estate plan will accomplish your goals. Those times include graduating
from high school (or turning eighteen years old), graduating from college,
getting married, the birth of a child, the youngest child turning age eighteen,
the birth of a grandchild, getting divorced, retiring, or moving to a new
state. These are major life events that should trigger at minimum pulling out
your current estate plan and reviewing it. When you finish reviewing the estate
plan, ask yourself, “Does this still accomplish my goals?” and “Have my goals
changed since I last reviewed these documents?” In your review, you should also
consider if the designated persons are still the right people for the roles you
have assigned.
Besides the major life events, an estate plan should be reviewed at least every two years. Life changes quickly and what worked two years ago may no longer be ideal for today. You should consult with your estate planning attorney at a minimum of every three years to discuss funding issues, to review your goals, to ensure that your documents will accomplish your goals, and to ensure that your financial institutions will not consider the estate planning documents stale. We have learned from our client’s situations that some banks and credit unions will not accept any Durable Power of Attorney that was signed more than five years ago. This can create a problem if your Durable Power of Attorney is one that only becomes effective upon your disability. We have assisted successor agents in overcoming this hurdle when the grantor of the power became disabled and was not able to sign a new document. This can be prevented during a review with your attorney and by checking with your bank or financial institution when you shortly after you draft the estate plan.
Start, or review, your estate plan with our office today! Call and have your fifteen minute free phone consultation with our client coordinator today!
We make plans all the time. We plan what to wear, what to
eat, where to go on dates or vacations, which neighborhoods to live in, or what
kind of car to drive. But less than half of Americans have taken the steps to
plan what will happen to their estate when they die. When LexisNexis conducted
a survey, less than half of the respondents said that they had a will, which is
the most basic estate planning document. Furthermore, less than one in four
said that they had a Living Will or document to direct what happens in when
they are ill or injured and cannot speak for themselves with doctors. Only one
in five of the respondents said that they had a trust, which is a comprehensive
estate plan.
The reasons for not having an estate plan can vary. Some
reasons have been stated to individuals do not feel that they have sufficient
assets to do the estate planning. Others have felt as if they were not old
enough. Ten percent of the respondents have said that they do not want to think
about it. One or all of these reasons may sound like how you view estate
planning.
When a person dies without an estate plan, a will or trust,
this is known as dying intestate. When this happens, as it did with Aretha
Franklin and Prince, the state’s intestacy laws dictate how the estate will be
passed. However, many individuals do not understand that the state’s intestacy
laws are the same for everyone, are inflexible, or causes issues for blended
families or families with special need individuals. There is little your loved
ones can do when this happens. Your loved ones will have to wait why the
probate court decides what will happen to your estate according to the
intestacy laws. When singer and songwriter Prince died without a will, 45
people came forwarded and claimed that they had an interest in his estate. The
court will have decided who in addition to his six siblings is entitled to
receive anything from his estate. This will cost the estate time and money in
reaching this decision.
Taking the time to plan for what will happen to your assets,
who they will go to and what steps will be taken to care for your family when
you die can speed up the process and allow for the flexibility that you and
your family need. With a will or trust, you can provide unequal shares to your
children, disinherit a child, donate to a charity, leave a share to
stepchildren, or provide for a long-time friend or caregiver. If you have a
special needs family member, you can create a special needs trust upon your
death to assist in providing for the care of that family member without
eliminating any government assistance that may be received.
When Aretha Franklin died, she left four sons and one of
them had special needs. Her $80 Million estate cannot be used to assist in
providing for that child’s care until the probate court has determined what her
assets are and how they will be distributed. There is nothing anyone can do to
speed up the process for the welfare and needs of her special needs son. He
will just have to wait.
If you want to avoid the turmoil and costs of probate that Prince and Aretha Franklin’s families are enduring, then you need an estate plan. Estate planning is varied as the flavors of ice cream. Plan to today to consult with an attorney about what options are available for you. We are ready to take that first step with you. Schedule your free 15-minute telephone consultation with our Client Coordinator here.
June is full of events that signify the change of life. One of those events is high school graduation. It is a milestone for high school seniors as they transition from following their parents’ rules to illusion of freedom that accompanies entering adulthood. They are celebrating this milestone with graduation parties. They look forward to cards full of money and gifts to adorn their college dorm rooms or first apartments. But have you thought of giving the gift of lifelong peace?
Instead of giving cash or much needed dorm supplies, consider purchasing a gift certificate for a basic estate plan. Every college student or young adult should have these three basic estate planning documents: a durable power of attorney for finances, a patient advocate designation with HIPAA waiver, and a last will and testament.
A durable power of attorney for finances will allow the young adult to designate a financially responsible adult to act on their behalf when they are unable to do so. This power designation will allow the agent to access bank accounts; deal with creditors; pay rent, utilities and credit cards; and manage loans, including student loans. The young adult will have a say before the need arises to appoint who they trust to manage their financial affairs when they cannot.
A patient advocate designation with HIPAA waiver allows the young adult to designate a person to advocate on their behalf regarding healthcare decisions. This is a role parents fulfilled throughout childhood but no longer can legally do so once the age of eighteen is attained. With a properly prepared patient advocate designation, the young person can name a person or persons that they trust to fulfill this role when they are incapable of speaking on their behalf. The young person can provide directions on what actions to take if an injury or illness will likely result in death. The designated person will also be granted access to medical records, so informed decision regarding healthcare can be made on behalf of the young adult.
A last will and testament will allow the young adult to direct the distribution of their estate upon their death. Many young adults do not think of what will happen when they pass away. Death is not within their immediate goals. But a last will and testament give the young adult a voice in what will happen to his personal belongings upon death.
If you have a young adult preparing to head off to college or move into their first apartment on their own, give them the gift of peace. Purchase a gift certificate for an estate plan with an attorney who understands what a young person needs at the beginning of their life adventures.
