Wednesday, 25 July 2018

Living Wills

Living Wills

Living wills are not really wills at all. Instead, a living will (which also may be known as a healthcare directive or directive to physicians) is a document that expresses a person’s desires and preferences about medical treatment in case he or she becomes unable to communicate these instructions during terminal illness or permanent unconsciousness. This is a part of estate planning. The first living wills helped people who wanted a natural death unattended by artificial life support and other advanced medical techniques. As these documents became more popular and widely available under local laws, they came to include other health care concerns such as tube feeding, resuscitation, and organ donation. While living wills are allowed in all states, they sometimes must follow certain formalities to be effective. If valid, a living will binds health care providers to its instructions.

What Does a Living Will Cover?

Many people believe that living wills only direct health care providers to withhold treatment. While many choose to issue that type of instruction, a living will also allows a person to ask for all available treatment options and medical techniques, or to choose some medical options and reject others. Because a living will involves complicated medical issues, consultation with a doctor may help clarify different treatment types and assist the patient in making living will decisions. Some people do not complete living wills because they worry doctors could let them die when there is still a chance for recovery. However, a living will cannot take effect legally unless the patient is medically determined to be in a permanent vegetative state or terminally ill, and therefore unable to communicate medical preferences.

Living Will vs. Durable Power of Attorney

A durable power of attorney can perform some of the functions of a living will. This document gives an attorney-in-fact legal power to make health care decisions for someone who cannot make those decisions him or herself. A durable power of attorney differs from a living will in that it may direct the attorney-in-fact to carry out the living will’s instructions or it may allow the attorney-in-fact to use his or her own judgment. The living will itself also can specify a proxy to help enforce its terms. A durable power of attorney may be used whenever the individual granting the power cannot make his or her own health care decisions; it does not depend on terminal illness or permanent unconsciousness to become effective. Most estate planning attorneys recommend both documents to cover all situations.

Without a living will or durable power of attorney, family members may end up arguing over what treatments should or should not be provided. Doctors will only consult family members on health care decisions; if a person prefers that a friend or unmarried partner participate in his or her health care decisions, a living will and durable power of attorney enable that person to have a say.

How to Choose an Attorney-In-Fact

The person chosen as the attorney-in-fact or proxy for health care decisions should be a trusted individual who is comfortable discussing health care issues. Because this person may need to argue the patient’s case with doctors or family members, or even go to court, an assertive and diplomatic individual may be preferred. The representative should be well aware of the choices made in the relevant documents, and should support those instructions. It is also useful to enlist the cooperation of friends, relatives, and health care providers by giving them executed copies of the document for their reference, should the need arise.

Free Consultation with a Living Wills Lawyer in Utah

If you are here, you probably have an estate issue you need help with, call Ascent Law for your Living Wills consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, 24 July 2018

Mediation Lawyer

Mediation is a popular process for getting through divorce on decent terms with your spouse. Using mediation can protect your children and your wallet from the effects of a contentious litigated divorce. What are the pros and cons of divorce mediation?

Mediation Lawyer

Mediation is a form of alternative dispute resolution (ADR) intended to create a low-conflict setting for spouses and others to work through their differences while crafting satisfying agreements.

For couples able to tolerate working together in the same room, mediation is a good path toward divorce for the following reasons:

  • An experienced mediator helps you understand the issues upon which you must agree. You discuss and come to agreements with those points in mind. Minimal time is spent rehashing reasons for divorce and other personal conflict.
  • Through mediation, you can state your thoughts and needs yourself or with the help of the attorney in attendance. You and your spouse maintain control of the process and the outcome, unlike a matter moving through the court system.
  • The cost of mediation is less in money, time and energy than litigated divorce.
  • You lose no rights to pursue litigated divorce if mediation fails or you cannot reach a reasonable agreement with your partner.

Not all couples are candidates for mediation. While there is always hope mediation might work, it could be a poor choice in cases such as:

  • Couples not on civil speaking terms
  • Situations where domestic or other abuse is a factor
  • Instances where one partner is a high-conflict personality

What Can You Expect During Mediation?

The primary benefit you can expect from mediation is that the cost of your divorce will be lower than if you choose the traditional litigation route. When divorcing couples choose mediation[CK1], they can freely discuss difficult, financial issues, such as child custody and spousal support, without fear that what they say will ever be used against them in court.

You can expect a neutral, third-party mediator to keep sessions focused on productive dispute resolution. The mediator does not make decisions for the parties, protect their legal interests, or advise them how to resolve their difficulties. The parties decide the terms and fairness of their agreement themselves, or with the help of their attorneys.

If an agreement cannot be reached and the case must proceed to court, both parties must find new lawyers to represent them and start from scratch. Therefore, the parties have financial incentives to push towards an equitable settlement.

You can also expect to arrive at decisions and compromises on the following kinds of hot button issues:

  • Where the children will reside and custody and visitation plans
  • How to equitably divide property, assets, and valuables
  • How child and spousal support payments will be handled
  • Decisions about shared investment property and business ventures

Steps for Filing a Divorce in Utah

Going through a divorce can be a very difficult time in your life. Don’t let uncertainty about the complicated divorce process add to your stress. Here are the basic steps involved in filing a divorce in Utah.

  • Residency requirements. First you must meet the residency requirements to be eligible to file a divorce in Utah.
  • Establishing the grounds. As of 2010, you can file a divorce on the grounds of no-fault in Utah. A no-fault divorce can be sought if one of the spouses states under oath that the marriage has irretrievably broken down . A fault divorce can be recognized if one spouse is proved to have committed adultery, cruel or inhuman treatment, abandonment, or is incarcerated for a long period of time – convicted of a felony.
  • Contact an attorney. Meeting with an experienced Utah divorce attorney before filing for divorce can help you avoid mistakes that could cost you down the line.
  • File your petition. You must file a petition for the dissolution of marriage — also called a complaint for divorce or petition for divorce. A lawyer can help you prepare the necessary paperwork.
  • Decide on a type of divorce. There is more than one way to get a divorce. For example, if you and your spouse think you can work together amicably to reach a resolution, then a mediated divorce may be right for you.

Because each state has slightly different laws when it comes to divorce, meeting with a divorce attorney in your area can help you get started in the right direction. Which leads me to the next step of offering you a free consultations.

Free Initial Consultation with a Lawyer at Ascent Law

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Utah Adoption Court

This article is provided to you by Michael R. Anderson, Esq., Utah Adoption Lawyer.

Utah Adoption Court

Adoption can be a tricky process. There are a number of things to consider including eligibility to adopt, whether or not to use an adoption agency, and whether or not the adoption courts need to be involved in the process. Below you will find key information about frequently asked questions regarding the adoption court and where to go to get legal help. We’ve previously explained the Adoption Process in Utah here. We hope that we can answer some of your questions about adoption in this post.

Does my adoption have to be handled by an adoption court?

Yes. Regardless of whether you are working through an adoption agency or on your own, your adoption must be approved by an adoption court. This process involves filing a petition with the adoption court and then going through an adoption hearing. All of the people who have an interest in the adoption must receive notice of the hearing, prior to the hearing. These people typically include the biological parents, the adoption agency (if used), and the child, if he or she is of a certain age (12 or 14 in most states). Often times the adoption court will appoint a legal representative for the child. This representative is a disinterested third party whose job it is to look out for the child’s best interest. If the court does appoint a legal representative for the child, that representative must be given notice of the adoption hearing.

Typically, courts regarding custody of a child follow the best interest of the child standard (this is also used in divorce cases). This means that during an adoption proceeding, the prospective parents must show the adoption court judge that it is in the child’s best interest to be adopted by them. If the adoption court judge does determine that the adoption is in the child’s best interest, he or she will issue an order, called a final decree of adoption, approving the adoption. The final decree of adoption makes the new parent-child relationship legal and changes the child’s name, per the parents request.

What should my adoption petition have in it?

Your petition should include, at least:

  • the adoptive parents names, ages, and address;
  • the relationship between the adoptive parents and the child;
  • the legal purpose behind the termination of the child’s rights;
  • that the adoptive parents are the right people to adopt the child; and
  • that the adoption is in the child’s best interest.

Along with the adoption petition, you should also file the written consents of the birth parents (or the court order of the termination of their parental rights) with the adoption court. When you file your petition, you should also file your request for the child’s name change, if a name change is desired.

Does an attorney have to handle my adoption?

It is always recommended to have an adoption attorney, even if you are working with an adoption agency. If your adoption agency does not provide you with a lawyer, it is a good idea to hire one to write your adoption petition and to represent you in adoption court. Legally, you could write your petition on your own and represent yourself in adoption court. However, drafting petitions and going through court hearings can be complicated; thus, it is in your best interest to let an experienced lawyer handle it, using his or her legal expertise.

What are the legal requirements for international adoption?

To qualify to adopt a child internationally, you must meet both the requirements of the United States, as well as, the requirements of the child’s native country. You, or your lawyer or agent, may end up going to adoption court both in that country and in the United States.

Free Consultation with Adoption Lawyer in Utah

If you have a question about a stepchild adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, 23 July 2018

Pet Trust

Your pet is an important member of your family. But in the eyes of probate law, pets are personal property, much like your car. That’s why you can’t leave money to your pet. You can mention your pet in your will, but there’s no guarantee your wishes will be followed. If want to ensure your companion is cared for after you’re gone, a pet trust could be just the solution.

Pet Trust

A pet trust is a legally enforceable arrangement providing for the care and maintenance of one or more companion animals. This is an important part of estate planning law that you can use to protect your pet after you are gone. When deciding if a pet trust is right for your family, consider the following information.

Benefits of a Pet Trust

It’s a common misbelief that providing for your pets in a will is enough to guarantee their continued care. Remember, wills are for distributing property. Once that task is done, there’s generally no ongoing supervision. So if you make provisions for a beloved dog in your will, the person receiving your companion is under no obligation to keep or care for your dog. But with a pet trust, the trustee has a legal duty to carry out your instructions.

There are many factors to consider when deciding if a pet trust is the right option for you including:

  • A properly formed pet trust can better withstand legal challenges from family members who are unhappy with your decisions.
  • Your pet’s care instructions can be very specific, including details such as the type of cat food that will be purchased, or the how many times a day your dog needs to be walked.
  • A pet trust is effective immediately upon your death. A will can take weeks or even months to execute.
  • You can require periodic inspections of your pet to ensure the caregiver is doing his or her job.
  • A pet trust can apply if you become incapacitated. For example, if you are moved to a nursing home or other long-term care facility, you and your pet can move together.
  • You can control the timing of payments made on your pet’s behalf. Promise made by friends and family often fail. It may not be wise to give your pet’s guardian all the money upfront. If the guardian has a change of life issue, your pet may face an uncertain future.

How a Pet Trust Works

A pet trust has many of the same features of other estate planning trusts. There is a grantor who creates the trust, and a trustee who holds the trust assets “in trust” for the benefit of the grantor’s pets. The terms of the trust can be as detailed as you wish, specifying preferences such as food or frequency of trips to the groomer.

Typically, payments to a designated caregiver will be made on a regular basis. The trust can continue for the life of the pet, although some states place a 21-year cap on the trust’s duration.

Depending on the laws of your state, the trust can continue for the life of your pet. Be aware that a few states terminate pet trusts after 21 years. This is an important consideration for long-living pets such as parrots.

You will need to have the following information before you draft your pet trust.

Select a Trustee

Generally, a trustee can be any adult of sound mind, or an organization or institution such as a law office. Check with your state’s laws to determine specific requirements. Before you select your trustee, make sure to review the requirements of the job and understand what the cost, if any. It is a good idea to select an alternate trustee, even if your first trustee is an organization.

Select a Caregiver

Decide if your pets should go to one person or distributed to different people or organizations. Select at least two caregivers in case their circumstances change during your pet’s life. Discuss the terms of the trust with potential trustees before they agree to the position. Keep in touch with them over the years to remind them of their duties.

Properly Identify Pet Beneficiaries

Your pets can be identified by photos, licenses or microchips or by “class”. For example, “the pet(s) owned by you at the time of death/incapacitation.”

Pet Care Instructions

Include detailed information about your pet’s standard of care including frequency of vet and grooming visits, food preferences, sleeping arrangements, and exercise. Require inspections of the pet by the trustee. Determine what would trigger the pet being removed from the caregiver and identify the alternate caregiver.

Determine Financial Need

In addition to the cost of care for your pet(s), you’ll need to cover the cost of administering the trust. Determine how the funds will be distributed to the caregiver.

End of Pet Life Instructions

Consider when to terminate your pet’s medical care when faced with a terminal illness. The decision to terminate can be a joint decision shared by the vet, the trustee and the caregiver. Remember to state how your companion will be handled upon passing.

Remainder Beneficiary

Select a remainder beneficiary in case there is money remaining in the trust after your pet dies. The beneficiary can be a person or an organization.

Free Consultation with a Pet Trust Lawyer

If you are here, you may want a Pet Trust or you need help with a Pet Trust Administration in Utah.
If so, please call us for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Moving Children Out of State After Divorce

Co-parenting children after a divorce is difficult enough when both parents live within a reasonable distance from each other. If one parent decides to move out of state after a divorce, the challenges become even greater.

Moving Children Out of State After Divorce

In most cases, parents are required under state law to get permission from a judge and/or the other parent before moving a child out of state. Even moves within the state may require permission if they will be far enough away to necessitate changes to a parenting plan previously established. To that end, unless you get permission from the other parent, you may need to file an official motion in court to approve your move.

There are several factors courts consider when deciding whether or not to approve the move. The most important is the parenting arrangement you currently have in place. The following are the common scenarios:

  • No existing custody order: In this situation, parents who live with their children are generally able to take children on vacations without having to get court permission. However, a parent who takes a child out of state without permission from the other parent could potentially lose his/her rights once custody arrangements are created. Exceptions exist if the parent was taking their children to protect them from an abusive situation.
  • Primary or sole physical custody: Parents who have primary or sole physical custody are required to demonstrate that a move is being done in “good faith,” and not with the purpose of interfering with the other parent’s visitation. Common examples include a job change, a spouse’s job change, a move to be closer to relatives or a move to take care of an ill parent. The moving parent must also prove the child will have plenty of educational and recreational opportunities in the new place, improving his or her quality of life.
  • Joint custody: This is the most difficult situation for obtaining approval to move children out of state. A judge will hold a hearing to determine what is in the best interests of the child, and ultimately appoint one parent as the primary custodian. The child will then live with that parent, whether it’s the parent staying or the parent leaving.

From the Highest Court of the State of Utah – The Most Significant Case for Same-Sex Couples and Child Custody

A recent ruling from the Utah State Court of Appeals has determined that an unmarried partner that is the non-biological, non-adoptive partner in a same sex marriage can be entitled to parenting rights over a child raised in the relationship under certain circumstances.  This ruling has set the stage for a possible deluge of cases in the coming weeks, months and years involving same sex partners who have raised children, both adoptive and biological, from birth (or date of adoption for infants).

In a follow up decision handed down in Utah State Supreme Court, Utah County, a judge has determined that a custody case involving a same sex couple who have raised an adoptive son from infancy to the current age of 6 may proceed despite only one of the parties being listed on the adoption papers.  The Judge in this case informed the parties in the custody matter before him that “You’re here at an odd moment in that the case came down from our highest court in the state, which basically changed the definition of parenthood,” before determining that the non-adoptive party had standing before the court.

As these cases show, the definition of “family” in the Beehive State is expanding.  There will be many who will benefit from these rulings in the near future by having their rights expanded relating to children who have never known life without them.  Stay tuned, more to come on this amazing situation.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, 22 July 2018

Estate Planning Lawyer

When people think of estate planning, they tend to focus on the distribution of an individual’s assets and other property when he or she passes away. Although that’s certainly a component of estate planning, there’s much more that a person can do to ensure that his or her intentions and wishes are honored in the case of mental incapacity or upon passing away. This section provides resources related to estate planning, including a discussion of estate laws, tips for creating an estate plan, and an explanation of how probate works.

Estate Planning Lawyer

Why Estate Planning Is Important

Estate planning allows a person to make decisions that include medical treatment care options and the distribution of property when he or she passes away. Planning ahead provides time to carefully consider and review estate decisions and to create tailored plans that preempt any disputes. As a side benefit, a person who plans ahead will become knowledgeable about important issues such as estate taxes. Keep in mind that estate plans can generally be amended, so you needn’t fear being locked into a “rough draft” plan that’s created early on in life.

The Risks If You Don’t Plan Your Estate

A person who doesn’t plan his or her estate runs the risk of family members fighting over property and over difficult decisions such as end-of-life care. If a dispute over the estate goes to court, expenses can quickly add up, the process can be painfully slow, and in extreme cases, family relationships can be ruined. Land can be troublesome to divide, with the problem compounded if some family members want to sell, against the wishes of other family members.

Types of Estate Plans

As many people know, planning an estate involves the distribution of real property, bank accounts, insurance policies, investments, and/or other assets a person owns when he or she passes away. However, estate planning also includes trusts, school tuition accounts, and other plans that can take effect during a person’s lifetime, and remember that medical care and end-of-life decisions are also forms of estate planning. This section provides an overview of common estate plans, and an attorney can help you to fully understand the plan options available to you.

Factors to Consider When Planning Your Estate

The various forms of estate plans have their unique features and benefits. For example, one type of plan may provide advantageous tax benefits compared to another plan, and certain requirements may apply to one type of plan but not to another. Along with the federal government, states have passed estate laws, and it’s important to understand the laws that apply as you begin planning. If you do so, you can minimize costs and tax payments while tailoring a plan that suits your needs and carries out your intentions.

How an Estate Planning Attorney Can Help You

An attorney can help you to understand the basics of estate planning, and he or she can help you to create a plan that reflects your wishes. This section provides information for consulting with an experienced estate planning attorney in your area.

Free Consultation with a Utah Estate Planning Lawyer

If you are here, you may need to get your estate planning done or you need help with an estate matter. If you do, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Alcohol Can Be a Problem for Child Custody

Whenever a court handles a child custody dispute, the judge’s primary goal is to determine what arrangement would be in the children’s best interests, while still being mindful of each parent’s rights. When the presence of regular alcohol abuse is a factor, it is unlikely that the parent with the problem will be able to obtain physical custody of the child — although he or she may not necessarily be disqualified from sharing legal custody.

Alcohol Can Be a Problem for Child Custody

Considering the state of the parent’s alcoholism

The current state of the parent’s alcoholism plays a major role in the judge’s decision. If, for example, you are struggling with the disease and you are not making any effort to address it, you’ll face an uphill battle in any child custody proceedings. Judges will see you have a serious problem and are not taking it seriously, leaving you unfit to have custody of your children. The judge may still allow you to have a say in how your child will be raised.

If, however, you are a recovering alcoholic, have been sober for an extended period and continue to make demonstrable efforts to overcome the problem, then the judge may spend more time considering your ability to maintain physical custody of your children. The judge may reach out to a treatment counselor or sponsor, for example, to learn about the progress you have made, your activity in rehabilitation and the length of time you have been sober.

Ultimately, alcoholism can negatively impact parental record, no matter how dormant it is. Even recovering alcoholics who have been sober for years could have a hard time during this process — and that can be quite unfair.

How to Prepare for a Child Custody Hearing

Your very first child custody hearing can be a difficult experience, especially if you are unfamiliar with how the process works. However, a little preparation can go a long way toward helping you feel more comfortable in court, giving you a better chance at a positive outcome.

Below are some tips to help you prepare for your child custody hearing:

  • Know the laws: Enter the court with a general understanding of New York child custody laws so you are not surprised by anything that happens. This will give you a better idea of the challenges you will face and what you need to prove to secure custody of your children.
  • Have your documents prepared and organized: Work with your family law attorney to prepare all the necessary documents — and have those items well organized for your court appearance. Some examples of documents you might bring include an annotated visitation schedule, a phone log, proof of child support payments and any other notes or documents that demonstrate your capabilities as a parent.
  • Lean on your attorney: Follow your attorney’s lead in the courtroom and let him or her do most of the talking. Learn appropriate courtroom etiquette and never interrupt others or speak out of turn. Your professionalism in court will help you create a positive impression on the judge overseeing your case.
  • Dress appropriately: It’s also important to dress appropriately. If you want to secure custody of your children, you should be focused on making a good impression, and professional attire is a big part of that. Before your judge hears any evidence related to your case, he or she will likely form an opinion of you based solely on your appearance. This might seem unfair, but it’s a basic fact — positive first impressions are more likely to yield positive results.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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