GUARDIANSHIP AND CONSERVATORSHIP FOR ADULTS

     Guardianships are also used in cases where an adult has become incapacitated due to age, accident or illness.  Under Colorado law, a child becomes emancipated at the age of eighteen (18) and is entitled to make all of their own decisions.  If a person has a disability which has affected their development, a guardianship MUST be obtained when the child turns eighteen (18).  Their disability DOES NOT negate their right to emancipation.  In these cases, the parents or a third party may apply for guardianship.  The subject of these cases is called the “protected person” because, due to their age or incapacitation, their health and welfare must be protected by a third party.  Parents’ permission is not required.  However, it must be shown that the person in question has a condition that renders them unable to make decisions that are in their own best interests, and that said condition is not likely to change within a reasonable time.  

     This is most often shown by testimony regarding their health and their living situation.  These cases are commonly used in cases involving dementia and/or Alzheimer’s patients, mental health patients or patients who have sustained a brain injury through an accidents or illness.  Guardianship can also be obtained in cases involving addiction, where a person’s drug or alcohol abuse has gotten to the point where the person is unable to make appropriate decisions regarding their health and welfare.  Guardianship is most often seen when a person requires in-patient care, such as hospice care, nursing homes, residential mental health care facilities or group homes, or in-patient drug/alcohol therapy.  In order to place people outside of their home without their permission, a guardianship must be obtained and it must be proven that the person is unable to make these decisions on their own. 

     In all guardianship cases, once the Court appoints a person to be guardian for a protected person, the obligations are the same, regardless of age.  The guardian is expected to act in the protected person’s best interests with regard to all decisions involving physical and medical care and treatment, mental health therapy, residential choices, etc.  Other types of choices which may need to be made involve the protected person’s education, extra-curricular activities, religion, personal contacts/visits… the list can go on based on the person’s age and degree of incapacitation.  It is expected that the protected person’s opinion and input will be obtained and honored whenever possible and not contrary to their best interests.  After the permanent guardian is appointed, the guardian is expected to file yearly reports regarding the protected person’s living situation, treatment and financial status.

     It is common that the Court, when appointing a guardian for a protected person, will grant the guardian authority over the person’s finances.  If it is the person’s financial welfare that is the primary concern, it might make sense to file for a conservatorship.  As conservator, a person has control of another person’s finances, to be held and/or used based upon what is in the person’s best interests.  The Court will take into consideration what assets and liabilities are involved, and whether the protected person’s condition causes them to be unable or unlikely to act in their own best interests.  The Court also wants to ensure that the protected person is not in a position to be taken advantage of if they are left to make their own monetary decisions.  If the protected person’s funds or resources are substantial, or if it would be a conflict for the guardian to act as conservator, then the court may wish to appoint a trained third party to act as conservator.  This is often the case when the person is entitled to a legal settlement or is the beneficiary of funds through a will or trust.  Absent these special circumstances, the Court is free to appoint the same person as guardian AND conservator, or simply appoint a guardian and give that person authority over the protected person’s finances.

     All of the types of cases involved in Probate Court are paper intensive and a person is best able to focus on the person in need by hiring an attorney to handle the paperwork and legalities.  Once the permanent guardian has been appointed by the Court, the paperwork decreases significantly and can usually be handled by the guardian personally.  Conservators need to keep meticulous records of the protected person’s assets, liabilities and spending throughout the year.  Because our office also handles tax and bookkeeping services, the Law Office of Angela Boeck-Giscombe & Associates can meet all of your needs throughout this process.

  

 If you are not sure what your family needs or you just want to review your options, don’t hesitate to contact our office for a reduced-rate consultation.  Please call 719-638-8877 today to schedule an appointment. Visit our website at www.AngieLawCS.com

 

GUARDIANSHIP FOR MINORS

    There are several different kinds of probate cases which may be helpful in assisting you caring for your various family members.  The most common is a guardianship, which can be used for people of all ages.  With guardianship, the guardian has the same decision-making authority that is best known in custody cases.  If a person is under the age of eighteen (18), they are required to have somebody acting and making decisions in their best interests.  Anybody can be designated as a protected person’s guardian, provided that they are over twenty-one (21) years of age.  A familial relationship is helpful, but not required to be appointed.  After appointment of a guardian is requested, the Court will appoint a Court Visitor to meet with the protected person and proposed guardian, as well as make contact with any doctors, therapists, teachers, etc. who are regularly involved in the protected person’s life.  After completing their investigation, the Court Visitor will file a report with the Court, making recommendations regarding the proposed guardianship.  The Court will hear testimony of the parties and review the reports, and enter orders according to the protected person’s needs and best interests.

   Guardianships are most often used when a child has been left with a relative or friend, either temporarily or permanently, with the permission of the parents.  Guardianships ARE NOT to be used in lieu of a custody case.  If the parents are not in agreement with the arrangement, then the moving party must get residential custody and decision making authority by filing an “Allocation of Parental Responsibilities” case with the District Court.  There are two ways to obtain a guardianship over a minor child.  The first way is for the proposed guardian to show that the parents agree with the proposed guardianship.  The best way to do this is by having the parents, especially the custodial parent, sign a Power of Attorney.  This document expressly gives a certain person authority to act on their child or children’s behalf.  The second way to obtain guardianship over a minor is to show that both parents’ have abandoned the subject child or children.  The Court generally requires several months of no contact or support in order to find that a parent has abandoned the child.

   Both parents and/or custodians must be given notice of the guardianship proceedings.  If the parents’ location is known to the proposed guardian, then that person must have the parents personally served.  This means that the original documents requesting guardianship must be delivered in person by a person who is eighteen(18) years of age or older and not personally involved in the case;  it is best to choose a person who is not a relative and who will not be called to testify.  The El Paso County Sheriff’s Office – Civil Division, located next to the main courthouse, just north off of Tejon Street;  they will serve a party for a small fee and mail you the Notice of Service for filing with the Court.  If a parent or custodian’s whereabouts are unknown, the proposed guardian can obtain permission to publish notice of the pending case, after showing the Court what efforts have been made to locate the person.  Once the permission to publish is granted, the proposed guardian needs to have notice of the case and the upcoming hearing posted in a newspaper in the town where the party is believed to last reside.  Publication needs to be done three (3) times over the course of three (3) weeks.  If the party then fails to appear, the Court can proceed without them. 

   If you would like to schedule a consultation or need help with your divorce, adoption, guardianship or  parental issues call us 719-638-8877 or visit our website

Colorado Department of Human Services, basic guide to guardianship

"Why you need an attorney when filing for divorce"  

     As a general rule, I always recommend that people going through a separation or divorce obtain their own counsel.  There are so many issues that come up in these cases, all of which have their own individual sets of rules, forms and procedures.  Many people utilize a paralegal to prepare the basic forms, while others choose to proceed on their own.  Often in these cases, the person finds themselves without the knowledge of how to proceed, let alone how to finalize their case.  Court clerks and paralegals are both prohibited from giving advice to parties who need help navigating the system.  If the other party’s attorney offers to “walk you through” the paperwork, keep in mind that that attorney represents the other side and DOES NOT have your interests, nor those of your children, in mind.  Even the easiest and most agreeable of cases needs both parties to know the system to get all of the necessary paperwork filed and orders entered.  A qualified attorney who represents your interests is a MUST in order to preserve your rights.

     

While some magistrates or judges will assist a pro se party on the record, most will hold that party to the same standard as an attorney.  This means that the person will need to be aware of which issues to raise and when, which forms to file, how to figure out the mathematical formulas for child support, maintenance, property division and retirement distributions and how to apply the various standards of law; just to name a few.  There are issues that must be raised timely, or your rights will forever be waived and you will not be given the opportunity to revisit the issue.  It is easy to get flustered when you are in the courtroom, which can lead to not raising issues adequately or not raising them at all.  I can’t tell you how often a prospective client comes in saying that they felt like they weren’t heard or given a chance to explain or speak, and they felt steamrolled when orders were being entered.  There are often things that people are entitled to that they are unaware of or that they don’t think they qualify for.  The Court will expect you to know these things, and those things, if not requested or addressed by you, will be deemed to have been waived.  Particularly in cases involving children, there is a seemingly endless list of things which must be addressed.  It is the lawyer’s job to plan and prepare parties for every issue which can arise, both during the case, as well as for the years to follow.

   On a final note, the law is ever evolving, as are the temperaments of judges and the community.  As we learn more about psychology, physiology, addiction, abuse and child development, our definitions of the “societal norm” change.  These changes have a profound effect on issues surrounding custody, parenting time, child support, maintenance and property division.  Less than 20 years ago, it was unheard of for a father to gain custody of his children:  now it is commonplace.  Fathers are now on an equal footing with mothers when asking for things like custody and visitation.  An attorney will be in touch with the trends in judges’ rulings, as well as recent rulings which change how our laws are applied, and will be the best qualified person to ensure that your rights are protected and you are putting your “best foot forward”.

       In the legal arena, there is a saying that “You only get one bite at the apple”, which means that you will be given only one opportunity to address an issue and once the judge rules on that issue, it is considered resolved and will not be reviewed unless new evidence comes to light.  Your time in front of the judge will be very short and without legal training, you may not know what issues to address and when to raise them.  An attorney will have the training that will get and keep the judge’s attention and ensure that you have the best shot at obtaining orders that are in your and your children’s best interests.  Being represented will give you the peace of mind that your case is being handled correctly and you can breathe easier through what can be a very painful and emotional experience.  It doesn’t have to be… get help today.

For clarification or for answers to your questions give us a call at 719-638-8877 or visit our website www.AngieLawCS.com

IRS SCAM 

 

The IRS scam that began a few years ago is still in full force.  I recently had a client call me in a panic, because she was on the other line with a gentleman, who identified himself as Jeremy Walker.  Mr. Walker gave an employee ID number and claimed to be calling from the IRS.  Mr. Walker had an accent, identifiable as not being from this country.

My client was told, quite forcefully that she owed taxes from 2008-2012.  He told her that she had been sent two certified letters that she had not claimed.  She was told if she hung up that it was further evidence that she was guilty of fraud.

1.  The IRS will never call you demanding money.

2.  You will receive a deluge of regular mail letters demanding money, prior to receiving certified letters.

3.  If you have a regular preparer for your taxes, immediately contact that person if you receive one of these telephone calls.

4.  You can visit the website IRS.gov for additional information regarding this scam.

5.  Even if you wanted to make a payment to the IRS for your tax bill, you cannot complete this over the telephone, THEY WILL NOT TAKE YOUR PAYMENT.

I had at least three clients call me last year and now four clients call me this year, regarding the IRS calling them to collect money on fictitious taxes owed.  Please do not pay anyone any money over the telephone for the collection of any debt that you do not recognize or agree with. Also, share this information with the older loved ones in your life.  They tend to be the biggest targets.

If you need help with a tax issue, either legitimate or fraudulent, please contact my office for a free initial consultation. 719-638-8877 or visit us at www.angielawcs.com

Proper Business Organization

   

If you have decided to open a new business, make sure you do it right.  Consult with a professional to ensure that you have the best organizational structure for your type of business.  This will ensure that you are protected not only from personal liability if necessary, but also from paying too much in income taxes. 

Sole Proprietor

Any individual who engages in an enterprise for the purpose of making a profit is a sole proprietor.  There is no special paperwork to complete, unless you 

are selling products and then there will be state and local sales taxes to deal with.

Partnership

The same is true for more than one person who are joining together to make a profit.  This is now a partnership.  The same rules apply to a partnership as to a sole proprietorship, except the income tax forms that needs to be completed annually.

Limited Liability Company (LLC)

Many individuals have heard of the Limited Liability Company (LLC) and know that an LLC will limit liability so that if someone is injured by your business, there is usually a layer of protection to insulate your personal assets.  It is very important to seek professional guidance with this entity, because if the proper forms are not completed, the tax ramifications can be shocking at tax time.

S Corporations

S Corporations contain more strict record keeping requirements than an LLC, but offer the same level of liability protection.  If the record keeping is not kept up to date and properly, the liability protection an end up being stripped away because of the deficiency.

This time of year, there are a number of businesses that learn the hard way that they missed something when they were completing their initial set up. Even though you may have not initially completed the documents properly, not all is lost.  We can usually fix the deficiency before another year goes by.  Contact the office to schedule an appointment and I can evaluate your situation and offer you the best "fix" for your situation.

Law Offices of Angela Boeck-Giscombe P.C.

719-638-8877 For more information "Visit Our Website" 

Why now may the best time to file bankruptcy

   Many people wonder if there is one time of year that is more advantageous to file bankruptcy.  When you decide to file a bankruptcy, one of the potential assets that the trustee will look at is your expected income tax refund.  The trustee will look at the month that you file and determine any percentage of non-exempt portion that belongs to the estate.

(This means they can take the money.)  The exempt portion of your tax refund is any earned income tax credit you may be entitled to.  (This means they can not take earned income tax credit.)  They can however look at any portion of your refund that is child tax credit, education credit or withholding.

     When planning the best time to file, there are a couple of considerations.  The most important of course is whether or not you are being garnished.  If you are, then the analysis must include whether you will lose more in garnishment than potential tax refund.  If the answer is yes, then you file immediately in order to stop the garnishment.

     Another important consideration is whether you are trying to stop a foreclosure or repossession. These are not usually issues that you can do a whole lot of waiting, as there is often a strict deadline involved.

     If you can wait and time your filing, try to file after you have received your tax refunds and have spent them.  They can not be sitting in the bank for a rainy day. Many of my clients will use their tax refund in order to pay they attorney fees and filing fees associated with filing their bankruptcy.

     It is important to consult with an attorney regarding what you are allowed to spend your tax refund money on and not run into any trouble with the bankruptcy court.  For example, do not go buy a car or a big screen television.  You could very possibly lose it as a non-exempt asset.

     Contact our office for a free initial consultation.  We will be happy to provide you with guidance on proper planning for a smooth and stress free filing that still ensures you are in compliance with the bankruptcy rules.

     Remember, we are a debt relief agency.  We help people file for relief under the U.S. Bankruptcy Code.

Angela Boeck-Giscombe P.C. 

A Law Firm of Straight Talk, Straight Answers

719-638-8877

Important Tidbits For Your 2014 Taxes

Rumors of delays in getting your refund..
The 2014 tax season is under way.  The first day of electronic filing to the IRS was January 20, 2015 and for the most part things went off without a hitch.  While the rumor is that the IRS suffered a major budget cut and refunds would be substantially delayed, the direct deposit refunds seem to be arriving in the standard 7-14 days.

Noncustodial Parents...

Please remember some important points for this tax filing season.  If you are the noncustodial parent claiming a child this year, make sure you have a signed Release of Claim to Exemption, Form 8332.  The IRS does not care what the final court orders say regarding who is entitled to claim the child.  Protect yourself with the signed form for the file.  If you need a blank copy, IRS.gov has them, or you can contact the office and we will be happy to provide one.

More on Health Insurance...

Additionally, the open enrollment for health insurance is ending on February 15, 2015.  While the penalties for not having health insurance during 2014 was seemingly small compared to the cost of health insurance, the penalties increase substantially for 2015.  The health insurance companies will be sending you a form to show the time periods you had health insurance.  If you are not sure what time periods you had coverage, wait for this form in order to properly file your taxes.

The office is currently scheduling appointments for tax preparation.  Don't forget the deadline for Corporate Tax returns is March 16 and for personal returns, April 15.

Give us a call 719-638-8877  or visit us at www.AngieLawCS.com