Testamentary Guardianships

A child of the 80’s and 90’s, I have a soft spot in my heart for The Simpsons. I can’t say I’ve watched a broadcast episode in decades, but I was delighted to find it in the offerings of Disney+. The other evening I put on an episode while I was making dinner. To my surprise, it had a great estate planning hook.

Episode 11 of Season 24 is titled “Changing of the Guardian”. After a natural disaster that nearly kills them both, Homer and Marge become concerned that they should name guardians to care for their children in case something happens to them.

The Simpson parents search for acceptable candidates: Grandpa Simpson is too old, Homer’s brother has lost his wealth and is not considered any further; Marge’s sisters are perhaps too strict (they have trained their adopted daughter to perform tricks on command). The other citizens of Springfield want nothing to do with the Simpson children and actively avoid Marge and Homer to avoid being roped into a guardianship.

Looking farther afield, the Simpsons go on a road trip and encounter a wealthy childless couple: a professional surfer named Mav and an environmental lawyer named Portia (voiced by Danny Devito and Rashida Jones, respectively). After being wooed by the kids, Mav and Portia agree to serve as guardians if any tragedy should befall Homer and Marge. (There is a nice scene showing the adults all signing the paperwork to make it legal.) Mav and Portia ask to take the kids for a ski weekend. At first Homer and Marge enjoy their time without the responsibilities of caring for their children, but they grow to suspect that the guardians are actually trying to steal their children. Mav and Portia fess up, and the kids are returned to their natural parents.

A few observations and lessons:

1. Naming a guardian for your minor children who would serve after your death (called a testamentary guardian) is an important function of a Will. In fact, it is an excellent reason for parents to get Wills. To prevent conflict and limit the trauma for the children, I strongly encourage my clients to make sure that both parents have nominated the same persons as guardian.

2. The probate court of the county where the children reside has jurisdiction over guardianships, and it must give deference to the wishes of the late parent when officially authorizing a guardian. The choice of the deceased parent that is incorporated in a Will will be accepted by the court unless there is “clear and convincing evidence that the nominated individual is unfit” (e.g., they are incarcerated or they have a known drug addiction). In other words, the test isn’t whether the court thinks there is someone better, the test is whether the nominated guardian is clearly unfit.

3. A person named as a testamentary guardian can decline to serve. One of the lessons The Simpsons nicely shows is how important it is to consult with the proposed guardian when naming them in a document (see also Manchester by the Sea). It prevents surprises for the nominated person, and it gives you reassurance that your plans are more likely to be effective.

4. If there is not a testamentary guardian named, any interested person can petition the Probate Court for a determination as to who should be the permanent guardian of the child. There will be notice to relatives and other interested persons, and a hearing will be held by the probate court.

5. Until the death of the parents, persons named as guardians in a Will have no legal authority or responsibility for the children. (Similarly, there is no legal significance to being named the godparent of a child.)

6. In the Simpsons, Mav and Portia sign a paper (which Grandpa Simpson notarizes) to make the guardianship official. In fact, under Georgia law, because testamentary guardianship is contained within a Will, it would be Marge and Homer signing the paper, not Mav and Portia. Also, in Georgia two witnesses have to sign a Will for it to be valid. A notary is not required to make a valid Will, but they are often employed to notarize a “self-proving affidavit” that generally accompanies a Will.

Stay tuned as I stumble across other Simpsons episodes that have some relevance to estate planning. I’m sure there are some inheritance plotlines out there somewhere!

Remembering Paul Farmer

It's such sad news to learn of the death of Dr. Paul Farmer, a co-founder of Partners in Health, and a pioneer in public health. There are many, many people who will undoubtedly share very thoughtful and educational pieces about the scale and scope of Dr. Farmer's impact on the world. I want to share a small, insignificant story about my interaction with him told in a long-winded manner.

In 2007, Dr. Farmer was scheduled to be the main speaker at Emory's Commencement ceremonies. I wouldn't graduate for another three years, but I was always staying abreast of what was going on. Like pretty much every year, there was some drama among the student body about whether the speaker was sufficiently important or famous to grace this event. The university addressed this in a real smart way: it gave away copies of Mountains Beyond Mountains, Tracy Kidder's book about the founding of PIH and Dr. Farmer, to students. And I think this mollified a lot of critics who previously simply didn't know who Dr. Farmer was. (My med school and public health friends were over the moon about the selection.) I didn't read the book (at that time) but (thanks to the intervention of my roommate, Jesse - a med student) I did manage to wangle myself into a private reception for Dr. Farmer and other other honorary degree recipients at the university president's home on the evening before graduation.

At the reception, there was opportunity for guests to mingle with the esteemed honorees, and I, alongside Jesse, ended up talking to Dr. Farmer next to the appetizer buffet. He was an exceptionally friendly guy; very easy to talk to. I asked how he was feeling about the speech the next day, and he expressed some trepidation, but he acknowledged he'd given a lot of speeches before. He was going to speak about some political things, and he wasn't sure how it would go over at an event normally filled with laudatory rhetoric. I, a 26-year old law student, assured him he'd be great(!).

Somehow, I decided to lean into this encouraging attitude, and I went out that night and bought markers and some poster boards. I made a few signs.

The next day, Jesse and I got to Emory's quadrangle while everyone was lining up to process in for the event. We got into a strategic location, and then held our first sign up for everyone to see: EMORY LOVES PAUL F. (I should have spaced my letters out better to get FARMER in there - I'm sure a lot of people were like, "who is Paul F? Probably some graduating kid.")

Once the long procession wound its way to us, we made sure that Dr. Farmer saw the sign, at which point we revealed our second sign: REGARDLESS OF SPEECH QUALITY OR CONTENT. Dr. Farmer burst out laughing.

He did give a good speech. I don't remember much of it, but that's how a lot of speeches are. I do remember he mentioned the controversy of his selection as commencement speaker. He spoke about Emory's ideals and how we try to bring about a better world. He spoke about a young man who was a Haitian immigrant to the U.S., via Guantanamo Bay, and who became a soldier for the U.S. I remember in particular his discussion the treatment of Haitian refugees, and how, long before the War on Terror and the imprisonment of enemy combatants, the U.S. base at Guantanamo Bay had been used as a legal no-man's land. The Coast Guard had used Gitmo as a extra-judicial site to detain HIV+ Haitian refugees it didn't want to allow into the country. I remember him talking about anti-immigration trends, and I remember him calling us to do better.

After the speech ended, Jesse and I held another sign at the end of the aisle, where Dr. Farmer would have a clear view of us: GOOD JOB PAUL! As Dr. Farmer processed away at the end of the event, he stopped and gave us the printed version of the speech he had read from. Jesse has that artifact.

Years later, Dr. Farmer and I sat next to one another at the Cathedral Church of St. John the Divine in New York City at the ordination of a mutual friend into the diaconate. By that time, I had read Mountains Beyond Mountains, and I felt somewhat sheepish that I had previously engaged Dr. Farmer with such casualness. But talking with Dr. Farmer was never intimidating. He said he'd been trying to remember why I looked vaguely familiar. We laughed when I told him the story. He was a kind, generous person - a model of how to be both incredibly impressive but also self-effacing and down-to-earth.

RIP Paul Farmer.

A New Logo

I’m happy today to share the new logo and mark for Weyer Law LLC.

Ever since I started thinking about the possibility of going into estate planning and, more specifically, about the possibility of having my own law practice in estate planning, I've been orbiting this concept: Share your harvest.

This new logo features a sheaf of grain to represents the harvest and all that goes with it.  For me, harvest and estate planning are both about the ideas of gathering, abundance, and generosity.

Taking each of these in turn:

• Gathering is a process of reflection and collecting what it is that is most important in our lives.  As we think about what we will leave for those that survive us, it is important to not limit ourselves to simply inventorying our financial assets or accumulated property.  Gathering can also be thinking about artifacts of family history, objects of sentimental value, and lessons learned over a lifetime.

• Abundance is the idea that there is more than enough to go around, and it stands in opposition to the ideas of scarcity, competition, and zero-sum.  A mindset of abundance is one of humility, gratefulness, and trust in others.  To live abundantly is to reject wastefulness and carelessness; it is about living thoughtfully.

• Generosity is how we share what we have, and it goes hand-in-hand with abundance.  To be generous is to share enthusiastically and broadly with others.  It is to invite others into our lives and to be open to sharing ourselves with others.

Beyond this, the agricultural theme connects to my time working as a garden apprentice over two years out of college.  (The farm I was at didn’t harvest grain at the time, but now they have a modest stand they sow and reap every year.)  I loved working outside and working with my hands.

The sheaf of wheat is one of the symbols of Demeter, the Greek mythological goddess of the seasons, the harvest, the sacred law, fertility, and the cycle of life and death.

Indeed, the image of a sheaf of wheat goes neatly with the image of a scythe or sickle – images that remind us of our own mortality.

Grain is an important motif in Christianity, my faith tradition.  Writing about grain in the context of Christianity is to contemplate eucharist, grace, transformation, care for the poor, and the shared meal.

Finally, the lines of the sheaf suggest movement upward from the ground toward the sky.  I’ve come to think of this as reflective of the experience of generations, with the lower lines symbolizing the generations behind us, the negative space of the binding symbolizing our present, and the lines above representing the future generations.  The lines don’t go straight up, nor are they symmetrical.  I wanted this asymmetry, because I think it reflects a certain amount of unpredictability and wildness in life.  As individuals and as families, may we be grounded in the best parts of our past but also open to new paths and possibilities.

Remembering and Being Remembered

What objects stir up memories of your loved ones? What objects of yours do you think will lead others to think of you?

Today’s New York Times has a poignant photo-essay in which Times readers have provided pictures of objects that remind them of loved ones lost in the last year or so, when our traditional approaches of grieving and mourning have been largely curtailed. It’s just lovely, and I encourage everyone to spend time with it.

One reader provided a picture of a wooden rolling pin that had seen good use by his late aunt. He writes, “I have this rolling pin that my aunt used to roll out dough for kolaches, the Czech pastry. She probably did it for all kinds of Christmas cookies and Norwegian pastries. When I saw this from her kitchen, it was just in great shape. It made me think back to all generations of our family, making that food — it’s a great connection.”

As an estate planner, I noticed a few things as I looked at the objects and read the stories. First, there are several readers who received their treasured item as a gift directly from their loved one. This is a wonderful way to pass on an item. One reader received an engraved thimble from her mother. She wrote, “The last time I went to see her, in January 2020, she reached into her little box and said, ‘I want you to take this.’ It was the thimble I’d seen her use my whole life. It’s really special that I have it now.” This sort of gift giving is particularly meaningful because it is so intentional. The gift giver is passing something along that they see as special and imbued with significance. The preciousness of the item is shared by both the giver and the recipient. Giving a sentimental gift during your lifetime is a wonderful thing, and I encourage my clients to consider it.

For other readers, their special item was received after their loved one’s death. Some of the items are, to third parties and maybe even to the late loved one, rather mundane. But for the person currently possessing the item, the object is like Proust’s madeleine, evocative of memories that unfold and unfold. One reader submitted a photo of an old, opened box of sandwich baggies. “The old sandwich box — it’s silly, isn’t it? I had pulled it out of our pantry and I lifted it up to put in the recycling and then I realized how old it was, that it was from Dad, who passed away in April. It was really nice to get the reminder of how nice it was to walk into one of his apartments in Center City and have a relaxing afternoon on a Sunday, watching sports or getting some lunch. Each time I came back to Philadelphia, I landed in his apartment, and he would take me in.”

For other items, such as a prayer shawl, a lasso, a rosary, or a baseball glove, the sentimental significance is not so hard to imagine. And it’s heartwarming that these items have found new homes and caretakers.

When I speak with clients, I encourage them to reflect on whether there are particular items that they would like to gift to a family member or loved one. Sadly, heirs and family members can sometimes bicker and fight about certain prized and sentimental items. Lawyers who specialize in litigation surrounding wills and estates have horror stories about families rend apart by these disputes. To help ensure that the objects are remembered with fondness for the giver and not with bitterness over the fight to acquire it, it can be helpful to for the person writing his or her will to provide clear instructions about how these items should pass if they are not gifted during life. These instructions can be in the will itself (e.g., “If it is in my possession at my death, I leave my rocking chair, built by my grandfather, to my son Charlie, if he survives me.”) or provided for in a separate letter. In wills I draft, I generally include the following language: I may have left with this Will a letter or memorandum signed by me and bequeathing certain tangible personal property I may own at the time of my death to the persons named therein, and I direct my Executor to distribute such property in accordance with the terms and provisions of any such letter. I understand that any such letter executed after the signing of this Will may not be legally binding upon my Executor, but I request that my Executor honor my wishes as expressed in any such letter. (This approach of using a letter supplement to your will was recently sanctioned by new law OCGA 53-4-5, which came into effect on January 1, 2021.)

But a person writing a will or one of these letters cannot (and probably should not) catalogue all the items they own. And, as in the case of the sandwich baggies, they might not anticipate what someone else finds meaningful. Instead, as a backstop, they can encourage their Executor to invite family members and friends to request items of special meaning. I’ve recently started also including the following line: …my Executor shall, in my Executor’s sole and absolute discretion, distribute any items of sentimental meaning among my family and friends… In this way friends and loved ones might be able to ask for a particular garment, or a trinket, or a item from the kitchen.

In my own life, there are special items I have received from loved ones now passed. I think of a model helicopter that belonged to my grandfather, a cutting board and vegetable peeler used by my grandmother, and a small piece of art that I gifted to a friend and that I received back after he died. These are treasures to me, their value perhaps not evident to others. But when my gaze lands on them, I think fondly of their origin and how fortunate I am to have had these loved ones in my life.

Photo credit: David Knutson

The Probate Information Center

Two weeks ago at an online celebration I was honored with the “Leading the Charge” award from the DeKalb Volunteer Lawyers Foundation (DVLF). I shared this award with attorney Ed Kirkland and Emory Law student Jenna Hunter for our contributions to the DeKalb Probate Court’s pro bono clinic known as the Probate Information Center (PIC).

DVLF accepts requests for assistance from the potential clients and coordinates with the Probate Court to set up sessions every other Thursday at which the clients can meet with volunteer attorneys. During the meeting, the volunteer attorney assists the client in navigating the probate and estate administration process. This often includes identifying heirs, preparing petitions, and setting out a game plan for next steps for the client to take out on their own. There’s no doubt that many of the clients are in difficult and complicated straits; even experienced attorneys find some of these matters to be very challenging.

In the past (and hopefully in the future), the Probate Court hosted these in-person meetings, but during the COVID-19 pandemic, this sort of close contact is not possible. Jenna, Ed, and I worked with DVLF and the Probate Court to develop a plan for hosting these meetings remotely. (Jenna definitely took the laboring oar in this process, making enormous contributions to the PIC.) For now, attorneys and clients are using Zoom or phone calls as substitutes for in-person meetings. The processes developed during the pandemic, though, will prove useful moving forward. Zoom and phone meetings can expand the reach of the PIC to the homebound or to those who cannot make arrangements to visit downtown Decatur.

Unresolved estates can be enormous problems, tying up property and assets, sometimes for generations. PIC, as a collaboration between the volunteer attorneys, the Probate Court, and the DVLF, takes on these challenges, benefiting both the clients and the community at large. I’m very proud to be a part of it.

Reflecting on Legacies - Civic Participation

One of the things I am trying to do in my practice of estate planning is to think broadly about how we leave a legacy for future generations.  As an estate planner, I help clients compose documents that reflect their values and beliefs, and do so in an organized fashion.  If charity is important to the client, then we can put charitable bequests into a will.  If certain family matters are important, such as regular vacations with all the family members, then we can provide language in a trust to try to ensure that these traditions are maintained as best as possible.

But when we think of our legacy, we can also think beyond our estate planning documents.  The things that we do today will have an impact on the lives of those who come after us.  One means of leaving an enduring and positive legacy for the next generation is being a responsible custodian of our civic space.

So how do we do this?  I have a number of suggestions, and I'll explore them over several upcoming blog posts.  For now, though, I'll just focus on the most basic means of participating in our civic society: voting.

Become an informed, registered voter and vote in every election.  Register others to vote and persuade them to actually vote.  Voting is at the heart of our system of government at every level.  Mayors, county commissioners, members of school boards, judges, tax officials and clerks, sheriffs, legislators at the state level, governors, representatives to Congress, Senators, the Vice President, and the President - there are a lot of elected offices around.  But voting can and should be more than showing up to the biggest elections and voting a straight party line.  We should find means and opportunities to get to know candidates and to learn their positions. The League of Women Voters oftentimes solicits and publishes policy positions from major candidates.

And of course, there are also the ballot issues and referendums that deserve thoughtful consideration.  In advance of an election, you can generally find a sample ballot that is specific to your voting district or precinct.  This sample ballot will let you know exactly what is being voted on.  In Georgia, sample ballots can be found at the Secretary of State's website: https://www.mvp.sos.ga.gov/MVP/mvp.do  (This is also where you can confirm your registration status.)

At any time, but especially in the time of COVID-19, absentee balloting (also called vote-by-mail) is a convenient means of casting your vote without having to go to your polling location and standing in line. Georgia voters can request absentee ballots here.

My concern for the legacy I am leaving future generations has motivated me to spend considerable time in 2020 working both for the political campaigns of the candidates I support as well as for voter protection efforts. While not everyone is able to take time away from their work to get so involved, I do hope that everyone who is able takes the time to (a) learn about our electoral system; (b) learn about the candidates; (c) cast their own vote; (d) support the full enfranchisement of all eligible voters; and, finally, (e) teach the next generation about steps (a) through (d).

A Fresh Start

Dear Friends,

I’m happy to announce the reopening of Weyer Law LLC (previously the Law Office of Stephen Weyer, LLC).

The reopened firm is a little different from its previous iteration, as could be expected during this time of COVID-19. Instead of working out of an office downtown, I am now working from my home office in Kirkwood. To protect my clients and myself, all meeting are offered on either by phone call or by Zoom. Document execution can be arranged either remotely or in person, using masks and social distancing.

Otherwise, things haven’t changed. I am still committed to providing excellent service and estate planning documents at a fair price. I still focus on creating estate plans that reflect your values. And I’m still invested in educating the community about the importance of estate planning.

Please note that until the resolution of the run-off election for the two Senate seats from Georgia, I will be taking on only a limited number of clients. I am otherwise spending my time helping the campaigns and some voter protection programs.

I look forward to working with you. I hope you’ll be in touch.

Steve

Change

Dear Friends,

At the Law Office of Stephen Weyer, LLC, we’ve always known that the only thing certain in life is change. This is not something to fear — rather, it is a reality around which to be prepared. As a business that serves clients by helping them make plans, we always emphasize the importance of being alert to the possibility of changes and new opportunities.

At the end of October 2018, The Law Office of Stephen Weyer, LLC, will close, and I will join the estate planning firm of Cohen & Caproni LLC in Sandy Springs, Georgia. This move represents a great opportunity to continue serving estate planning clients and to offer them additional insight, experience, and expertise. The other attorneys of the firm - Walter, Al, and Morgan - are a great team, and I am excited to join them.

If you would like to work with me and the other attorneys of Cohen & Caproni, I hope you’ll be in touch.

Cohen & Caproni LLC
404-252-8080
sweyer@cohenandcaproni.com

To my wonderful clients: Thank you for the trust you have placed in me. It has been a pleasure serving you, and I hope we will continue to work together through all of life’s changes.

Steve

Where to Keep Your Will (and other important documents)

It used to be common for attorneys to retain possession of a client's will.  Once the attorney was informed of the client's death, the attorney would review the will and notify the executor.  Nowadays, many attorneys, myself included, will not hold original wills for their clients.  (I keep only electronic copies of the scan of the document after it was executed.)   Instead, it is the responsibility of the client to keep and protect the will.  With that in mind, clients ask, "Well, where should I keep it?"

The instinct of many folks is to keep the original will in the safe deposit box at the bank.  This is not the best option if you do not have a spouse or other co-renter on the safe deposit box contract.  These boxes are sealed upon your death; without Letters of Administration it can be tedious and time consuming for your purported executor to gain access to it.  Importantly, a person who has a Power of Attorney for you during your life cannot use that authority to access your safe deposit box after your death.  Similarly, a deputy on the box might not have access to the box after your death -- be sure to check the rules with your bank.

A better alternative may be to keep your will in a fireproof box on a shelf in your home.  Keeping the will in a fireproof box will (hopefully) protect it from fire, and keeping it off the ground will (hopefully) protect it from a flood.  I've heard the recommendation that the box containing the will should be closed and latched, but left unlocked.  The logic goes that, for the thief, a locked box contains the possibility of cash or a gun or something else worth stealing; an unlocked box that is revealed to only contain papers will be left alone.  Keeping the box unlocked also makes the will available to your family without them having to struggle to recall the combination or locate the (typically very small and easily misplaced) key.  If you have a deed to a cemetery plot, keep that in the same accessible place as the will.  Your will and cemetery plot deed likely do not have the sort of information in them that would be immediately useful for identity theft.

Another alternative, specific to wills, is to deposit it with the county court.  In Georgia and many other states, this can be done for a nominal fee.  Once deposited in the court, the document will remain sealed until the court is notified of your death. or until your remove it yourself.  If you choose to store the will with a court, however, it is essential that you inform your named executor.  While storing a will at the court is safe, it is not a common option, and it may not occur to your executor to look there.  Finally, if you decide to write a new will, you will need to return to the courthouse to recover the one filed there to destroy it.  If you move after you store the will with the court, be sure to withdraw the will and refile it in your new location.

What about other documents, such as birth certificates, property deeds, car titles, original social security cards, marriage certificates, and savings bonds or other securities that aren't generally kept by banks?  These are documents in which the original can be important and difficult to replace.  They also may be useful to identity thieves.  And they typically are not needed in the first few days after your death.  Instead, they may be useful during the estate administration process, once an executor or administrator is in place.  With that in mind, if you have a safe deposit box, these documents could be placed there.  If you have a more secure home safe, like a locked gun safe, these documents could be safely stored within.  A locked file cabinet, while somewhat less secure, may also be an option for many people.

Some other documents should be treated differently.  An Advance Directive for Healthcare, for instance, should be copied and distributed to your healthcare agent, your back-up agents, your doctors and other medical treatment centers, and, if appropriate, to your family.  Keeping this document locked up or hard to find obliterates its value.  Keeping a photos of your own Advance Directive and those of the people for whom you are a healthcare agent on your smartphone may be helpful in case of an emergency.

A general Power of Attorney should be held by both you and your Agent(s).  While Georgia law recognizes the validity of a copy of a Power of Attorney, for real estate transactions the original document will be needed.  There may be a benefit of also keep with your Power of Attorney instructions on how to terminate the document if needed.

No matter where you keep your documents, it is important that you let your loved ones and intended Executor know where the documents can be found.  If you have a locked home safe, make sure someone knows how to open it.  The days immediately following a death can be stressful - providing your family and friends clear guidance on how to gain access to these most necessary documents is a kindness.
 

Updated August 21, 2018 to include additional information about storing a will with the court.

Estate Planning for Catholic Adults - August 4, 2018 Presentation Recap

Yesterday evening I gave a presentation to about forty people after Mass at Our Lady of Lourdes Catholic Church in Atlanta, Georgia.  I discussed the three primary documents of estate planning: an Advance Directive for Healthcare, a Durable Power of Attorney, and a Will.  I also explained how there is a Catholic version of the Advance Directive for Healthcare, that takes into account Catholic teaching about end-of-life decision-making, and I addressed some of the differences between this document and the statutory version the State of Georgia has promulgated.  We also discussed beneficiary designations, charitable giving, and general advice for estate planning.

If you could not attend the event, you may find the slides and handout here.

Some of the items discussed that are not addressed on the slides include (a) the difference between a Healthcare Agent and a court-appointed Guardian, (b) how a person ethically weighs the burdens of medical treatment against the good that it can do, and (c) the current estate tax exemption.

If you would like to learn more about this presentation or if you have any questions about estate planning, please contact me at 404-860-1313 or steve@weyer-law.com.