KalishLawTexas' legal blog The Woodlands

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3 Nov 2011

When your Spouse, Partner or Loved One is Seriously ill
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Unfortunately, a serious illness makes us think about unpleasant things. “What will happen if my spouse or loved one dies?”, “Should I ask him/her about her final wishes now?”, “How will I handle the business side of things if s/he is unable to do so, or if s/he doesn’t recover?”

Often the person who is “well” feels guilty for these thoughts and may try to push them away. But they come creeping back because these are very real issues.

If you are caring for a loved one who is seriously ill, you are probably exhausted. You are trying to visit and take care of your loved one and may be working full-time, taking care of a home, and/or business and still trying to remain “upbeat”. You may feel guilty for thinking about the “practical side” of things and may hesitate to bring it up or seek help.

Be assured that you are not alone. These feelings and worries are normal.

Here are some ways to help you gain peace of mind.
1. Gather personal information: If you have access to your loved one's will and health care directives, take a look at them (especially the health care directive, and especially if you are named as a health care agent). Since illness and death are unpleasant subjects, no one likes to talk about them and it is not uncommon for people to be unsure of whether or not their spouse/partner has these documents, or to forget where they are located.
2. Gather legal facts: Don’t hesitate to contact an attorney to ask about the laws that may relate to your situation. If your loved one is likely to be ill for quite a while or is unlikely to recover, it may relieve your stress to have knowledge about what to expect legally.
3. If you are in a “non-traditional” or complicated situation and are unsure of your legal/financial status, you should ask for a legal consultation or do some research on your own. Some examples of these situations are: step-family situations and long-term partners who have chosen not to be legally married or who are unable to be legally married. Another complicated situation may arise when you have to run a business for the person who is ill but are not sure that you have the legal authority to do so.
Gaining additional knowledge can help you because at least you will know what you are dealing with and how to face it.

Kalish Law Office- The Woodlands, Texas: Probate, Family and Business Law. Since 1984. Passionate, Professional and Personal. We Make the Difference.

281-363-3700
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23 May 2011

Why You Need a Guardianship for Your Child in Your Will
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If you have (a) minor child(ren), you need to make provisions for their care in your Will.

Guardianship provisions specify who you would like to raise your children in the event that something happens to you.

I cannot emphasize this strongly enough, if you have a minor child do NOT put off this important step.
Here are some common family situations, and how a guardianship can help deal with them:
1. The parents of the child are married to each other. In the event that you and your spouse are the parents of the child, the two of you will want to talk to each other and agree on who you would like to raise the children if something happens to the two of you. You should also have an alternate person (or married couple). Flexibility is important, as most people don’t update their wills yearly and you never know what someone’s the location, work situation or health situation will be in the future.
2. The parents of the child are divorced, or have never been married and both are involved in the child’s life. Your last will and testament will most likely specify that your ex will raise the child if you are not around, and then will name alternates.
3. The parents of the child are not together and the child’s other parent is absent, irresponsible, or dangerous for the child to be around. It is crucial that you make your wishes known and designate a guardian for your child. Your properly drafted and executed will gives the named guardian a leg to stand on when asking a judge to grant the guardianship of your child. (Which may or may not be granted, depending on the circumstances and evidence). However, if you say or do nothing, your child could end up in a sad situation if you are not around.
4. Too many relatives want to raise your child. A child who is well loved by many family members may end up feeling torn and feeling responsible for hurting the feelings of loved ones. Your clear, unambiguous designation of a guardian will prevent this.
5. Your “logical” choices live in another state, or another country. You may not want to even consider that your child could lose his/her friends, pets, school and neighborhood right after losing a parent. Your written instructions in your will may help prevent that.
6. A properly executed will gives guidance to law enforcement and child protective services as to where a child should be placed immediately in case of emergency.
In many cases, the best guardian(s) for the child is a wonderful and responsible parent and friend, but not so great with financial matters. You can designate a separate person(s), bank or firm to be guardian of your child’s funds.

Having a valid, executed Texas will is one of the most important acts of love and concern that you can do for the benefit of your child.
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17 May 2011

Where Should You Keep your Original Will and Powers of Attorney?
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The Will: If you have a signed original will, you will need to keep it in a safe place. The first impulse that most people have is to put it in a safe deposit box. This does preserve the document, however it may create a problem if there is no one who is authorized to access the safe deposit box. If you choose this option, it is best to name someone (in addition to your spouse) as a joint holder. Having someone in addition to your spouse ensures that there will be a trusted person of your choosing who can get to the contents quickly in case something happens to you and your spouse together. In the event that you do not have a joint holder, a court order will allow the will to be retrieved by a bank official, but this additional step will add unnecessary expense and delay. Remember, the purpose of drafting a will and powers of attorney in the first place are to allow YOU to be the one who is directing the course of events and to SIMPLIFY the process.

If you choose to keep your will at home, make sure that it is protected from fire or flood. A safe is a logical choice for many people, but make sure that the safe is well hidden and kept away from high heat (not in a hot attic) and the document is protected from flooding (not on the floor in the closet in the laundry room). It is a good idea for your executor and alternate executor to know the location of your will.

Filing the will in the county is not necessary, although some people still feel better doing so. If you choose this option you should make sure of two things: 1) the will should not contain full account numbers or private information that could be used in identity theft; and 2) if you update your will you need to file the updated will (or notice that you have updated the will) in order to avoid confusion later on.

Some attorneys do keep originals in their offices for their clients, while others do not. If a will is kept at an attorney’s office it can be difficult to retrieve if the attorney dies, moves, merges with another firm or retires. There also may be a risk of fire, flood or theft.

Don’t keep old, invalid wills around to confuse the situation. You can also notify a previous attorney who has drafted a will for you that you are requesting that your old file and copies of the (now) invalid will be destroyed.

Whether or not to give a copy of your will to your executor, trustee, alternates, and even your beneficiaries is an individual decision.

The Power of Attorney for day-to-day business; Durable Power of Attorney for Health Care

These documents must also be kept safe and dry, and out of harm’s way. However, it is even more crucial that they be found exactly when needed, with no delay. If you are injured and unable to speak for yourself, you want the “agent” you have named to be on the job immediately, coordinating your health care options and possibly taking care of financial concerns. For this reason, be sure that the person that you have named as your agent knows exactly where to find the originals of these documents. It is also a good idea for them to have a copy, because copies may be accepted in an emergency situation.

Kalish Law Office is located in The Woodlands Texas and assists clients in the areas of estate planning and probate. 281-363-3700 Since 1984.
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27 Jan 2011

Basic Facts About Adult Adoption in Texas
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Adoption of an adult can be a fairly straightforward process.   The adoptee’s biological parents do not need to be notified of the adoption and are not entitled to have a voice in the proceedings.

There are many reasons to proceed with a formal adoption, even after the “child” reaches adulthood. The most common situation is one in which a stepparent has wanted to adopt the child but has not been able to get the approval of the biological parent. At the time the stepchild turns 18, the papers for stepparent adoption can be filed without notice to the biological parent.

Waiting until a child turns 18 for adoption works quite well in cases where the biological parent has a lifestyle that is unhealthy for the child.   When a biological parent is unstable or violent, it is often unadvisable to contact the biological parent because it may encourage him/her to try to reenter the child’s life, bringing the chaos and danger along for the ride. Waiting a few extra years can turn a nail-biting situation into a positive and happy one, and decrease the risk of drama or danger.

Some adult adoptees may be well beyond their 18^th birthday at the time of the adoption. Some of these situations involve stepfamilies, others involve “just like family” groups who want to make their relationship a formal and legal one.   These adoptions are done for emotional reasons, and the reward is well worth it.

Adoption creates the parent-child relationship under the law. As a practical matter, this affects the parties’ abilities to inherit to and from each other. It also affects next-of-kin issues in health care decision making.   Of course, there are other ways to accomplish inheritance goals and grant powers of attorney through proper estate planning but adult adoption will accomplish some of these goals plus satisfy the emotional need for people to be legally connected forever.

A name change may or may not be part of an adult adoption, but if it is desired, it can be accomplished at the same time.

An adult adoption will not be granted by a judge if it appears that it is being sought to defraud creditors or avoid responsibilities under the law. It may not be granted if the judge believes that someone is being taken advantage of (the judge will look closely at cases in which one of the parties is or may be disabled, elderly, or under duress).   An adult adoption will not grant benefits under U.S. immigration law.

In order to complete the adoption, a petition will need to be filed in family court and there will be a hearing.

If you considering adopting an adult or you are an adult who is thinking of consenting to being adopted, you should carefully consider how every aspect of your life will be affected, how the family will be affected, and be certain that you understand all of the legalities and steps involved in the process.

The Kalish Law Office has been helping families for over 26 years with adult adoptions, child adoptions, family law and estate planning.   www.kalishlawtexas.com 281-363-3700
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