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Avoiding the Terri Schaivo Case – The Oklahoma Advance Directive

???????????????????????????????????????????????One of the most prominent cases of Living Wills or Advance Directives was the Terri Schaivo case in the early 2000s. It is prominent for Living Wills, in that Terri Schaivo did not have one, and her situation caused a legal battle that lasted years and costed thousands of dollars for her family.

In this case, there was a emotional and nationally-known legal battle in Florida over whether a woman, Terri Schaivo, would be kept alive through treatment of artificial food and water, or would pass away from the disuse of the treatment.  If you remember, her husband, who was still legally married to her but estranged from her family, wanted her to pass away, but her family wanted her to remain alive through the artificial means.  Since Terri Schaivo did not have a Living Will that told her family and husband what her wishes were, her family and spouse went through ten years of litigation, one-hundred thousand ($100,000) of dollars in legal fees, and endless pain and frustration for everyone involved.  A Florida court ultimately decided Ms. Schaivo should be allowed to pass away.

Terri Schaivo and her family could have avoided the entire situation if she had a Living Will or Advance Directive in place. Our attorney highly recommends this document since it takes the heart-breaking and agonizing decision away from your family members, and allows you to get your end-of-life wishes. In Oklahoma, there are three situations that the state allows you  to make your end-of-life wishes known. See our previous post about those specific situations here. This document is inexpensive, easy to execute, and could save you and your family money, emotional stress, and it grants you all peace of mind.

If you already have a Living Will in place, see if you need to update it by reading a previous post here.

Call the office of The Skillern Law Firm, PLLC today to schedule a meeting to discuss this document as well as other your other estate planning needs today!

How to Choose a Guardian for Your Minor Child(ren)

If you have children who are minors, it is very important to 1) get a will and 2) choose a guardian to take care of them should you pass away before they are the age of majority. This can be a very, very difficult choice, especially if the father and mother do not agree on a guardian. It is a common estate planning problem, since usually both grandparents volunteer, or the child has two favorite aunts, etc.

However, making sure that your child is taken care of if an unfortunate accident should happen to both parents is very important. If the parents do not stipulate who they nominate as guardian in a will, the children will be chosen a guardian through a court process, which takes months, is expensive, and puts a great emotional toll on the children after their parents’ death.

There are some important factors to think about when choosing your child(ren)’s guardian. From parenting style to finding a stable living condition, as well as the existing relationship between the children and their nominated guardian, here are countless issues to contemplate before you make the final decision.

What follows is a list of only some of the important questions parents may want to ask themselves as they consider their options for guardian of their minor children:

1. Where is your potential guardian located? Moving, especially after a traumatic event like a parents’ death, can be hard for minors. Does your potential guardian live in the same city or same State?Will your child be able to stay in a familiar environment during the emotional transition, or will he or she have to move to another city or state? What part of town does the potential guardian live? Is their house located around good schools and safe neighborhoods?

2. How close is the child(ren) and the potential guardian? If the minor child and the potential guardian have an existing, close relationship, it will make the transition much easier for the child.  There will already be a relationship of trust, comfort, and the guardian will already know the likes and dislikes of the minor child. If you end up choosing  a family member or sibling that lives far away, you should try to establish a familiar relationship with the child and their potential guardian in case something happens to you.

3. Is your potential guardian physically, emotionally, and financially prepared to take care of your child(ren)? While nominating grandparents seems like a great idea, since usually there is already a close bond and a relationship, an aging grandparent may not be physically  or emotionally fit to take care of your young child or your moody teenager. Similarly, a loved aunt, who has many student loans and lives in one-bedroom apartment, may not be financially fit, or have the time, to provide for the child(ren).

4. If your minor children have special needs, does you potential guardian have the knowledge or the skill to handle your child correctly?  A special needs child is a hard situation that can take the parents years to develop important skills that they need to have to correctly care for the child. When you are looking at potential guardians, be aware of their skills with special needs children, or encourage them to gain knowledge and develop skills in case they are ever needed.

5. Make sure to tell your potential guardian, and discuss it with them beforehand. It is very important to have a conversation with your potential guardian before you nominate them in you will. You can gauge how comfortable they are with the idea, and see if there is any reluctance before you nominate them for such an important task. Make sure you tell them of your parenting preferences, important features you want in your children’s care (religious, education), and tell them of your hopes for your children. Also, make sure your potential guardian knows that he/she can say no if they are unable to take on the responsibility, and make sure that you  have several backup nominations in case your first choice declines.

If you have minor children, it is very important that you nominate a guardian in a will. The task of nominating a guardian is not an easy one, and there may be disagreements between the two parents, but it is an important task that must be done. The minute you have children, you should be thinking of their futures and their safety, and that includes a situation if you and your spouse are no longer able to care for them. It will also give you a peace of mind, knowing that your children will be in good hands, and that the court will have little to no say in who will take care of your children.

If you would like to know more about creating a will and nominating a guardian, please call the offices of the Skillern Law firm today!

Your life is not static, so why is your estate plan?

It is important to periodically review your will and estate plan. Life changes often require that you reassess your estate plan.

Children

Most parents are concerned about how their children will be cared for in the event that one or both parents suffer an accident or are incapacitated. It is important to name a guardian for your minor children in your will. Also, parents should consider a trust if they wish to stagger financial inheritance distributions for their children, instead of having the kids receive the whole of the estate at the age of majority.

Divorce

In Oklahoma, a divorce makes any trust that you had with a former spouse void. You should also consider any power of attorney documents or health power of attorney documents so that the contents reflect your current intent.

Remarriage

You may consider signing a ante-nuptial agreement in the event of a remarriage so as to legally separate your estates during marriage. A trust may be helpful in addressing any inheritance issues to children that a second marriage can create.

Middle Age

As people age, their assets tend to increase. Make sure that your money is working for you by talking to a financial planner. In addition, you should make sure that any assets that you acquire are included in any will or trust that you have already created.

Death of Spouse

When a spouse dies, you probably will need to get new health care and financial power of attorney documents.

 

The offices of Skillern Law can assist you in making changes to any and all of your estate planning needs. Call our office today!

Living, revocable, and irrevocable. Let’s talk trusts.

Today on the Tulsa Estate Planning Blog, we’re going to explain the difference between a living trust, a revocable trust, and an irrevocable trust. Specifically, what are the advantages and disadvantages  of the types of trusts. So let’s get started.

A living trust and a revocable trust are usually, if not always, the same thing.  Both are trusts that are set up to hold assets during the life of the settlor or grantor (the person who created the trust) for the benefit of that person. It is called a “living” trust because it is established during the lifetime of the settlor. It is also called “revocable” because the settlor can revoke the trust at any time during his/her lifetime. The purpose of the revocable, living trust is to avoid probate of the settlor’s assets after he or she passes away. The estate will avoid probate if the trust is written well and the settlor does not do anything irresponsible after the trust is created (like forgetting to transfer deeds into the trust name). After the settlor passes away, however, the trust will become irrevocable in that it cannot change. The “successor trustee,” or the person who was named to take over the trust’s management, shall distribute the property as described in the trust. Sometimes a trustee is a bank or individual who is paid for their services, but often it can be family and friends who will do it without a fee. This is one reason why trusts are less expensive than probate. The major advantage is that a revocable trust will avoid probate, and it is flexible in that the trust can be amended and changed.

An irrevocable trust is a trust that cannot be amended, changed, or revoked once it is established. Irrevocable trusts are normally formed by a person or family who wants to give away assets to another person, subject to certain terms that they do not want to be changed. Once the settlor puts the assets into the trust corpus, the settlor no longer owns or has access to those assets. There are many practical advantages to an irrevocable trust. There are tax advantages as well as creditor advantages. Creditors cannot gain access to the funds in the irrevocable trust since it is no longer in the settlor’s estate. However, the disadvantages may outweigh the advantages for many people. The trust cannot be amended or changed without going to court, and the settlor cannot get the gift back, ever.

Skillern Law Firm, PLLC can create both types of trust for your estate planning needs. Please contact us today! If you are interested in creating a will instead of a trust, please read our last post – The Difference Between a Will and a Trust.

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