Guardianship Changes

, , , ,

Guardianship of an incapacitated person refers to the authority to make decisions on behalf of an adult individual who has been adjudicated as such by the court. The standard for incapacity involves an analysis of whether the individual can manage their financial resources and/or meet essential requirements for their own health and safety. The first step for a party interested in pursuing guardianship of someone is to file a petition with the court. At the time of filing the petition, the proposed guardian must now submit record of criminal background search from the Pennsylvania State Police. Additionally, if the incapacitated person suffers from mental health issues, a notice of mental health commitment form should be included.

The opinion of a medical expert regarding the extent of the incapacity and the potential necessity for a guardian is required. The Rules now provide for the expert to complete an expert report which may replace requirement of physical testimony in court. The Petitioner has the burden to prove incapacity by clear and convincing evidence. Notice of the hearing and a copy of the petition must be served on the individual for whom guardianship is sought (Respondent) explaining in plain language the possible ramifications of the forthcoming legal proceedings. Notice must also be given to additional interested parties such as family members.  By April M. Townsend

 

by

How do you divide retirement assets in divorce?

, , ,

Pensions, as well as other retirement plans, are often one of the assets up for division in a divorce. The court will equitably divide the marital portion of a pension plan after considering all the relevant factors in equitable distribution. The marital portion of a plan would be the portion that accrued from the date of marriage through the date of separation. In some cases, the entire pension will be marital depending on the timing of the marriage alongside the start date of the pension plan. A qualified domestic relations order, or QDRO for short, is a document used to effectuate division of certain retirement benefits.

A QDRO can facilitate a tax-free transfer of retirement benefits from one party to their new or soon-to-be ex-spouse. The receiving spouse would then be taxed as they withdraw the money as the tax laws provide. The exact nuances of how the plan/benefit is split and what options are available will vary based on the type of plan. It is always advisable to review the procedures for the specific plan you may need distributed to understand what their rules and policies are when it comes to splitting a participant’s benefits via QDRO in the context of a divorce. You will also benefit from having an experienced family law attorney review the terms of the QDRO before you sign off on it and submit it to the Plan Administrator for implementation. Finally, most plans have very specific requirements as far as how the language of the QDRO is to be worded in order for it to be accepted and processed. At a minimum, a QDRO should identify the parties, the plan at issue, and the amount going to the receiving party either as a lump sum or a percentage of the total benefit. It is wise to enlist the services of an expert that routinely drafts QDROs to ensure the language is correct and all requirements are met.   By April M. Townsend

by

How to Place a Child for Adoption

, , , ,

There are two options to place a child for adoption. The first option is to surrender the child to the appropriate agency. This can include the county social services agency or private adoption agency. Under 23 Pa C.S. 2501, written notice of intent to give custody of the child to the agency should be presented to the agency. The natural parents should also cooperate in petitioning the court for permission to voluntarily relinquish their parental rights to the child. The agency must consent to accept custody of the child. To the extent the natural parents are under 18, the consent of their parent(s) is not required.

Natural parents may also elect to surrender the child to an individual. The individual(s) accepting custody of the child will need to file a report of intent to adopt as well as sign a consent accepting custody of the child. They will also need to follow the other procedures for adoption which include getting necessary clearances as well as getting a home study, where applicable. Again, the natural parents should cooperate in petitioning the court for voluntary relinquishment of their parental rights. Alternatively, if the natural parents are consenting to the adoption, a petition for confirmation of consent can be filed instead. The court will schedule a hearing following receipt of petition for voluntary relinquishment or confirmation of consent. Notice of the hearing date must be served on natural parents as well as their parent(s) if they are still minors at the time. The natural parents should appear at the hearing. The court may enter a final decree of termination of parental rights after the hearing.  By April M. Townsend

by

Guardianship of a Minor Child

, , , ,

A guardian can be appointed to make decisions on behalf of a minor child. Temporary guardianships can be put in place without a court hearing. The guardianship would transfer the authority to make decisions for a minor child from the existing parent/guardian to another person for a limited time. A written agreement is required to identify exactly what authority is being transferred under the guardianship. Ideally, the agreement should be notarized in addition to being signed by all parties. The parties need to be of sound mind when signing the agreement.

Temporary guardianships can be revoked at any time.  For this reason, it is important to work towards other legally enforceable means for retaining custody of the minor if that is the goal. Temporary guardianships can be used so that prospective adoptive parents can take care of the intended adoptee while the adoption hearing is pending. This would enable the adoptive parents to make any medical decisions, enroll the child for school, etc.  Once parental rights are terminated, custody of the child is put with the prospective adoptive parents by court order. Once an adoption is approved, the prospective parents have final custodial rights over the child just as if they were the natural parents.  By April M. Townsend

by

Gifts of Assets

, , , , ,

Each individual is permitted to gift $15,000 in assets each year without tax implication. $15,000 is the annual cap for federal gift tax purposes. There is not a gift tax in Pennsylvania. Even individuals who gift above this yearly threshold, may not need to pay taxes. Amounts in excess of the yearly limit can be assessed against that individual’s lifetime gift tax exclusion. Presently, the lifetime gift tax exclusion is 11.18 million. Most individuals will not exceed that sum over the course of their lifetimes.

You should be aware that gifts made within a year of death may be subject to Pennsylvania inheritance tax depending on the amount and nature of the gift. There are some gifts that are non-taxable and do not count against your annual exclusion or lifetime exemption. Gifts between spouses can be unlimited. Payments for tuition or medical expenses paid directly to respective institution or facility on someone’s behalf are not taxable. Gifts to political organizations and charities are also under the umbrella of non-taxable gifts. Any individual making a taxable gift above the annual exclusion must complete Form 709, the Gift Tax Return. Filing of the return does not mean any taxes are due however if still within your lifetime exemption. Consult with an experienced estate planning attorney to make further understand your options in making gifts as part of your estate plan.  By April M. Townsend

by

Foreign Adoption Decree

, , ,

A foreign adoption decree is a decree issued from another country regarding adoption that took place abroad. If you have adopted a child from abroad, you can take steps to register that foreign adoption here in the United States. Pennsylvania discusses the applicable steps in 23 Pa. C.S. Section 2908. The adoptive parents can file a properly authenticated copy of the foreign adoption decree along with copy of child’s via and birth certificate in the county where the adoptive parents reside. The adoption decree should be translated into English where applicable. If there is no birth certificate or other birth record for the adoptee, the parents may submit an affidavit instead.

The court is to supply a foreign adoption registration form for adoptive parents to use. The form should include information on how to obtain an adoption decree from the Commonwealth. Where the court is satisfied that a full and final foreign adoption was completed, they would enter the decree on the docket and issue a certificate of adoption to the parents. If the court is not satisfied that a full and final adoption took place, instructions regarding re-adoption are to be provided to the parents. All records submitted to the court to register a foreign adoption are maintained by the court and sealed. Filing fees may be assessed by the county for this procedure.  By April M. Townsend

 

by

Foreign Adoption

, , , ,

If you have adopted a child from abroad, there are several steps to take to finalize the adoption domestically. A re-adoption being filed in the United States can serve a few purposes. It can allow for an adoption decree that is in English. It can be required for immigration purposes. It may also be helpful for effectuating a name change of the child if not already completed.

The procedure for re-adoption in Bucks County is similar to domestic adoptions. It begins by filing a Report of Intent to Adopt. There is only one post-placement visit required that is usually completed by the agency the parties worked with for the foreign adoption. Once report is completed, petition for adoption can be filed. Copies of all the foreign documents (ex. Birth certificate, decree of guardianship, adoption decree) shall be translated if necessary, certified, and presented to the court for adoption hearing.

An alternative to refiling for adoption is to have a foreign decree of adoption registered with a local court. For this option the parents would file a certified copy of the foreign adoption decree with the court. It should be noted that no English language adoption decree will be issued, and the other issues addressed above will not be automatically resolved. A Pennsylvania birth certificate can be acquired through registration of a foreign adoption if at least one of the parents signs a statement regarding their US citizenship and PA residency. This allows the local court to register the foreign adoption with the Division of Vital Records as well.  By April M. Townsend

by

Father’s Consent to Adoption

, , ,

Pursuant to 23 Pa. C.S. Section 2711(a), a consent must be signed by the following individuals where applicable: (1) the child(ren) being adopted if over 12 years of age; (2) the spouse of the adopting parent if that spouse is not also a petitioner; (3) the natural parent(s) of any minor child(ren) being adopted; (4) the guardian of an incapacitated child up for adoption; and (5) the guardian of a minor child or persons having custody when the adoptee has no parent whose consent is required. Subsection (c) discusses specific time limitations as to when a consent can be signed however these time limitations are directed towards the natural mothers. A consent cannot be executed by a birth mother within seventy-two (72) hours of the birth.

A putative father can consent at any time after receiving notice of expected or actual birth of the child. A putative father is one whose legal relationship with the child has not been established but suspects he is the father born to a woman that he is not married to at the time of the child’s birth. A putative father is distinguishable from a birth father whose legal relationship with the child is established due to marriage to birth mother. A birth father would also need to wait a minimum of seventy-two (72) hours before executing a consent for it to be valid. Consent may be executed outside of Pennsylvania and still recognized here if executed in accordance with the law in the location where it was signed. The consent is irrevocable thirty (30) days after signature absent proof of fraud or duress.

 

by

Family Settlement Agreement

, ,

The family settlement agreement is a document that can be filed at the conclusion of administration of an estate wherein the beneficiaries accept their distributions and release the executor or administrator from any liability for their handling of the estate. Often, an informal accounting will accompany the settlement agreement so all interested parties can review the administration of the estate. The document would also clearly state the distributions of the net assets of the estate. With respect to cash assets, this may be accomplished by specific dollar amount or by percentage.

One of the benefits of finalizing estate administration by agreement is fewer filing fees and legal fees since less paperwork is filed with the court and a court hearing is not required. Executors or administrators should still publish notice of the estate for any potential creditors and wait one (1) year before distribution. It is possible to allow distributions prior to the one year mark from notice of the estate. In that scenario, it is important to include language that beneficiaries will return funds as needed if a valid creditor is subsequently identified and makes a timely claim against the estate.

by

What Happens to the Family Pet?

, , ,

Many people consider their pets as members of the family and accordingly, when the family breaks up, custody of the pets can become an issue. While pets may be considered members of the family from the perspective of the owners, the courts in Pennsylvania deal with pets the same way as they deal with other inanimate personal property in the event of a divorce.

Parties can elect to enter an agreement on who will get the family pet or if there is a schedule to share the pet. This written agreement should be submitted to the court so that in the event either party does not comply, the disgruntled party can file for contempt and the court can assist in enforcing the agreement. The other option is to seek court intervention. This would require raising a count for Equitable Distribution in the Divorce Complaint. If you must go this route, understand the court will give the pet to one spouse or the other just as it would any other personal property such as furniture or TVs. Increase your likelihood of retaining your pet by showing you were the party that purchased the pet and/or you were the party that primarily cared for the pet in terms of vet appointments, grooming, etc.

 

 

 

by