“There is no exercise better for the heart than reaching down and lifting people up.”
~John Andrew Holmes
Golombek Law, LLC has extensive experience and capabilities in the following practice areas:
Nearly everyone over the age of 18 needs to have in place at least four basic estate planning documents:
- Medical Power of Attorney
- Financial Power of Attorney
- Living Will
Depending on one’s particular circumstances, often additional estate planning instruments such as trusts and deeds may be recommended in order to accomplish one’s estate planning goals. It is best to have an experienced, licensed lawyer who is familiar with the laws of the state in which you live, review your prior estate planning documents to ensure that they comply with the laws in your current state of residence and/or to ensure that they are up to date. If you are doing estate planning for the first time, it is important that you meet with an attorney who can review your situation with you, answer your questions, and provide a custom drafted estate plan for you to make sure that your estate planning goals can be properly met. Additionally, by using an attorney you trust, if you should have any changes to your estate plan in the future, the attorney can do so quickly and easily without having to redraft all of your estate planning documents.
The benefit of having an estate plan is that it allows you to:
- Plan for your and your family’s future;
- Make your wishes known regarding how you want your assets distributed;
- Make your wishes known regarding end-of-life circumstances;
- Direct who you want to manage your medical affairs should you become incapacitated;
- Direct who you want to manage your financial affairs should you become incapacitated;
- Direct who you want to be appointed as your guardian and/or conservator should one be necessary;
- Direct who you want to care for your minor children if something should happen to you and/or your spouse;
- Direct who you want to manage your assets on behalf of your minor children should something happen to you and/or your spouse; and
- Direct how you wish for your last remains to be handled (ie. Burial versus cremation, and what type of memorial funeral or ceremony you want).
Golombek Law, LLC has a personalized approach to providing clients with customized estate plans prepared in a quick and affordable manner utilizing reasonable flat rates for your individual estate planning needs.
In the event an individual is unable to manage his/her own personal affairs, and specifically decisions regarding their care, placement and medical treatment, when powers of attorney are not effective, there is a legal mechanism to protect such persons. This is called a guardianship proceeding and typically involves the court appointment of a guardian for a minor, disabled, or elderly person who is found legally incapacitated and is unable to manage their personal and medical affairs. Upon appointment, the court-appointed guardian is legally authorized to manage the care of the Ward (the incapacitated person).
Examples of situations in which a guardian may be required include:
- the need to care for a parent or relative who has Alzheimer’s, Dementia or other cognitive disability;
- the need to resolve family disputes over the care of a parent or relative with diminished capacity;
- parents who need the requisite legal authority to care for an adult disabled child; and
- friends or relatives of a minor whose parents are temporarily or permanently unable or unavailable to care for such minor child.
The guardianship process requires the filing of court documents, the investigation by a Court Visitor who reports to the court regarding the need for a guardian and appropriateness of the nominated guardian, attendance and presentation of evidence at a court hearing for which proper notice has been provided, and the post-appointment filing of court documents and annual guardianship reports.
Given the complicated and emotional process related to a guardianship proceeding, children and other relatives of the incapacitated person (referred to as the Respondent until a guardian is appointed), and especially those living out of state, frequently require legal advice about their legal rights and obligations with respect to such matters. In specific, family members and in particular those who are petitioning the court for a guardianship on behalf of the incapacitated person, often require assistance with respect to setting forth their position regarding the need for the appointment of a guardian, who the appointed guardian should be, the development of a care plan for the ward and the development of a plan for the management of the ward’s assets, especially when a guardianship matter becomes adversarial due to family conflicts.
Golombek Law, LLC has extensive experience handling guardianship proceedings and contested guardianship proceedings and in particular:
- Representing family members or other interested persons in petitioning the court for a guardianship on behalf of their incapacitated relative;
- Representing family members or other interested persons in objecting to or setting forth their position with respect to a guardianship proceeding which has already been initiated and supporting them through mediation in an effort to resolve guardianship disputes;
- Advocating for a person with diminished capacity in expressing his/her wishes with respect to a guardianship appointment, whether any limitations are appropriate, and/or who they wish to be appointed as guardian; and
- Representing a court-appointed guardian with respect to a guardianship proceeding.
Similar to a guardianship, a conservatorship proceeding is the process in which the court appoints a conservator for a person (typically a minor, disabled, or elderly person) who requires assistance with the management of their financial affairs or with respect to assets they currently own or are expected to receive (for instance settlement proceeds, governmental income or an inheritance), when powers of attorney are not effective. Unlike a guardianship, a conservatorship appointment does not necessitate a finding that the person requiring assistance is legally incapacitated, but rather, a showing that such person (referred to as the Protected Person upon the appointment of a conservator) is unable to manage property and business affairs because they are unable to effectively receive and evaluate information or both or to make or communicate decisions even with the use of appropriate and reasonable available technological assistance due to a disability or impairment. Upon appointment, the court-appointed conservator is legally authorized to manage the income and assets of the Protected Person.
Examples of situations in which a conservator may be required include:
- the need to manage the assets/financial affairs of a parent or relative who has Alzheimer’s, Dementia or other cognitive disability;
- the need to resolve family disputes over the management of assets/financial affairs of a parent or relative with diminished capacity;
- the need to manage finances/assets received by a minor as a result of an inheritance or personal injury settlement; and
- the need to manage the governmental income of a disabled adult child.
Like the guardianship process, a conservatorship requires the filing of court documents, the investigation by a Court Visitor who reports to the court regarding the need for a conservator and appropriateness of the nominated conservator, attendance and presentation of evidence at a court hearing for which proper notice has been provided, and the post-appointment filing of court documents and annual conservatorship reports. As a part of a conservator’s annual reporting duties, a conservator is required to file annual accountings with the court indicating how the conservatorship assets were spent.
As with a guardianship, given the complicated and emotional process related to a conservatorship proceeding, children and other relatives of the protected person, and especially those living out of state, frequently require legal advice about their legal rights and obligations with respect to such matters. In specific, family members and in particular those who are petitioning the court for a conservatorship on behalf of a loved one, often require assistance with respect to setting forth their position regarding the need for the appointment of a conservator, who the appointed conservator should be, and the development of a financial plan for the management of the protected person’s assets, especially when a conservatorship matter becomes adversarial due to family conflicts.
Golombek Law, LLC has extensive experience handling conservatorship proceedings and contested conservatorship proceedings and in particular:
- Representing family members or other interested persons in petitioning the court for a conservatorship on behalf of their relative;
- Representing family members or other interested persons in objecting to or setting forth their position with respect to a conservatorship proceeding and supporting them tvhrough mediation in an effort to resolve conservatorship disputes;
- Advocating for a person over whom a conservatorship proceeding has been initiated in expressing his/her wishes with respect to the conservatorship proceeding; and
- Representing a court-appointed conservator with respect to a conservatorship proceeding.
Estate and Trust Administration
Estate administration (also referred to as “Probate”) refers to the process by which a court appoints an individual to administer and distribute the assets of a deceased individual (referred to as a decedent). Since administering an estate is a multifaceted and often complex process, family members or others who have been nominated in the decedent’s will as the personal representative (also known as executor) of the estate (ie. the person responsible for gathering the estate assets, paying the decedent’s debts and distributing the assets to the estate’s beneficiaries), will require the assistance of a probate attorney to assist them with the estate administration. Additionally, heirs or beneficiaries to an estate often request representation by a probate attorney to represent their interests in an estate to: gain a better understanding of how long the estate administration process is expected to take, confirm that the administration is being handled appropriately, determine their share in the estate, to ensure that they receive the share they are entitled to, and to verify that their inheritance does not negatively impact their own estate plan or disqualify them for any public benefits they are receiving. Moreover, often a personal representative/executor (referred to as a fiduciary) of an estate requires representation in their fiduciary capacity to defend their administration of an estate.
Similar to an estate administration, a trust administration refers to the process by which a trustee of a trust administers the assets of the trust either on behalf of lifetime beneficiaries, or upon the death of the person who created the trust (referred to as the settlor) for the benefit of his/her beneficiaries. As with an estate administration, often a trustee often chooses to hire a probate attorney to assist him/her with the trust administration or to defend him/her in their fiduciary capacity. Likewise, beneficiaries of a trust often seek representation by a probate attorney to represent their interests with respect to the administration of a trust.
Golombek Law, LLC is experienced in handling estate and trust administration and in particular:
- Representing personal representatives/executors in his/her fiduciary capacity in administering an estate;
- Representing trustees in his/her fiduciary capacity in administering a trust;
- Representing beneficiaries of an estate; and
Representing beneficiaries of a trust.
Seniors have unique legal needs that are best served by an attorney with extensive knowledge and experience in the field of elder law. Elder law encompasses a range of issues of importance to seniors including incapacity, financial exploitation and undue influence, long term planning, locating an appropriate care facility, coordinating resources such as the assistance of a professional care manager or money manager and public benefits/insurance, Medicaid planning, guardianship, conservatorship, and estate planning including the drafting of powers of attorney and advance directives.
Golombek Law, LLC can assist with all matters encompassing elder law. Contact us with your elder law issue.
Where there is a relationship of trust and reliance between two people, that relationship gives rise to a fiduciary relationship. A fiduciary is subject to a higher degree of duty that obligates that fiduciary to act in good faith and with care and loyalty to further the other’s best interests.
Examples of fiduciaries include:
- A guardian appointed by a court to care for an incapacitated person and manage his/her personal/medical affairs;
- A conservator appointed by a court to manage the assets and/or financial affairs for a person who needs assistance;
- An agent under a person’s medical and/or financial power of attorney;
- A personal representative/executor who is appointed by a court to administer the estate of a deceased person; and
- A trustee who is court appointed or nominated in a trust who is responsible for administering the trust assets.
Taking on any one of the above fiduciary roles is an enormous responsibility and one that should not be undertaken without being informed about the duties it entails. Colorado has enacted numerous statutes specifically detailing the fiduciary duties of those fiduciaries listed above. In some cases, family members or other interested persons allege that a fiduciary did not comply with his/her fiduciary duties. Sometimes this results in a lawsuit against the fiduciary. This type of lawsuit is called a breach of fiduciary action. In such cases, it is recommended that the fiduciary hire legal counsel to advise them regarding their actions and defend their decisions. For these reasons, it is extremely beneficial for a fiduciary to hire legal counsel at the outset of their fiduciary role to advise him/her about their duties and to seek advice before he/she take certain actions.
Golombek Law, LLC has extensive experience representing fiduciaries alleged to have breached their fiduciary duties as well as representing interested persons alleging a breach of fiduciary duty. If you are engaged in a dispute that may involve a breach of fiduciary duty, Golombek Law, LLC can help counsel you about your rights and legal obligations.
A common type of litigation brought before a probate court is estate/trust litigation, otherwise referred to as a “will/trust contest” (which involves disputes over a decedent’s estate/trust). The fact that a person leaves a will/trust does not guarantee that his/her property will be distributed according to the terms of the will/trust. A court must generally provide an opportunity to allow others to object to the will/trust, and a legal challenge, called a will/trust contest, may be brought by anyone with an interest in the will/trust who wishes to challenge the validity or terms of the will/trust. Typical bases for a will/trust contest include allegations that a will/trust was inadequately executed, invalidated by a later instrument, is ambiguous, or was the result of incapacity, forgery or undue influence.
In addition to will/trust contests, there are numerous other types of probate litigation including breach of fiduciary duty actions (see Fiduciary Representation practice area), objections to a guardianship or conservatorship petition (see Guardianship and Conservatorship practice areas), and other types of protective proceedings including disputes over powers of attorney.
Golombek Law, LLC has extensive probate litigation experience. If you are engaged in a probate dispute that may involve litigation, Golombek Law, LLC can help counsel you about the weight of your case and discuss the legal options available to you.
Special Needs Planning
It is common for families to have a family member who has a disability or special needs. While the government provides financial assistance through programs such as Medicaid, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI), it is rarely sufficient to meet all of the needs of a disabled person. Special needs planning, and specifically, a special needs trust is a crucial legal tool which holds assets to care for and protect the elderly and persons with disabilities while allowing them to continue to receive their necessary government benefits. Failure to plan for a disabled family member could jeopardize his/her government benefits.
There are numerous advantages to special needs planning and the use of a special needs trust including:
- preserving eligibility for government benefits;
- providing funds to pay for “extras,” (e.g., homes, automobiles and supplemental therapies/services);
- protecting a case settlement from depletion;
- keeping assets within the family; and
- giving family members much needed peace of mind by providing funds to care for their loved ones who may not be able to care for themselves.
Golombek Law, LLC is here to assist you in planning for your loved one with special needs in order to provide them with the quality of life they deserve. Such assistance includes:
- Providing for a person with special needs in your Will
- Applying for Guardianship
- Setting up a Special Needs Trust
- Advising you regarding long term care and asset preservation and protection planning for loved ones with disabilities
- Durable powers of attorney
- Health care proxies and living wills
Consulting in Personal Injury Settlements
Consulting in Personal Injury Settlements for Minors and Incapacitated Persons
When a personal injury matter involves a settlement on behalf of a plaintiff who is a minor or an incapacitated adult, it is common for an elder law attorney to be consulted regarding the inherent protective issues involved. Golombek Law, LLC has been consulted by and worked with numerous personal injury counsel and parents of minors expected to receive a settlement due to an accident or injury.
Golombek Law, LLC provides the following services to personal injury counsel:
- Petitioning and obtaining probate court approval of settlements for minors and incapacitated adults;
- Assisting personal injury counsel in obtaining probate court approval of a proposed settlement as well as their contingent fees;
- Petitioning the probate court for the appointment of a guardian or conservator for the subject of a personal injury lawsuit;
- Preparation of appropriate estate planning documents in order to protect the plaintiff’s settlement funds; and
- Assistance with a Qualified Settlement Fund (QSF) and/or a Special/Supplemental/Disability Trust.