Monday, February 15, 2016

Who needs a guardian and conservator?

Many people, at some point in their life, will need help from someone else in their day-to-day responsibilities, health decisions and finances.  For most people, this happens when they become legally "incapacitated", meaning they are no longer able to make those decisions for themselves.  We see this with our parents and grandparents when they get dementia or Alzheimer, we see it with our children who turn 18, legally independent, but have things that prevent them from functioning independently, i.e. autism, brain tumor, etc.

For the former, our parents and grandparents, they could prevent needing a guardian and conservator by executing an advanced medical direction and power of attorney prior to their incapacitation.  Those documents put in writing their wishes for who how decisions will be made and who will make those decisions on their behalf.  However, for our children who are incapacitated prior to turning 18 and individuals who did not execute a power of attorney or advanced medical directive, we use a guardianship and conservatorship to ensure their rights are protected.

While they are typically done together, a guardian and conservator are two separate legal identities and can, in fact, be two different people.  Let's start with a guardian.  A guardian, is appointed by the court through a Petition for Guardianship, to take care of an individual on a day-to-day basis, make health decisions, etc.  This person typically will report to the Department of Social Services, who oversees the guardianship and ensures the guardian is fulfilling his duties and responsibilities to the incapacitated individual.  A conservator is the financial counterpart to the guardian.  A conservator, appointed by the court through a Petition for Conservatorship, handles the incapacitated individual's finances.  This person reports to an individual or agency; in Virginia it is the Commissioner of Accounts in the County where the incapacitated individual resides.  This person will report all money coming in for the incapacitated individual and spell out how that money gets spent, invested, etc.  The Commissioner of Accounts ensures that the conservator is appropriately handling the incapacitated individuals finances and not abusing their power.  The guardian and conservator must report to the Department of Social Services and Commissioner of Accounts at least annually throughout the duration of their appointment as guardian and conservator (in most cases this is until the incapacitated individual passes away or a new guardian or conservator is needed).

To actually get a guardian and conservator appointed, the court will appoint a guardian ad litem to investigate the circumstances, ensure the incapacitated individual is represented and protected and make recommendations to the court on whether a guardian and conservator are necessary as well as who the court should appoint to act in those roles.  During a hearing in court, the court will make those determinations and if appropriate, issue an order appointing someone as guardian and conservator.

So, if you have a family member or close friend who you think may be incapacitated, in need of legal assistance and without a valid power of attorney or advanced medical directive, you may need to begin the process of petitioning the court to appoint a guardian and conservator.

Tuesday, February 2, 2016

Why People Settle Law Suits

If you've never been involved in a law suit you may wonder why it is that people settle.  Does it mean they admitted they were wrong?  Does it mean they didn't think they would win the case?

Here's a bit about just some of the reasons people decide to settle in law suits:

1. To Avoid Risk
In every law suit, there is a risk that you will lose.  Even if you think you have an airtight case, you have to remember that law suits evolve constantly, new evidence is discovered, the law may be clarified, etc.  That means that the strength of your case could change suddenly.  So, would you rather wait and see if you can win $500,000 with the potential of losing and getting $0 or would you rather take $200,000 today and avoid the risk of not getting anything.

2. Emotional costs
Being involved in a lawsuit, whether it is for divorce, wrongful termination, personal injury, or other types, is hugely emotional and stressful.  As cases go on, some people decide it may not be worth the stress to keep fighting.  Once a case is settled, people tend to find that they can then move on with life.  Depending on the person and the circumstances surrounding the law suit, emotional costs could make someone want to settle their case.

3. Public Opinion
This comes into play more for large companies who do not want the bad publicity of a law suit.  This alone may not cause someone to settle a case but it certainly comes into play.  For example, if there was a sexual assault in the workplace, they may decide it would be a better business decision to try to settle the case rather than fight it in the public eye.

There are many, many reasons why people will decide to settle a case and these are just a few examples.  The decision to settle is a complex decision and requires a lot of communication between the individual and their attorney.  Remember, that's why you have an attorney, to provide you guidance on how to move forward in a case.

What to Expect during a Divorce Settlement Conference

Many attorneys start the beginning of divorce cases attempting to reach a settlement or agreement resolving all of the issues in the case.  This includes custody, division of property, retirement accounts, debts, spousal support, etc.  Here's a bit about what to expect during a settlement conference.

There are two major types of settlement conferences.  The first method is to do a 4-way settlement conference, meaning both parties and both attorneys are present.  Typically, this happens in a conference room at an attorney's office.  The attorneys will start to work through each issue to see if the parties can agree on some things.  During this, there tends to be a lot of emotion, as you are literally sitting across the table from your soon to be ex-spouse.  Of course, at any time, you and your attorney can step out and have private conversations.  This tends to work in more amicable situations when there is less anger involved.

Personally, I prefer the second method of a settlement conference: judicial settlement conferences.  In Virginia, a pending case can be referred to a retired judge to help facilitate settlement.  Typically, in these cases, the attorneys will write out a settlement proposal, i.e., what their client wants to see happen with property and custody, and submit it to the judge ahead of time.   Remember each judge conducts these a little bit differently.  However, typically, once you arrive, the judge will me with both parties and both attorneys in a conference room - these tend to be held at the courthouse.  The judge will go over the process and explain how he prefers to conduct his settlement conferences.  In most cases, the judge will ask each attorney, or if the party prefers, each party, to give him a general idea of what the issues are and how we can all resolve them.  After that, the judge will meet with each party and their attorney separately.  At this point, it is a back and forth between each party as the judge tries to narrow the gap to reach a settlement.

To give you a real life example of this, Wife may come into a settlement conference requesting $5,000 per month in spousal support for 10 years and Husband may come into the settlement conference saying he will pay no more than $3,000 per month in spousal support for 8 years.  What the judge might do, is bring the parties closer together and encouraging each of them to budge a little bit, so maybe we could all consider $4,000 per month for 9 years and compromise.  The reason this works is because no one can know what a judge will do if you take your case to trial.  The judge could award $8,000 per month for 15 years or the judge may simply deny spousal support.  So, when Wife and Husband are in control of their situation, most people would prefer to agree to something a little higher or lower than they originally wanted rather than risk going to trial and having no control over what a judge will do.

Assuming the parties can reach an agreement, at the end of the settlement conference, one of two things will happen.  If practical, the attorneys may draft the agreement on the spot and have both parties sign it that day.  In many cases, however, that simply isn't practical.  So while you will leave the conference with an agreement, the attorneys will go back to their respective offices, draft a full property settlement agreement and then have the parties sign it at a later date.

Settlement Conferences are important and serious but to calm your nerves, remember this meeting is all about agreement.  You will not be forced to agree to something you don't want to and no rulings will be made by a judge that day.  So take a deep breath and prepare to give and take a little bit.