Wills and Probate

What is a Will?   A Will is a document that sets forth the disposition of one’s property/estate after his/her death.  Simply put, listing who you want to get what, and who you want to appoint to make sure that happens.

Who should have a Will? Anyone 18 years of age or older and of sound mind may make a Will. A Will is advisable for most people, even if you have few possessions. If you pass away without a Will, your property is distributed according to Idaho law.   

What is Probate?: Probate is the legal process that takes place in Court after a person dies wherein the personal representative is given authority to administer the estate—identifying the assets in the estate, paying outstanding debts and taxes, and distributing/transferring ownership of the property as set forth in the Will and so forth.

Contacting an attorney to determine the best approach for you for your estate plan is the first step to getting your affairs in order.  This includes an in-depth discussion of you desires, goals, and sometimes the potential need for long term care in the future, among other things.

What are Advance Directives?: Advance directives are Powers of Attorney, Powers of Attorney for Health Care and Living Wills. Powers of Attorney are documents whereby one gives another person the legal authority to act on his/her behalf for personal, financial and/or healthcare affairs during his/her life time. A Living Will is a written declaration regarding your wishes as to the use of life-prolonging medical care should you become terminally ill, have an irreparable injury or incurable disease,  be in a comatose or persistent vegetative state, and where death is imminent.

Who should have Advance Directives?: It is advisable for everyone 18 year of age and older with capacity to have advance directives that are at least effective upon their incapacity appointing someone whom they trust to take care of their affairs and make decisions for them in the event they become incapacitated. Everyone should also have Living Wills as Idaho law requires that the application or non-application of life support in these unique circumstances be set out in a written document.

There are three different situations where one may need to obtain guardianship and/or conservatorship of a loved one: 

One of those instances is when an individual  with a significant developmental delay has turned 18 years of age. In these cases, a guardianship may be necessary to help the person with the developmental delay make decisions. We always want to first seek other supported decision-making arrangements if at all possible and seek the least restrictive means.  Limited guardianships are also an option.  Guardianship should be drafted so as to maintain the dignity, personal autonomy, and independence of the person with the developmental delay to the extent possible.

Another instance where a guardianship may be warranted is in a situation where a grandparent or caregiver is caring for a minor child in the absence of a parent.  Due to circumstances such as drugs, jail, abandonment, etc., children are often left with a grandparent or a caregiver for extended periods of time without parental contact or support. In these situations, a guardianship is often needed. The guardianship allows the grandparent or caregiver to give the child consistency and a stable home environment. The guardianship also allows the grandparent or caregiver to make medical, educational, and other decisions for the child since the parent is unavailable to do so.

The third instance is when an individual becomes vulnerable/incapacitated, due to dementia, Alzheimer's, or other causes, and is no longer able to take care of themselves or make decisions for themselves.  If they haven't executed well-drafted advance directives when they had capacity, a loved one may need to seek guardianship/conservatorship to assist them with their decision-making and finances.  The key is to make sure to provide the vulnerable adult with as much autonomy and dignity in this process as possible.

Perhaps the most common reason for terminating parental rights is abandonment and/or neglect of minor children by the parents. (There are other grounds for termination as well.) The Court looks to various factors, including the best interests of the minor children and the parents, when making its ruling.  Once the Court has terminated the parental rights, the Petitioners can proceed with adopting the minor children.