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What happens when someone is no longer able to care for themselves? Or they are a danger to their own well-being? Under Pennsylvania law, the court can appoint a guardian to make decisions for the protected person, whether an adult or a child. Guardians have a legal responsibility to make decisions in the best interest of the protected person. A guardianship proceeding is filed by a person called the “petitioner”. This person is not always appointed as the guardian. Who May be the Petitioner? A petitioner may be any person interested in the alleged incapacitated person’s welfare. This may include family, friends, neighbors, an attorney, or other professional with a relationship with the person to be protected. Guardianship petitions are often filed by the local area agency on aging, or by hospital, nursing home, or other health care provider. Courts are mindful that in certain cases a petition may be filed by someone who is not acting in the best interests of the person to be protected. Sometimes a creditor, a nursing home, or certain family members (including a spouse contemplating a divorce) may file a petition for an improper purpose, such as to deprive the person of rights. The court may dismiss a proceeding where it determines that the proceeding has not been instituted to aid or benefit the protected person. Who Can Be Appointed as a Guardian? Any qualified individual, corporate fiduciary, non-profit corporation, or county agency may serve as guardian. If no other person is willing or qualified to serve, a guardianship support agency may be appointed by the court. If appropriate, the court shall give preference to a person suggested by the incapacitated person. The guardian must not have interests that conflict with those of the incapacitated person unless no alternative exists. The selection of a guardian for a protected person is a decision that will have a significant impact on the person’s life and well-being. The guardian of the person will determine where the protected person lives and make medical decisions on their behalf. Selecting a responsible and capable guardian can be a challenging task, particularly where there is conflict among family members or other care providers. Qualities needed by a guardian of the estate may differ from those needed by a guardian of the person. Important Qualifications of a Guardian of the Estate Responsibility and trustworthiness; Understanding of obligation to manage funds as a fiduciary on behalf of another; Ability to manage, invest, and expend funds appropriately, considering the size of the estate and the nature of expected expenses; Ability to engage appropriate tax, accounting, investment, and financial planning professionals, as needed; Ability to create a plan for the short- and long-term needs of the protected person; Understanding of the obligation to keep the IP’s funds separate and to account for the protected person’s funds, on an annual report and, if required, in an account to the court; Ability to manage real estate and pay appropriate expenses; Ability to apply for and obtain state and federal benefits including medical assistance; Ability to handle possible additional future responsibilities; No conflict of interest; and Ability to communicate with an IP and their family who are limited English proficient or to provide interpretation and translation services. A Family Member is Preferred as Guardian When considering whom to appoint as a guardian of the person, the law requires the court to consider individuals in the following order of priority, provided any such individuals are available and suitable and have no conflict of interest: The guardian of the estate (if already appointed); The spouse, unless estranged or an action for divorce is pending; An adult child; A parent; The nominee of a deceased or living parent of an unmarried AIP; An adult sibling; An adult grandchild; Other adult family member; An adult who has knowledge of the AIP’s preferences and values, including, but not limited to religious and moral beliefs, and would be able to assess how the AIP would make decisions; or Other qualified proposed guardian, including a professional guardian. Although the court must be mindful of these priority lists, the court retains discretion to determine whether any family member or friend would be appropriate and best suited to serve as a guardian under the particular circumstances. Key Quality for Guardian: The court will often inquire about the length, depth and nature of the relationship between the protected person and proposed guardian in order to guard against appointing someone who may be seeking to take advantage of the protected person. A family member who is only more recently involved in the protected person’s life will be viewed with some amount of skepticism by the court. Consult with a Guardianship Lawyer Today If you have questions about legal guardianship in Pennsylvania, we recommend consulting with a lawyer experienced in guardianship proceedings and elder law. At Fiffik Law Group, our skilled lawyers have helped many clients in the area navigate the guardianship process. Whether you are pursuing becoming a guardian or objecting to a guardian, we can help. Contact us today to schedule your initial consultation. Read More:

Congratulations! The court has appointed you the guardian. You are done filing things with the court now, right? Not quite. Guardians have many responsibilities to care for the Incapacitated person. These include filing initial reports with the court and periodically thereafter. This article is intended as an overview of your responsibilities as guardian. Read the Court Order Appointing You Guardian of the Person First, you should carefully read the Court Order appointing you as a Guardian, which is usually called a “Final Decree.” You may be authorized to use power in certain limited ways, unless you have been appointed as a “Plenary” (full) Guardian of the Estate and/or Person. The Court’s Final Decree may specify that the Guardianship is either “Plenary” or “Limited.” If it is Limited, the Final Decree will identify specific limitations. If your appointment is subject to limitations you should be careful not to exceed them. To take actions on behalf of the Incapacitated Person, you may need to obtain a Guardian’s Certificate or a certified copy of the Court’s Final Decree (you can obtain this from the Register of Wills or Clerk of the Orphans Court). The Guardian’s Certificate confirms that you have been appointed by the Court and that you are still serving. The cost for these documents may be paid from the assets or income of the Incapacitated Person. Plan of Supportive Services Where appropriate you should assist in the development of a plan for supportive services for the Incapacitated Person. The plan should explain how the services will be obtained. Supportive services could include nursing, physical therapy, rehabilitation, meal preparation, cleaning, bathing, and other daily needs of the Incapacitated Person. Encouragement of Incapacitated Person to Participate in Decisions You should encourage the Incapacitated Person to participate in making decisions about their care to the maximum extent possible. Tell them what they need and the options you’ve found. Ask their opinion or preference about them. You should also encourage the Incapacitated Person to act on their own behalf whenever they may be able to do so. You also should encourage the Incapacitated Person to develop or regain their capacity to manage their personal affairs as much as possible. General Care, Maintenance and Custody of the Incapacitated Person A Plenary (full) Guardian of the Person has general responsibility for the care, maintenance, and custody of the Incapacitated Person. Your primary guiding principle should be to do what is in the best interests of the Incapacitated Person, even when that might conflict with your personal beliefs or interest. If the best interests of the Incapacitated Person conflict irrevocably with your strongly held personal beliefs or interests, you may, and should, apply to the Court for guidance or to be relieved of your duties. Your duty in this regard extends to objections by the Incapacitated Person. For example, it may be in the Person’s best interest to relocate to a senior living facility. Even if the Person strongly opposes it, if its in their best interest, you should take that action. You must also avoid any actual or even appearance of conflict of interest in determining and acting in the best interests of the Incapacitated Person. Guardians must not take advantage of their position and act in their own interests rather than the individual’s interests. They must not commingle their own funds with those of the individual (with certain exceptions). A guardian must not sell or convey the individual’s property to the guardian, the guardian’s family, or any entity in which the guardian has an interest. An appearance of conflict of interest is a situation that a reasonable person might perceive as self-serving or adverse to the interest of the incapacitated person individual. Place for Incapacitated Person to Live A Plenary Guardian of the Person can select where the Incapacitated Person will live. You should encourage the Incapacitated Person to express preferences and to participate in this decision to the maximum extent possible. If the Incapacitated Person is unable to participate in making this decision, you should make a decision that you conclude is in the best interests of the Incapacitated Person. You should consider the safety of the Incapacitated Person and the ability of friends and family members to visit the Incapacitated Person when choosing the place where the Incapacitated Person will live. Visiting the Incapacitated Person There is no specific legal requirement regarding the number or type of visits you should make to the Incapacitated Person, however it is expected that you would visit in person at least once every three months, and preferable once each month. In addition to periodic visits, you may need to visit when medical decisions must be made, or to observe any new concerns, behaviors or needs. You are expected to know the needs of the Incapacitated Person and to have a good idea of their health and emotional status, in order to make informed decisions for them. Therefore is important that you see them frequently enough to feel comfortable making those decisions. Responsibility for Training, Education, Medical and Psychological Services of the Incapacitated Person A Plenary Guardian of the Person should assist the Incapacitated Person in the development of the as much self-reliance as is possible. The Court’s Final Decree may give you specific responsibilities regarding the training, education, medical, and psychological services needed by the Incapacitated Person. You should also consider and provide appropriate social and vocational opportunities. Again, your guiding principle is the same: the best interests of the Incapacitated Person. Consideration of the express wishes of the Incapacitated Person their family members is appropriate where it does not conflict with this principle. You should participate in supportive services to the extent that you are able. Consents/Approvals for the Incapacitated Person The Order appointing you as Guardian may give you the authority to enter consent or approval for various medical, surgical, psychological or other treatments for the Incapacitated Person. As always, you should try to follow the express wishes of the Incapacitated Person and family members to the extent that these do not conflict with the best interests of the Incapacitated Person. Your independent judgment on these issues should not be overridden by family wishes. Note that no Guardian has the authority to admit the Incapacitated Person to an inpatient psychiatric facility or to consent to the relinquishment of parental rights of the Incapacitated Person. In addition, you may not consent to the following procedures or practices for the Incapacitated Person unless and until a Court approves it: Consent abortion, sterilization, psychosurgery, electroconvulsive therapy or the removal of a healthy body organ of the Incapacitated Person. Stop a marriage or consent to a divorce of the Incapacitated Person. Consent to the performance of or participation in any experimental biomedical or behavioral medical procedure by the Incapacitated Person. End of life decisions. Annual Report You are required to file an Annual Report each year, on the date that is the 12-month anniversary of your appointment as Guardian of the Person, and annually after that for as long as you remain Guardian. You can obtain a copy of the Annual Report form at the office of the Clerk of the Orphan’s Court in the County where the Order was issued. A filing fee is typically payable, however if the Incapacitated Person has no assets and is indigent, you may be able to file the Annual Report without the filing fee. In order to do that you will need to file a Petition to Waive Fees and receive a Court Order waiving fees. In the Annual Report you should describe in detail the following: The current address and type of placement of the Incapacitated Person. The major medical or mental problems of the Incapacitated Person. A brief description of the living arrangements, social, medical, psychological, and other supportive services being received by the Incapacitated Person. Your opinion as to whether the guardianship should continue, be terminated or modified, supported by your reasons for this opinion. The number of length of times you have visited the Incapacitated Person during the last 12 months. Final Report Within sixty (60) days of the death of the Incapacitated Person or if the Guardianship is vacated, you are required to file the Final Report. The same form used to file the Annual Report is used to file the Final Report. What Training Exists for Family and Other Non-professional Guardians? Serving as guardian is one of society’s most challenging roles, yet in most states and localities, family and other non-professional guardians receive little or no instruction or assistance. They are unfamiliar with the court system and the guardianship role, and don’t know what is expected of them. They come to a demanding responsibility generally unprepared and often with nowhere to go for help. However, a growing number of state and local courts have developed training resources including online curricula, handbooks and videos. A few states such as Florida, New York and Ohio require training for non-professional as well as professional guardians. The federal Consumer Financial Protection Bureau has developed a plain language guide for non-professional guardians of property called Managing Someone Else’s Money: Help for Court-Appointed Guardians of Property and Conservators. The National Guardianship Association has published The Fundamentals of Guardianship: What Every Guardian Should Know (2017). Consult with a Guardianship Lawyer Today If you have questions about legal guardianship in Pittsburgh, we recommend consulting with a lawyer experienced in guardianship proceedings and elder law. At Fiffik Law Group, our skilled lawyers have helped many clients in the Pittsburgh area navigate the guardianship process. Whether you are pursuing becoming a guardian or objecting to a guardian, we can help. Contact us today to schedule your initial consultation. Read More:

A Guardian of the Person is someone appointed by the Court to manage the life decisions, including health affairs, of an Incapacitated Person. A Guardian of the Person makes decisions to protect the health, safety, and welfare of the Incapacitated Person. For example, an Incapacitated Person might not be able to remember if they have eaten or taken medication, or might no longer be able to cook for themselves. The Guardian of the Person may be authorized by the Court to make decisions about where an incapacitated person shall live, who shall prepare meals, and to make decisions about consenting to medical and surgical procedures. The Guardian of the Person does not manage the finances, property or income of the Incapacitated Person unless the same person is appointed as Guardian of the Estate. Two Types of Guardians of the Person There are two types of Guardians of the Person: 1. Limited Guardian of the Person A Limited Guardian is given only those powers and responsibilities specifically identified by the Court in the Court’s Final Decree. 2. Plenary (full) Guardian of the Person A Plenary Guardian is given the full authority to make all decisions for the Incapacitated Person. Regardless of which type, the Guardian’s primary responsibility is to represent the rights and best interests of the Incapacitated Person. The expressed wishes and preferences of the Incapacitated Person should be honored to the greatest extent possible. If, however, those wishes conflict with what is in the best interests of the Incapacitated Person, the Guardian should follow their independent judgment to the extent necessary. For example, the Incapacitated Person might strongly wish to remain living alone at home, but this might not be safe living arrangement for them. In such a case, the Guardian’s responsibility to do what is in the best interests of the Incapacitated Person, even if that means moving them to a senior care facility that is more likely to keep them safe and healthy. Consult with a Guardianship Lawyer Today If you have questions about legal guardianship in Pittsburgh, we recommend consulting with a lawyer experienced in guardianship proceedings and elder law. At Fiffik Law Group, our skilled lawyers have helped many clients in the Pittsburgh area navigate the guardianship process. Whether you are pursuing becoming a guardian or objecting to a guardian, we can help. Contact us today to schedule your initial consultation. Read More:

What are my Risks When Using Car-Sharing Service? It may come as a surprise that even if you do not own a vehicle, you still may need a car insurance policy. If you regularly drive a car that you don’t own, such as a short-term rental (think Zipcar, Turo) or borrow friends’ cars and cause an accident, you could be on the hook for huge out-of-pocket expenses. Car-Sharing is Booming Car sharing is a type of car rental that allows you to rent a car at any hour. It is more convenient for those who need a car for a shorter period of time. You are only billed for the usage (how far you have traveled). Car sharing is booming with 6 million users currently and almost $3 billion in revenue. As cars become more expensive and less affordable for urban people, utilization of car sharing is projected to steadily increase over the next five years. What are my Risks While Driving a Non-Owned Car? Many people using a car-sharing service or borrowing a car never give their personal liability a second thought. They may have the mistaken belief that if they cause an accident, the car owner’s insurance will cover the expenses. That’s an unwise assumption. If you fit into any of the following categories, you’re at risk and should consider a non-owner’s policy: Frequent Renting or Car-Sharing If you find yourself frequently renting or using car-sharing companies or apps (think Zipcar or Turo) a non-owner’s policy may be beneficial. A non-owner’s insurance policy will extend to any cars rented and provide coverage beyond that of the rental company or the car-sharing app, which usually only provide the minimum level of coverage required. Additional liability insurance through a rental company can be costly and a non-owner’s policy may be a more affordable solution for better coverage. Frequent Borrowing If you are borrowing a car from a friend or relative, the owner’s insurance policy may provide coverage, but the extent of the coverage depends on the owner’s policy. It may be worth investing in a non-owner’s policy to better protect yourself in the event of an accident. New Drivers or Drivers Reinstating a Suspended License. Additionally, you may be required by the state to obtain a non-owner’s insurance if you are a new driver who is just getting your license later in life or if you are reinstating your license after a suspension. If the state deems you a “high-risk driver,” you will be required to carry the minimum amount of car insurance required by the state before obtaining your license. If you don’t own a vehicle, a non-owner’s policy will meet the state requirements at a reasonable cost. Temporarily Between Cars. Finally, if you find yourself temporarily without a vehicle, a non-owner’s insurance policy can shield you from the fees that are associated with a lapse in coverage. Some companies see a lapse in coverage as a red flag and will charge higher rates when you purchase a new owner’s policy. Not only will a non-owner’s policy protect you against the higher rates, but it will also provide coverage when you’re test-driving vehicles to find your new car. What is Non-Owner’s Insurance? A non-owner’s insurance policy is cheaper than a traditional auto insurance policy but typically doesn’t cover damages to the vehicle you are driving or to your own injuries which may occur during an accident. However, policies generally provide liability coverage for personal injuries and property damages to others in the event of an accident. In other words, if you’re at fault for an accident while driving in a car you don’t own, the policy can cover the damages to other drivers that you would otherwise be liable for. Depending on the coverage selected, the policy may also include uninsured or underinsured motorist protection, which can cover injuries caused by a driver without any or enough liability insurance. I think I need a Non-Owner’s Insurance Policy, what do I do now? If you think a non-owner’s insurance policy may be right for you, you should get a quote from several insurance companies to find which policy, and price, is right for you. Most insurers don’t offer quotes for non-owner’s policies online, which means you may have to call a company or agent to assist you. Be sure to take your time to find a policy that fits your needs to better protect yourself in the event of a car accident. Contact us for more information.

More than 1.6 million Pennsylvanians care for older parents, spouses or other loved ones, helping them to live independently in their own homes. These family caregivers have a huge responsibility. Caregivers who go into a caregiving arrangement prepared for the legal issues they’ll face are less likely to experience significant stress and other financial repercussions. Below is our “to-do” list of legal issues and tasks for family caregivers to address before or early on after accepting caregiving duties. Taking Time Off of Work Being a caregiver is a demanding job, and often requires workers to take time off from their own jobs to provide care. Fortunately, there are a number of laws that provide protection for caregivers. The Family and Medical Leave Act, for example, provides up to 12 weeks of unpaid leave for workers who need to care for a family member with a serious health condition. The effects of the FMLA on employees’ financial stability can be detrimental. While your employer may be required to give you time off work, you are not entitled to get your salary during the time off. So make sure that it’s worth any potential loss by carefully examining whether taking advantage of the FMLA is really necessary before acting. Other laws, such as the Americans with Disabilities Act and the Older Americans Act, provide protections for caregivers who have disabilities or who are caring for elderly family members. These laws ensure that caregivers have the time they need to do their job without fear of losing their own job. Legal Documents Clearly written legal documents that outline your loved one's wishes and decisions are essential. These documents can authorize someone, including the caregiver, to make health care and financial decisions for your loved one, including plans for long-term care. If the person being cared for has the legal capacity — the level of mental functioning necessary to sign official documents — they should actively participate in legal planning. To give your loved one the best care possible, obtain legal advice and services from an attorney. If the person you're caring for is age 65 or older, consider hiring an attorney who practices elder law, a specialized area of law focusing on issues that typically affect older adults. As you plan for the future, ask the attorney about the following documents: Power Of Attorney This document gives a person (known as the principal) an opportunity to authorize an agent (usually a trusted family member or friend) to make legal decisions when the principal is no longer competent. There is no standard power of attorney (avoid the DIY power of attorney); thus, each one must be drafted for an individual's situation. It is important for the caregiver to be very familiar with the terms of the power of attorney because it spells out what authority the caregiver does and does not have. The agent should make multiple copies of the document and give one to each organization or company with which the principal does business. Durable Power Of Attorney For Healthcare This document appoints an agent to make all decisions regarding health care. These decisions include those regarding health care providers, medical treatment, and—in the later stages of the disease—end-of-life care. A durable power of attorney for health care allows the agent to authorize or refuse any medical treatment for the principal. This power only goes into effect once the principal is unable to make decisions for himself or herself and is activated by the principal's attending doctor. Living Will A living will allows a person to state, in advance, what kind of medical care they desire to receive and what life-support procedures he or she would like to withhold. This document is used if a person becomes terminally ill and unable to make their wishes known. A terminal illness is defined as one from which a person's doctor believes there is no chance of recovery. A living also can be used if a person becomes permanently unconscious. To be considered permanently unconscious, a patient must be viewed as having no reasonable possibility of regaining consciousness or decision-making ability. Two doctors must make this determination. Laws on living wills vary from state to state. Living (or Revocable) T rust This document enables a person (called a grantor or settlor) to create a trust and appoint a trustee to carefully invest and manage trust assets once the grantor is no longer able to manage finances. A person can appoint another individual or a financial institution to be the trustee. Once the grantor passes away, the provisions of the trust provide for the management of the grantor’s estate, avoiding the costs and delays that are often associated with probate. Will A will is a document created by an individual that names an executor (the person who will manage the estate) and beneficiaries (those who will receive the estate at the time of the person's death). Include Family in the Conversation Early A stressful conversation for any family is what happens to the money when a parent becomes ill, and who will serve as the primary caregiver. One method for discussing difficult topics is holding a family meeting. The caregiving team meets in a comfortable place, seated around a table with room to spread out documents under discussion. (Using technology such as Zoom may help to include family members who live far away.) A well-organized meeting can provide the family members with shared support and a better understanding of the decisions to be made. When planning the family meeting, its important to include all necessary members. One question to consider is whether the person receiving care will attend. If your loved one has a cognitive condition (Alzheimer's disease or another dementia, for instance), consider whether or not they have the capacity to understand the discussion and whether its likely to be upsetting. Are there “hot-button” issues not to be discussed in their presence? How critical is it for them to participate in decisions made on their behalf? Attending all or part of the meeting may allow the care receiver to build trust in the caregiving team. This can help later with their cooperation when tougher decisions must be made. Before the meeting, it’s best to set times and dates convenient (as much as possible) for everyone’s schedule, then create your meeting agenda. Here’s a suggested list of topics to keep the discussion on track: Definition of the caregiver's role, with tasks clearly delineated Compensation for caregiving, including how it will be paid (weekly, monthly, lump sum?) Financial changes to the family estate (present and future impact) Who holds Power of Attorney? Who will serve as a backup should the caregiver become sick or need respite? Are there Medicaid “spend down” or “look back” period considerations? Is there a Health Care Power of Attorney? Who among the family is entitled to medical or financial information about the care receiver? How does the care receiver perceive their quality of life and independence?(What are their wishes?) What is the plan if it becomes time for placement in a residential facility? If possible, record the meeting or have someone take notes. You might distribute meeting notes to other family members for future reference. Include decisions that were made during the meeting as you many need to refer to them later when questions arise. Consider building a “caregiving” binder that contains necessary documentation. One person should facilitate the meeting to keep the discussion moving or to set boundaries if the discussion gets out of hand. Some families choose to use an outside facilitator, a social worker, clergy member, geriatric care manager, or another person without a vested interest in the meetings outcomes. More than one meeting may be necessary. Ensure That All Records List The Main Caregiver’s Name and Contact Information At every doctor’s appointment with an elderly family member or friend, check that the record lists your name and phone number, and ask that you be contacted in any kind of emergency. Consider Limiting Access to Financial Information, Especially For Memory Care Patients There are some individuals that may try and take advantage of a person suffering from dementia or the person themselves can put their own funds at risk. Consider giving limited access to the person to pay small bills while holding back access to larger funds such as retirement funds, stocks, etc. In some cases, banks have their own documents that need to be signed for this kind of money management. Again, put this in place as soon as possible so that the documents can be signed before they are unable. You Should Be Given Access to Medical Records and Information. Misunderstanding of the medical privacy act known as HIPAA (Health Insurance Portability and Accountability Act) is common and creates barriers to family caregivers getting information they need to oversee a loved one’s care. In fact, medical institutions are obligated to hand over information when an older adult has granted a caregiver a durable power of attorney for health care decisions or a HIPAA authorization specifying that they receive access to medical materials. Pennsylvania’s CARE Act (Caregiver Advise, Record, Enable Act) enables an individual who is an in-patient in a hospital to designate a “lay caregiver” to receive medical information about the patient. Learn more about the CARE Act. Accusation of Abuse or Neglect As a caregiver, you are tasked with the important responsibility of providing care and support for another person. Unfortunately, this role can also come with certain legal risks. One of the most serious is the risk of being accused of abuse or neglect. Depending on the laws of your state, you may be required to report any suspicion of abuse or neglect to the authorities. You may also be required to participate in an APS investigation if one is opened. If you are found to have committed abuse or neglect, you could face criminal charges and lose your job. It is therefore essential that you familiarize yourself with the legalities surrounding this issue. By doing so, you can protect yourself and the welfare of those in your care. Here are some steps to take if you find yourself in this situation: Seek legal advice from an experienced attorney. Cooperate with any investigation that may be conducted by the authorities. Be prepared to provide evidence to support your innocence. Avoid contact with the alleged victim, their family members, or any other witnesses. Abuse and neglect allegations are serious matters that should not be taken lightly. If you are facing such allegations, it is important to take the accusation seriously and seek legal counsel immediately. We Can Help Caring for an older relative can be extremely taxing and necessitates a significant amount of time away from work. Luckily, there are several laws that would protect you from being fired by your employer. Legal issues for caregivers include ensuring that the care recipient is receiving the best possible care, maintaining accurate records of care, and protecting the caregiver’s own legal rights. Yet, the Caregiver legal issues are complex, and they differ from state to state, at and county to county. So, to be completely educated about your rights and duties, make sure you speak with one of the experienced elder law attorneys at Fiffik Law Group.

Yes, but in order to understand the benefits of avoiding probate, let’s review what probate is. What is Probate? Probate is a court-supervised proceeding that authenticates your Will (if you have one) and approves your named Executor so they can distribute your property and belongings. During the probate process, all your assets must be located and assessed for total value. Once that is done, taxes and debts are paid and the remaining value of the estate is distributed to your beneficiaries. In cases where there is no Will (meaning your estate is intestate), this process obviously becomes more complicated. Because there is no documentation stating your final wishes, you give up your right to decide who will administer your estate and how your assets will be distributed. What is the Purpose of Probate? Reasons for the probate process include prevention of fraud and protection of creditors and rightful beneficiaries of estates. Beneficiaries are entitled to notice of the estate administration and an accounting of all estate transactions. They also have access to all documents filed by the estate. If beneficiaries have any objections to how the estate is administered, the court is available to address those concerns. The probate process in Pennsylvania is a way to protect beneficiaries and creditors and to assure proper distribution of estate assets. Do All Assets Go Through Probate? No. Some people assume that if the deceased person had a will, it means they don’t have to go through probate. The assets would go directly to the people mentioned in the will. While this sounds nice in theory, it’s not the case. Whether a person does or does not have a will has no impact on whether their assets/estate must go through probate. The manner in which the assets are titled determines whether probate is necessary. If the assets must be probated, they will need to go through the probate process regardless of whether the person had a will. Assets held in joint ownership between spouses or with others with right of survivorship pass automatically to the survivor and are not subject to probate. Bank accounts held in joint ownership or in trust for another are also not subject to probate. Assets with designated beneficiaries such as life insurance policies, annuities, IRAs and various retirement plans pass to named beneficiaries and are usually not subject to probate. It is important to note that assets controlled by the decedent at death, even if not subject to probate, are still subject to all of the same death taxes as probate assets. What are the Costs of Probate? In Pennsylvania, the costs of probate include filing fees for opening the estate, advertising the estate, filing an inventory of estate assets and other papers to complete the administration process. These costs can range from $500 for a small estate to $1,500 for an estate of $500,000. In addition, legal fees are paid to the attorney handling the estate work, which may include preparation of various death and income tax returns. Attorneys fees range from 3-5% of the value of the decedent’s assets. The personal representative may charge a commission roughly the same as the attorney fee. For a $500,000 probate estate, all of these costs combined will exceed $30,000. Obtaining appropriate legal advice about the administration of the estate can help keep down costs as well as taxes. Legal counsel is also advisable in dealing with assets which pass outside of probate, such as when a living trust is involved. How Long Does Probate Take? The length of time depends on many factors including the type of assets in an estate, diligence of the personal representative and whether an experienced estate administration attorney is involved. Typically probate takes anywhere from 6 months to two years. If an Executor has experienced assistance, they can accomplish the administration of estates expeditiously. They are empowered to handle most details (liquidating assets, paying debts and expenses, etc.) without seeking court approval for each and every transaction. Personal representatives are required to file only an inventory of estate assets and periodic short status reports stating whether the estate administration has been completed. Accounting of estate transactions to beneficiaries and heirs may be accomplished informally (not involving the court) or formally (filed with the court). Practical Problems with Probate Problems can arise at many points of the probate proceeding and they can involve many different issues raised by a death. For example, some of the problems which may occur include: Probate requires fees to be paid to the court. A variety of fees must be paid, typically based upon the value of the assets in the estate. These are in addition to any death taxes payable on the transfer of assets. Excessive costs of administration. Because probate is a structured process involving the courts, attorneys fees and commissions to the personal representatives are typically somewhat high – usually not less than 5% of the value of the assets in the estate. Delayed access to the assets. Until the probate process is completed, the assets in the estate remain titled to and under the exclusive control of the personal representative. The beneficiaries have no access and cannot control, secure, enjoy, sell or rent out the assets. Real estate values can fall, houses become in a state of disrepair, stocks lose value. Delay can be costly. A person named as executor is unavailable or is not up to the job. While most people named as executors opt to carry out their role, some do not want this responsibility.  The named executor may have already passed away. If an individual who is named as executor opts out, the court may appoint someone to administer the probate proceedings. A challenge to the validity of the will. Sometimes, heirs (or potential heirs) believe that a will isn’t valid because it was made while the deceased was under undue influence or because it was made on the basis of fraud. These disputes can lead to lengthy and expensive litigation. Lack of information for beneficiaries. One of the most common complaints among beneficiaries is a lack of information and disclosure by the personal representative of the estate. This leads to mistrust and disputes. Allegations that an executor is not fulfilling his fiduciary duty. No executor has prior training to do their job. It’s not uncommon for executors to delay administration of an estate due to lack of diligence, incompetence or outright malfeasance. If an executor fails to appropriately manage assets, is caught taking the deceased’s assets, or otherwise fails to live up to his obligations, victims harmed by the breach of duty may be able to make a damage claim. How Does a Trust Avoid Probate? When a person establishes a living trust, they can place all their property and assets into that living trust. The revocable living trust, rather than the person, becomes the owner of everything held within the trust. The person who formed the trust maintains control over the assets and property in the name of the trust by virtue of being designated as the trustee. When the person who formed the trust passes away, a successor trustee takes over for the deceased trust-maker and that individual or legal firm assumes the responsibilities of administering the trust. When the trust is written, it designates beneficiaries, who generally are the children or other loved ones of the person who formed the trust. All the assets held within the trust would transfer to the beneficiaries or be held and administered according to the trust’s provisions. The main difference between a living trust and a will is that the living trust creates its own legal entity in which all of the property and assets are contained. A will merely designates the intent of the asset owner regarding to how they wish their property and assets to be distributed after their death. This process usually requires the involvement of the court because the property must be legally transferred from one person to another. The living trust avoids this because it is already established as legal owner of the property and the beneficiary is already established as a legal recipient of those assets. Deciding on a trust Choosing and creating a trust can be a complex process; the guidance of an attorney with estate planning expertise is highly recommended. For more information about trusts, join us for our monthly webinar “Trusts 101” where we discuss trusts in more depth. If you are interested in speaking with one of our experienced estate planning and elder law attorneys, contact us today to schedule an appointment.

By Michael Fiffik, Esquire When I ask parents if they have plans for who would care for their kids if they were to die or suffer a major health event unexpectedly, I’m always surprised at how many do not. “I know I should, but it keeps slipping down my to-do list,” one mother told me. Yet another said, “I don’t have anyone who I’d trust with my kids.” A married couple told me, “death isn’t an option for us.” I get it. Life is busy, and dying and major injury are not at the top of the list of things young people worry about. But bad things do happen, and though it’s impossible to prepare for many of them, making plans for your child’s care in the event of your untimely death is a concrete step you can take to help ensure their future well-being. Let’s be real for a moment: if you’re a single parent, every time you leave the house, your child is at risk. That may seem over the top, but it’s true. You are not alone. There are 10 million single-parent families in America today. Don’t “Waive” Your Right to Care for Your Kids One of your most important legal rights is the right to designate someone to care for your child when you are unable to do so. If you fail to act, you have basically “waived” this important right. You can designate a guardian in your Will to care for both the person and the estate of your children if you should pass away. This person is called a testamentary guardian. However, did you also know that Pennsylvania law allows you to designate a standby guardian if you should encounter some unforeseen circumstance other than death? This law is called the Standby Guardianship Act. Standby Guardianship Act The law allows a parent to designate a standby guardian for their children upon the occurrence of a triggering event. The law does not define a “triggering event” other than as a “specified occurrence stated in the designation which empowers a standby guardian to assume the powers, duties and responsibilities of guardian or co-guardian.” Thus, a triggering event might be “my death,” “my incapacity,” or “my absence from Pennsylvania for more than two weeks.” The law assumes, however, that a parent will use the power to designate a standby guardian when the parent is personally unable to care for their children. Without this designation in place and no natural parent around to care for your child, a whole bunch of uncertainty ensues. Child protective services may take your child and place them with foster parents. You cannot assume they’ll be placed with a relative (although it’s possible). Someone (hopefully) will file a petition with the court to be appointed as guardian of your child. Because you did not have anything in place, that person might not be the one you would have chosen. May not be someone with whom your child is comfortable or who does not share your faith or values. That proceeding will take between 60 to 120 days and the ultimate decision is left to the courts. The judge does not know you or your child. It’s an impersonal process. I can only imagine how difficult this must be for children – to lose a parent and have prolonged uncertainty about their future living arrangements. This law is not intended as a vehicle by which a child can be forced onto another, and the commencement of a standby guardian’s authority cannot by itself divest a parent of any parental rights or obligations. This law cannot be used by one parent to circumvent the legal rights of the other parent even if, for instance, the parent with primary physical custody of the children wants to designate a standby guardian other than the non-custodial parent. If both parents consent, however, they can together designate a standby guardian. The law also provides a mechanism to automatically take away the powers of a standby guardian if the parent who made the designation regains their capacity. Additionally, the parent can revoke the standby guardianship either before or after the standby guardian files a petition to have the guardianship confirmed. Here's What You Can Do The Standby Guardianship Act is a powerful tool in the arsenal of parents. Even if you have a will that designates guardians for your children, you should consider having a Standby Guardian designation. The primary reason is that a will is only effective in the event of your death. It is inapplicable to situations arising from your incapacity or absence for a prolonged period of time. In the event of your death, the guardianship provisions in your will are not effective until you will is filed with the courts. There is typically a delay between your death and the beginning of the probate process. A Standby Guardianship designation allows for the quick, easy transition of authority from a parent to a guardian in any situation. If you’re a parent anywhere in Pennsylvania and need help with custody or guardianship, or would like to discuss Wills, Powers of Attorney, Guardianships or general Estate Planning, the attorneys of Fiffik Law Group have the experience to represent you. Contact us today to schedule an appointment. We will be happy to advise you about all matters of Estate Planning.

Starting January 3rd, 2023, Pennsylvania Turnpike drivers could have their vehicle registration suspended if they have four or more unpaid tolls or if they have over $250 in unpaid dues. The statute of limitations for unpaid toll invoices will also be extended from three to five years. Governor Tom Wolf signed this bill into law in an effort to collect more unpaid tolls on the Pennsylvania Turnpike. With these new criteria, the Turnpike estimates that 25,000 more drivers’ vehicle registrations will qualify for suspension. If your vehicle registration is suspended, you cannot drive your vehicle or let anyone else drive your vehicle. The traffic violation for driving with a suspended registration is entitled "Operation Following Suspension of Registration” under Section 1371(a) of the Pennsylvania Motor Vehicle Code. The penalties for a Suspended Registration violation are found at Sections 1371(b) and 1532(b)(4) of the Pennsylvania Motor Vehicle Code. They may include: A mandatory 3-month driver’s license suspension; A fine ranging from $100 to $500, not including court costs; The violation is recorded to your Pennsylvania Certified Driver’s History; A possible increase in insurance rates $104.9 million worth of tolls went uncollected between June 2020 and May 2021, according to a report from the auditor general. The Turnpike’s total debt is $13.2 billion, which is larger than the entire state of Pennsylvania’s debt of $11 billion. If you believe you have unpaid tolls, contact the PA Turnpike's Customer Service Center at 1-877-736-6727 or visit their website. If you are facing vehicle registration suspension or other legal issues related to driving, contact the experienced attorneys at Fiffik Law Group today.

The short answer, is no. You do not have to, and should not, speak to the police about a criminal matter without an attorney present. If the police contact you for questioning, even if you believe that you have nothing to hide, you should immediately contact your Fiffik Law Group, P.C. attorney to discuss your options. You Have The Right To Remain Silent We all know the saying, “you have the right to remain silent.” But what does that really mean? When does that right begin? What questions must I answer? You have the right to remain silent when being questioned by an officer, regardless of whether you are voluntarily speaking with and officer or are in custody. Under the 5th Amendment to the United States Constitution, a person shall not “be compelled in any criminal case to be a witness against himself.” While many think that this means that a court cannot make you testify at your own trial, it extends much further than the courtroom. The protections of the 5th Amendment allow a person to refuse to answer a police officer’s questions related to the investigation of a possible crime. It does not matter whether you are placed in custody, if you are a witness, or if an officer is simply questioning you about a crime. If an officer’s questioning goes beyond asking you to identify yourself, you have the right to ask for an attorney. Anything You Say Can Be Used Against You in a Court of Law It may sound cliché, but you should never subject yourself to questioning by law enforcement without first speaking with an attorney because anything you say, can, and will, be used against you. It is the officer’s job to investigate, and they will use any information that can get to build a case. This includes information they receive about any crime, even one unrelated to the crime they are investigating. Take a moment to think of any police interrogation scene you’ve seen on TV. Even if there’s no dark room with two chairs, a table, and a bright light, being questioned by an officer can be intimidating. Often people will become flustered and may not answer a question in the way they initially intend. What may seem like an innocent question and answer, may in fact be just what the officer needs to solidify a case. Speaking with an attorney before being questioned by an officer will allow you to be more prepared for the questions they may ask and prevent you from inadvertently incriminating yourself. You Have the Right to Have an Attorney Present If you are placed in custody and questioned about a crime, you must inform the officers that you want to speak to an attorney. It is not enough to say that you “want to talk to someone” or “should probably talk to a lawyer.” Be clear with the officers that you are requesting an attorney and are exercising your right to remain silent. The officers must stop their questioning and give you the opportunity to contact your lawyer or have your lawyer present before continuing. Contact Your Fiffik Law Group Attorney If you or a loved one have been charged with a crime, or asked to speak with police about a criminal matter, call Fiffik Law Group today at 412-391-1014 for a free consultation.

President Joe Biden signed the Respect for Marriage Act on December 13, 2022, providing that the federal government recognizes any marriage between two individuals that is valid under state law. The new law prevents states from refusing to recognize out-of-state marriages based on sex, race, ethnicity or national origin. "It secures the federal rights that come with marriage, like when your loved one gets sick and you're legally recognized as next of kin." -President Biden The legislation was intended to address fears that the U.S. Supreme Court might reverse its decision recognizing same-sex marriage. Earlier this year, Supreme Court Justice Clarence Thomas wrote in a concurrence that the court should reconsider Obergefell v. Hodges—the ruling that protects same-sex marriage. The Respect for Marriage Act repeals the federal Defense of Marriage Act, which defined marriage as between one man and one woman. Impact on Employee Benefits Same-sex couples can continue enjoying company benefits just as opposite-sex couples do. The new law means employers and employees can have more confidence that same-sex marriage will remain legal in the United States. Door Remains Open for States to Define Marriage Currently, same-sex marriages are licensed in and recognized by all U.S. states and the District of Columbia, as well as all U.S. territories except American Samoa. The new law offers less protection than Obergefell because it does not require states to let same-sex couples marry. That means if the Supreme Court overturned the Obergefell ruling, conservative states could prohibit same-sex marriages. LGBTQ advocates said their rights felt much more fragile after the court overturned Roe vs. Wade this year. Currently, 35 states have statutes or constitutional amendments banning same-sex marriage that would take effect if Obergefell were overturned. Rights for Married Couples Legal marriage comes with many federal rights and benefits, including: Filing your taxes jointly as a couple. Receiving your spouse's Social Security benefits. Being named as a dependent on your spouse's employer-sponsored health insurance. Right to visit your spouse in a hospital or prison. Next-of-kin status for emergency medical decisions or filing wrongful-death claims. Custodial rights to children, shared property, child support and alimony after divorce. Tax-free transfer of property between spouses. Joint filing of bankruptcy permitted. Funeral and bereavement leave when your spouse dies. Joint adoption and foster care. Legal status with stepchildren. Permission to make funeral arrangements for a deceased spouse. Right of survivorship of custodial trust. Right to change your surname upon marriage. Right to enter into a prenuptial agreement. Right to inheritance of your spouse's property. Spousal privilege in court cases. Payment of wages and workers' compensation benefits to the spouse after a worker's death. Religious Liberties Under New Law The Respect for Marriage Act preserves religious liberties or conscience protections that are available under the U.S. Constitution and federal law. It does not require religious organizations to provide goods or services that recognize or celebrate a marriage. In addition, it does not sanction under federal law any marriage between more than two individuals. Resolving Complex Same-Sex Family Law Issues in Pennsylvania Since same-sex marriage is relatively new in Pennsylvania, there may not be many attorneys working in the state that have the necessary knowledge to handle family law issues specific to same-sex couples. Fortunately, our team at Fiffik Law Group has experience in these matters and can help you and your spouse with prenuptial and postnuptial agreements and resolve any disputes with efficiency. Contact us or call (412) 391-1014 to speak with one of our experienced attorneys.

A promissory note is a written promise to pay a specified amount within a specific time period. This type of document is used by the lender to enforce a borrower's promise to pay back a loan. A promissory note is a type of contract. Like a contract, a promissory note details all the terms of a loan agreement, including the following: The identity of the lender and borrower The date by when the loan is to be paid in full How the borrower is to pay the loan How much the borrower is required to pay Promissory notes are common documents in any financial transaction. You've likely signed one if you have taken out any type of loan in the past. Common transactions include a loan to purchase your residence, a loan to purchase a vehicle or a loan involving a business matter. When Should You Use a Promissory Note? A promissory note is commonly used for the following transactions: Business loans Car loans Real estate purchases Personal loans among friends or family Student loans If you are lending a person or a business money, we strongly recommend that you formalize the loan by creating a written promissory note. Whether you are lending a small or large amount of money, it’s important to get it in writing. The promissory note is an enforceable agreement, helping to protect you and to ensure that a person or organization repays you. Common types of promissory notes include the following: What Should You Include in a Promissory Note? Since every state has its own laws governing the essential components of a promissory note, you'll want to verify the laws of your state when writing a promissory note. No matter your state of residence, these important details should be addressed in your promissory note: Types of Promissory Notes Different types of promissory notes are appropriate for different types of agreements. You should create your promissory note to fit the type of transaction in which you're involved. Promissory notes can be as simple as a onetime payment from a friend in the future (a demand note). Transactions such as car loans and real estate loans require more complex promissory notes that cover details such as amortization schedules, interest rates, and more. Types of promissory notes include the following: If you have a situation where a promissory note is advisable, make sure to include all important details to protect yourself. Get in touch with one of our experienced business attorneys for help drafting your promissory note. Protect yourself. You can even have the attorneys fees made part of the loan and paid back by the borrower.

In July of 2022, Pennsylvania lawmakers unanimously passed "Christine's Law" requiring drivers to clear snow and ice off of their vehicles within 24 hours of a snowstorm. This law is named after Christine Lambert, a Pennsylvania woman who was killed on Christmas Day in 2005 when a piece of ice fell from a passing tractor trailer, crashed through her windshield, and struck her in the head. Before the passing of Christine's Law, drivers could not be pulled over for having snow and ice built up on their vehicle. They could only be fined if someone was injured or killed by snow and ice falling from their car. Now, if drivers do not clear off their vehicles, the police have cause to pull them over and fine them $50. The fine when someone is injured or killed by falling snow or ice also increased to $1,500. Pennsylvania passed this law to prevent tragic deaths like Christine's. It only takes a few extra minutes to clear off your car - if you won't take the time for the safety of others. at least take the time to avoid being pulled over by the police and fined. If you or a loved one has been seriously injured by a motor vehicle accident, our experienced personal injury attorneys are here to help your family recover from this tragedy and pursue legal actions against those responsible. Contact us today for a free initial consultation.