Centreville, DE | Hockessin, DE | Kennett Square, PA | West Chester, PA
724 Yorklyn Rd #100
Hockessin, DE 19707
302-239-3700
Daniel T. Crossland
Guardianships
The attorneys in the Estate and Trust Litigation Department at MacElree Harvey also handle Guardianship matters in Pennsylvania, Delaware and New Jersey before the Pennsylvania Orphans’ Court Divisions of the Court of Common Pleas, the Delaware Chancery Court and the New Jersey Superior Court, Chancery Division. Guardianships entail both matters involving children, and matters involving incapacitated persons.
Matters involving Guardianships for children usually entail a close relative, sibling or friend consenting to being the guardian for a child for various reasons. Typically, it is because the mother and father are not available, either temporarily or permanently. A Guardianship allows the relative or friend to register the child in their school district, obtain Federal and State aid and provide a stable home for the child. The procedure is not too difficult, but it does involve the giving of notice to all next-of-kin. Usually there is a Hearing and the Court will award Guardianship unless it is convinced that it would not be in the best interests of the child to do so.
Guardianships for adult incapacitated persons is a much more complex area of the law. The hearings themselves involve two basic areas: the finding of incapacity and the appointment of a Guardian. In order for the person to be found incapacitated, there is need for expert testimony, usually a doctor, psychologist or professional of comparable education and expertise. The testimony of the expert is either entered through a witness deposition, or by live testimony. The second, and often more difficult, problem is that of appointing a Guardian of the Person and a Guardian of the Estate. The Guardian of the Person handles all of the alleged incapacitated person’s personal care and health issues. The Guardian of the Estate, on the other hand, handles all of the financial affairs of the alleged incapacitated person.
Filing a Petition for Guardianship has often been used in situations where a Power of Attorney is abusing his or her obligations and, sometimes, is mishandling the funds for their own personal gain. The Guardianship proceeding puts the Court in the middle of these disputes and, if successful, the Petitioner for the Guardianship can gain control of the assets, with the Court overseeing the handling of the assets and the care. Guardians, once appointed, must file an Inventory and must file an Annual Report. Those reports are audited by the Court system, with a considerable amount of diligence.
Members of our Estate and Trust Litigation Group have backgrounds in various disciplines, including psychology, law and accounting. Many of our members have been named as Super Lawyers in Philadelphia Magazine and Top Lawyers in Main Line Today. We understand the sensitivity of the situation of a loved one in need of care and guidance.
Finally, the Orphans’ Court of Chester County, Pennsylvania has a Mediation Program. This has been an effective tool to avoid excess legal costs by having the family meet and resolve their issues, resulting in a stipulated agreement as formally entered into as an Order of the Court for enforcement and oversight. John F. McKenna, our Chairman of the Estate and Trust Litigation Department is a Court-Approved Guardian.
If you would like to schedule a consultation, please call the firm at 610.436.0100 or submit the contact request form.
Elder Law
Elder law focuses on the needs of families and individuals as they age. These needs can include assistance in arranging at-home care, placement in a long-term care community such as an assisted living facility (or personal care home) or a skilled nursing home, representation in a guardianship, and guidance through the complicated maze of Medicare, Medicaid, and Veterans benefits.
Medicaid Planning
Medicaid planning is the assistance provided to a potential Medicaid applicant in advance of, and in preparation for, their application for Medicaid. Generally Medicaid planning becomes an issue for seniors when there is a need for long-term or nursing home care. Nursing homes are extremely expensive, with the average cost of a nursing home in Pennsylvania being over $11,000 per month, and in Delaware over $12,000 per month. Many seniors do not have the income and/or resources necessary to cover these high nursing home costs, especially when there is a healthy spouse still living at home. Seniors therefore will generally rely on their lifetime of accumulated assets to cover the high nursing home costs. The nursing home’s expensive costs can understandably exhaust a couple or individual’s assets rather quickly.
Medicaid planning affords a Medicaid Applicant the opportunity to protect their lifetime of hard-earned resources. Medicaid planning encompasses a complex, and time intensive process involving identification and collection of asset documentation, and strategic protection of assets which in many cases will be a complete re-structure of the applicant’s financial assets.
In many instances a Medicaid applicant will require the legal and financial expertise of an attorney who focuses in the area of Elder Law and Medicaid planning. Families will engage an Elder Law attorney in order to ensure the best possibility of acceptance into the Medicaid program.
Veterans Pension Benefits
We believe that all veterans of the United States Military deserve an advocate. We assist those war time veterans with medical and financial need in obtaining benefits to which they are entitled by virtue of their sacrifice and service.
In order to pursue VA benefits, an attorney must be accredited to practice before the Veterans Administration. Our firm’s VA accredited attorneys have a track record of succeeding in the VA claims process as a result of our unrelenting and dedicated skill. Our unique success is based upon our individualized approach to each and every veteran’s particular situation.
If you would like to schedule a consultation, please call the firm at 610.436.0100 or submit the contact request form.
Estate Planning
Estate planning is an essential step in ensuring that your family will handle your health and financial affairs the way you would like them to be handled, in the event of your absence or death. Whether it be due to death, illness or incapacity, the following documents are necessary in order for your wishes to be carried:
- Will
- Revocable Intervivos Trust (“Living Trust”)
- Durable Power of Attorney
- Health Care Power of Attorney (“Living Will”)
- Tangible Personal Property Memorandum
- Beneficiary Designations of Life Insurance/Retirement Assets
Will
A Will is a document that outlines how you want your assets to be distributed, and it appoints a person (the “Executor” or “Personal Representative”) who will make sure that your intentions are carried out upon your death. A Will is a legal document and it should be crafted by a lawyer trained to assist you in clearly identifying and outlining your intentions with respect to the appointment of a guardian for your minor children, and possibly establishing trusts which you may wish to establish at death for minor and/or incapacitated persons, or in cases where you simply want to protect your assets for a future period after your death for the benefit of one or more beneficiaries. A carefully drafted and artfully crafted Will can also implement tax planning and tax savings techniques. A Codicil is a legal amendment to an existing Will.
Revocable Intervivos Trust (“Living Trust”)
A Revocable Trust serves as a valuable supplement to a Will in certain cases. A person (the “Grantor”) contributes certain assets to the trust, or directs that the assets will be placed in the trust upon his death, but the person retains the right to revoke the trust and reclaim ownership of the trust assets at any time during his/her lifetime. Trust assets are not subject to probate, and pass directly to the beneficiaries of the trust in accordance with the provisions of the trust document.
Durable General Power of Attorney
A Durable Power of Attorney enables you to appoint a person as your attorney-in-fact/agent, to act for you in a limited or a general capacity with very few, if any, restrictions. Such a document, which is governed by state law, is a critical part of everyone’s estate plan, and it ensures that your agent will be empowered to handle all of your affairs until such time as you may wish to revoke or change the Durable General Power of Attorney. It is considered a “durable” document in that it endures a disability, so it is effective even if you become incapacitated. Without such a document, your family would have to petition a court to have a guardian appointed for you.
Health Care Power of Attorney (“Living Will”)
A Health Care Power of Attorney enables you to appoint someone to be in charge of making any and all decisions relating to your health, medical treatment, life sustaining treatment, etc. should you not be in a condition to make those decisions yourself. Such a document addresses the application of life sustaining procedures in the event of certain medical conditions, such as a persistent vegetative state and/or an end-stage medical condition. Sometimes a Health Care Power of Attorney/Medical Directive is called a “Living Will. This document is an essential part of everyone’s estate plan because it enables family members and/or close friends to know your intentions with respect to what type of treatment you want in the event you cannot communicate your wishes on your own.
Tangible Personal Property Memorandum
This is a separate document that is referenced in a Will and that enables you to direct the disposition of certain items of “tangible personal property” to a beneficiary of your choosing. Tangible personal property includes assets such as furniture, clothing, jewelry, collections, antiques, automobiles, etc., but not real estate, cash or other financial assets.
Beneficiary Designations on Life Insurance/Retirement Assets
Assets such as life insurance and retirement accounts have a contingent arrangement known as a “beneficiary designation”, which enables the owner to direct how he/she wishes these particular types of assets to be distributed upon death. Many times, people do not understand that what they state in such a beneficiary designation supersedes the provision of their Will, so it is critical that the primary and contingent beneficiary designations on life insurance and retirement assets are carefully crafted so as to coincide with and be compatible with the estate plan outlined in the Will, unless the person makes a conscious decision to provide for beneficiaries who are different from those beneficiaries named in their Will. In recent years, “Transfer on Death” beneficiary designations have become more prevalent with respect to non-retirement investment assets, and other accounts held at financial institutions. It is critical that any such “Transfer on Death” designation be analyzed and crafted, after first reviewing the plan outlined in a person’s Will, so as not to create an unintended result where the beneficiaries in the Will and the designation are not the same. For example, if you leave everything in your Will to a trust for the benefit of your minor children, but you have a beneficiary designation that simply names your minor children as the primary beneficiary of a particular asset (without mentioning the trust), then the children will receive the asset upon attaining the age of majority, even if the Will provides that they should not receive their inheritances until a later age.
Important Definitions:
Administrator
Person or institution appointed by the Orphans’ Court to manage the estate assets where no executor has been designated, or where the designated executor is unable or unwilling to serve.
Beneficiary
Person named in a Will or Trust to receive assets from the maker of the Will or Trust.
Decedent
Person who has died.
Executor (male)/Executrix (female)
Person or institution appointed in a Will, and thereafter appointed by the Orphans’ Court, to administer, manage and distribute a decedent’s estate in accordance with the terms of the Will. May also be referred to as a “Personal Representative”.
Grantor
Person who establishes a Trust. Also referred to as the “Trustor” or “Settlor”.
Intestate Heir
Person entitled to receive an asset under applicable state law, in the absence of a Will or Trust. If a person dies without a Will, he/she is deemed to have died “intestate”.
Personal Representative
Synonymous with the terms Executor or Administrator (see above).
Settlor
Trustor; Grantor. Alternate term for one who establishes a Trust.
Successor Trustee/Substitute Trustee
The Trustee who “takes over” upon the death, disability or resignation of the original Trustee or a prior Trustee.
Testator (male)/Testatrix (female)
Person who makes a Will.
Trustee
One who holds legal title to Trust assets, and also manages and distributes those assets in accordance with the terms and conditions of the Trust document. A Trustee may be an individual, or a bank, trust company or financial institution licensed to serve as a Trustee. A Trust may have one or more Trustees (Co-Trustees) who act together.
Trustor
One who establishes a Trust. The terms “Grantor” and “Settlor” are synonyms for “Trustor”.
If you would like to schedule a consultation, please call the firm at 610.436.0100 or submit the contact request form.
Real Estate
Estates & Trusts Law
Estates & Trusts Law
MacElree Harvey estate planning attorneys are committed to helping clients protect, preserve and control their assets during their lives, even if they become disabled.
Our estate lawyers also work with clients to help them implement a plan which will pass on their estates to loved ones in the manner they want – while minimizing the cost of Federal Estate, State Inheritance and Federal Estate Income taxes.
Estate and Trust Litigation, Guardianship and Orphans’ Court Procedures
Our attorneys represent executors, beneficiaries, banks, family business partnerships, trust companies and non-profit organizations. Not only does the area of estate litigation involve decedents’ estates and trusts, but also matters involving financial disputes concerning minors’ estates. The attorneys often interpret wills, trust documents and non-profit corporate articles of incorporation.
The estate litigation department often, and with increasing frequency, refers matters to private alternative dispute resolution. In matters involving family disputes, it is often desirable for the families to resolve their differences in a non-courtroom setting. However, in matters such as surcharge actions or Petitions to Remove Executors, our attorneys are well versed in the special Orphans’ Court rules established for disputes in the Court of Common Pleas of Pennsylvania.
There is also an increase in fiduciary liability cases. These are matters that often deal with self-dealing and fraud issues when a Power of Attorney, Trustee or Executor/Administrator of an estate is defending or prosecuting actions of wrongful taking from the entities that they have been charged to financially oversee. These matters typically involve accountings, surcharge actions and actions to assess liability and damages.
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