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Part I picOftentimes, most have heard of and have a basic understanding of a guardianship (whether for a minor child or for an incapacitated adult). A guardianship allows for another to be appointed as guardian over the person of an incapacitated person (the ward). In this role, a guardian is to care for, monitor and speak on behalf of the ward’s body and physical actions.

Another type of legal proceeding that can be put in place is a conservatorship. A conservatorship is needed when an adult individual is impaired to the extent of lacking sufficient understanding or capacity to make or communicate responsible personal decisions, and who has demonstrated deficits with managing property and business affairs. This type of legal action is necessary when it is clear that the individual has property that will be wasted or dissipated unless management is provided. In sum, a conservator is appointed by a court to make financial decisions for a protected person.

Establishing a Conservatorship

When it becomes clear that a person cannot manage his or her own financial decisions, then a petition for a conservatorship can be filed with the local court. The following people can petition the court:

  • the person to be protected;
  • an individual interested in the estate, affairs, or welfare of the person to be protected; or
  • a person who would be adversely affected by lack of effective management of the property and business affairs of the person to be protected.

The petition should provide a brief description of the nature and extent of the person to be protected’s alleged impairment and how that impairment is impacting his or her financial decisions. Additionally, the petition should provide a general statement of the type and value of property in the person to be protected’s estate and a reason why a conservatorship is in the best interest of the person to be protected.

Who Can Be Conservator

To become a conservator of a protected person, a court generally requires a background study of the proposed conservator. This study looks into any prior criminal history of the proposed conservator and completes a thorough search of state licensing agencies to determine whether the proposed conservator ever had a license conditioned, suspended, revoked or canceled. Furthermore, the court will consider the following proposed conservators in order of priority:

  1. a conservator, guardian of the estate, or other like fiduciary appointed or recognized by an appropriate court of any other jurisdiction in which the person to be protected resides;
  2. a person nominated as conservator by the person to be protected, including the respondent’s most recent nomination made in a durable power of attorney;Power of Attorney - iStock
  3. an agent appointed by the respondent to manage the person to be protected’s property under a durable power of attorney;
  4. the spouse of the person to be protected;
  5. an adult child of the person to be protected;
  6. a parent of the person to be protected;
  7. an adult with whom the person to be protected has resided for more than six months before the filing of the petition;
  8. an adult who is related to the person to be protected by blood, adoption, or marriage; and
  9. any other adult or a professional conservator.

A hearing will be held to determine whether a conservator is necessary. The person to be protected does have a right to have counsel. However, the person to be protected can be excused from attending the hearing, with the court’s permission. After the hearing and upon the court’s order, the court will issue letters of conservatorship upon the conservator’s filing of an acceptance of office and the posting of any required bond by the conservator.

Next week, Part II of Conservatorship Basics will cover a conservator’s duties and discuss when and how a conservatorship is terminated.

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“Protecting Your Afterlife in the Digital Realm”

Once again the discussion about planning for your digital assets received national attention on CBS Sunday Morning.  The segment features various companies* that are helping individuals protect their digital assets and leave a digital legacy, such as Cirrus Legacy, If I Die, and LifeNaut. Additionally, it shares some of the options available to individuals to manage their social media accounts after they pass away, such as Facebook and Google. To watch the full report, click here.

Mother & Daughter on Laptop - iStock

 

 

*Featuring these companies on Epilawg does not constitute an endorsement of the companies or their services.

 

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house - iStockWe’ve said before that Minnesota is not a favorable state in which to die because of the state’s estate tax laws. Some believe that the same is true for other tax reasons as well. While Minnesota does offer a lot to its residents, which attracts them to make Minnesota their home, there are people who are opting to move out of the state and change his or her residency.

A lot of people think they can just change their driver’s license to another state and/or their mailing address to establish residency elsewhere. However, there are a lot of steps to take to effectively make the change. The MN Department of Revenue follows a list of criteria to determine whether someone has established permanent residency other than in Minnesota. The MN Department of Revenue evaluates the following factors1:

  1. Homestead Status
  2. The location of your home
  3. The address where mail is received
  4. Present status of former living quarters (is it sold, rented, etc.?)
  5. Status of insurance and information provided to the insurance company about a person’s residency
  6. The amount of time you spend in Minnesota
  7. The location of your bank accounts
  8. Where you qualify for unemployment insurance
  9. The state where you filed your previous resident tax returns
  10. The state where you earn your wages
  11. Where you are registered to vote
  12. Which state issued your driver’s license
  13. Where your vehicles are registered
  14. Where you keep your vehicles
  15. Where you maintain professional licenses
  16. The location of your fraternal, social or athletic memberships
  17. Where you maintain union memberships
  18. The location of your place of worship
  19. Where you qualify for in-state tuition
  20. Where your children or spouse attend school
  21. Whether you can be claimed as a dependent on another person’s federal income tax return and that person’s state of residence
  22. Where your spouse or dependents reside

Additionally, if you are a resident of a state other than MN, you may still be taxed as a MN resident if you spend at least 183 days in Minnesota. In calculating the 183 days, any portion of a day that is spent in Minnesota (e.g. 1-hour) will count as spending the entire day in Minnesota. So even if you have met most of the factors listed above, if you spend at least 183 days in MN you might be considered a full-year Minnesota resident.

If you have changed your residency from Minnesota to another state, or wish to do so in the future, it is advisable to consult with the proper professional advisor to confirm that you have taken, or will take, the necessary steps to effectively establish your permanent residency elsewhere.

1 Minnesota Department of Revenue Residency Fact Sheet

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Death with Dignity

by Kim Prchal October 15, 2014 Guest Articles

Brittany Maynard, an Oregon resident, selected the date November 1, 2014 as the day she will end her life. Brittany is 29 years old, and was recently diagnosed with terminal brain cancer. She is plagued […]

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5 Lessons from Kindergarten to Ease Estate Administrations

by Jennifer Santini October 7, 2014 Probate

Unfortunately no matter how close a family might seem, it always has the potential to endure disputes between members either during everyone’s lifetimes or after someone has passed away. The fights can get ugly and […]

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Cyber Attacks: It’s no longer “if” it will happen, but “when” it will happen

by Geoff Engelhart September 29, 2014 Business

The vast majority of us are not running international, Fortune 500 operations. We are leading, or working with, small to mid-sized businesses. With that comes the false sense of security that cyber thieves aren’t targeting […]

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Cabin LLCs: The Basics

by Jayne Sykora September 25, 2014 Business

For many, cabins provide an opportunity to get away from it all, to spend time with family and friends (maybe beside a body of water) and decompress from daily life. Unfortunately, cabins can also cause […]

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Have you reported your offshore funds?

by Jennifer Santini September 17, 2014 Investments & Insurance

If you are a U.S. citizen, resident alien, or certain nonresident alien, you are required to report any foreign financial assets that meet the reporting threshold to the IRS. There are different filing requirements and […]

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What are a surviving spouse’s debt obligations?

by Jamie Held September 11, 2014 Probate

Awhile back, an article in the Star Tribune discussed the egregious practices used by some credit card companies and banks to collect debts owed by deceased persons, often targeting surviving family members who may or […]

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Dividing Up Your Estate at Your Death

by Jayne Sykora September 9, 2014 Estate Planning 101

For some, as they prepare their Wills, it is a pretty clear cut decision on who will receive what and how much. For example, most married couples with children will first leave everything to each […]

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After Hours with Diana Ringuette

by Jayne Sykora September 3, 2014 After Hours

Name: Diana (Marianetti) Ringuette Employer: Maslon Edelman Borman & Brand, LLP Position: Attorney Location: Minneapolis Education: Hamline University School of Law (J.D., cum laude), Macalester College (B.A.) How long have you been practicing? I’ve been […]

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