For far too many elderly people, elder abuse is a common occurrence and one that can cause devastating consequences. Whether you are creating an estate plan or are caring for an elderly family member and want to prevent any possible elder abuse from taking place, there are steps you can take to protect yourself from this kind of abuse.

Maintain Relationships: Elder abuse often occurs when an elderly person does not have significant contact or relationships with people such as friends and family members. Maintaining a strong relationship with your family as well as keeping friends close to you can allow you an outlet if any abuse ever takes place.

Activities: Elder abuse that arises out of neglect often occurs because the elderly person is unable to care for his or herself. Maintaining an active lifestyle that is appropriate to your abilities is often an excellent preventative measure as it allows you to come in the contact with others and keep yourself mentally and physically alert. Participating in various social and community activities as well as volunteering or charitable organizations can go a long way in helping to keep you active.

Planning: Some forms of elder abuse, such as financial abuse, can be prevented by taking adequate steps early on. For example, you can designate your own agent to watch over your financial affairs before you ever lose capacity. This will allow you to choose someone who is trustworthy instead of having to rely on someone at the last moment.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Question 1: What is a standby guardian?

Answer: A standby guardian is a person who will take over your parenting duties when you become ill or suffer an injury that makes you unable to adequately care for your child. The guardian has the right to care for the child as a parent, but does not have the right to control the child’s property or inheritance.

Question 2: Can anyone name a standby guardian?

Answer: No. North Carolina law requires that in order for a parent to name a standby guardian, he or she must be suffering from a progressive chronic illness or irreversible fatal illness. Essentially, the parent must be suffering from a disease that will eventually result in the parent’s inability to provide the child with proper care. Any parent of a child under 18 can appoint a standby guardian, as can the child’s general guardian or guardian of the person.

Question 3: What process is required to appoint a standby guardian?

Answer: There are two ways to appoint a standby guardian. First, a parent can submit a petition to the Clerk of the Superior Court. The clerk will hold a hearing to determine if the nominated person is suitable and, if so, appoint that person as standby guardian. Second, the parent may create a written declaration naming a standby guardian. The parent must make a written declaration, sign and and have it witnessed by at least two people 18 or older. The standby guardian must then file the written declaration with the clerk’s office within 90 days.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

If you aren’t already a convert, you’ve probably heard something about the PBS drama “Downton Abbey.” Originally produced by British television company ITV, the show follows the life of a wealthy British family during the reign of King George V in early 20^th century England. In the years following the Titanic disaster and through World War I, the family residents of Downton Abbey experience no end of drama, much of which surrounds the status of the the family fortune and who will inherit it.

While the lives of a fictional aristocratic English family navigating the waters of inheritance and hereditary titles may seem far removed from modern day, there are interesting contrasts between it and modern inheritance laws.

Consider the notion of an heir or inheritor. When feudalism and nobility ruled England, all a nobleman’s titles and land were typically inherited by the first-born legitimate son. Not so today. In North Carolina, and everywhere else in the United States, there is no system of inheritance based on transfers of title and birth or sex status.

All parents, both males and females, can choose anyone whom they wish to receive an inheritance after they die. You can choose to leave everything to a single child, divide your estate equally amongst all your children, or completely disinherit your children as you desire. Of course, you have to create an estate plan to effectively disinherit, as intestacy laws guarantee your child an inheritance if you don’t make other choices. Once you create a plan, you can rest assured there will be no Downton Abbey dramas following your estate.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Question 1: Who is the executor and what does he or she do?

Answer: An executor has the responsibility to settle a decedent’s estate. This means the executor has to take control of all the property a person leaves behind after death and use it to pay debts or distribute the property to new owners. Executors also typically begin the probate process by filing a petition with the court. Because executors must comply with all North Carolina probate requirements, they typically hire an attorney to advise them about the relevant rules.

Question 2: Can anyone be an executor?

Answer: No. Personal Representatives, the more common name for executors, must meet specific requirements in North Carolina. The person must be at least 18 years old, must be of sound mind and cannot have been convicted of a felony. There are other requirements as well, such as being literate, but the Clerk of the Superior Court—the judicial official that presides over probate matters—has the right to determine if a person is qualified. If the clerk finds the nominated person unsuitable it can appoint someone else to serve as personal representative.

Question 3: Is the personal representative the same thing as an executor?

Answer: Yes and no. A personal representative and an executor have the exact same duties. The only difference is that an executor is specifically nominated through the decedent’s last will and testament. A personal representative that isn’t nominated through a will is also sometimes known as an administrator. However, the three terms are sometimes used interchangeably, though they all convey the same responsibilities.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Your Asset List: Your digital assets can be as simple as an e-mail address or as complicated as an online business. Regardless of what you have, you need to write it down. Consider everything you have from your bank accounts and tax return filings to personal information such as digital music or family photographs that only exist on your computer. What about your phone? Does that have anything on it? Or your flash memory cards? You need to account for all of it.

Your Password And Access List: You should organize your login information into a single list. The list should contain all your access information including your logins and passwords, but don’t forget the other security information as well. For example, you may have a PIN associated with your bank account, or a security question that you need to answer to reset your password. You’ll have to review each of your accounts and the security information you have to develop a complete list that someone who is unfamiliar with your digital assets can then use.

Your Successor: Once you have everything, you’ll have to have it ready to give to someone when needed. Make sure you specifically address these issues in your power of attorney or your Will. You may also need to store your list in a safety deposit box or other real-world—as opposed to digital world—safe place so your successor can find it when needed.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Issue 1: Your digital world. What do you have out there that others would need to know about if you die or are incapacitated? If you have a blog that earns income, for example, you essentially have a small business that you’ll need to transfer to others to run. If you have a Facebook account, a Flickr profile, or any other social media properties, what do you want to happen to these? What are the policies of the websites themselves and how do these affect you?

Issue 2: Access to your digital assets. Most digital assets have passwords, login names, and other security measures that must be accessed by anyone whom you nominate to take them over for you. Beyond passwords you may also have pin numbers, secret questions that require specific answers or other measures you’ll have to prepare for.

Issue 3: Transferring your property. Who gets your passwords, account information, and other digital asset information if you are incapacitated or die? Do you have a financial power of attorney ready? Have you mentioned these assets in your Will? You’ll need a complete list of digital assets plus the methods to access them if you want to hand over your digital life to someone else. Speak to us today for more detailed advice about the best way to go about doing it.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Question 1: Who needs a Living Trust?

There is no one simple answer to this question, but in general, the more property you own the greater the benefit you may be able to receive by creating a living trust. A living trust’s primary role is to transfer property to your beneficiaries without having to go through probate. If you don’t have a lot of property to transfer, you may not have any need for a Living Trust.

Question 2: If I create a living trust do I still need a Will?

Yes. A Will is the only instrument in which you can make certain choices, such as naming an executor for your estate or naming a guardian to care for your minor children or incapacitated adults under your care. Also, a will can serve as a safety net for any property you haven’t transferred to your Living Trust.

Question 3: Is a Living Trust the only kind of trust I can, or need to, use?

There are a wide variety of trusts available and each is useful to different people in different situations. If, for example, you care for a child with disabilities and want to ensure the child has financial security if you were to die, you can create a special needs trust. This is not the same as a living trust and has different limitations and requirements. Regardless of your needs, you should talk to an attorney so he or she can advise you on the kind of trusts that may fit your needs and desires.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Fact 1: You can nominate a guardian through your Will.

North Carolina law allows all parents to nominate a guardian who will care for any of the parent’s children under the age of 18 should the parent die. Such guardians are known as testamentary guardians because they are nominated through the parent’s last Will and Testament. Upon approval by the court, the guardian will have the same authority to raise the child as a parent would.

Fact 2: You have to make sure your Will is valid.

While you can name your guardian in your North Carolina Will, an improperly created Will can result in your nomination not becoming the guardian. In the event your Will is determined to be invalid, the court will have to make its own determination on who should become a guardian. The person you nominated may still become guardian, but there is no guarantee that this will happen.

Fact 3: North Carolina courts will generally go along with a parent’s choice, but not necessarily.

When a parent, or parents, nominate a testamentary guardian, the courts in North Carolina will give this choice preferential treatment when naming a guardian, though it won’t necessarily approve the nomination in all situations. If the court finds that naming someone else would be in the child’s best interests, it will name that person instead of the person nominated in the Will.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Danger 1: Probate eats up your child’s inheritance. If you don’t have an estate plan, your property will have to go through the probate process before your children and inheritors can take possession of it. Though the probate process doesn’t usually take up as much time or money as people may fear, it can be a laborious process. When combined with estate or inheritance taxes, it can significantly reduce how much money you leave to your children. A good probate attorney costs money, and that money will have to come from your estate.

Danger 2: Your property may go to those whom you do not wish to receive it. Many people are surprised to learn that state laws already determine who receives your property if you die. These laws, called laws of intestate succession, exist in all states, and unless you create a valid will they will choose for you who inherits your property. Without an estate plan, your property may pass to your parents, your siblings or some other family member even if that was the last thing you wanted.

Danger 3: It can hurt your family. If you’ve spent your life caring for your family, being there when they needed you, protecting them and providing all the support you can muster, the failure to have an estate plan can ruin this legacy. Without an estate plan your family may end up fighting over your possessions, they may have to make difficult decisions about your medical care without any guidance from you and they may spend endless hours in needless worry and emotional turmoil.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.

Myth 1: I don’t need an estate plan because I’m not rich, or sick, or elderly.

Reality: The only people who don’t need an estate plan are those who are under the age of 18. Everyone else can benefit from some kind of estate planning, whether it’s creating a will, a medical directive or establishing a trust. Even if you don’t have a lot of money, or a spouse, or children, you will want to create a plan that allows your wishes to be met when you aren’t able to express them.

Myth 2: All I need is a will.

Reality: Your will is just the beginning. A will is a great tool to have, but it isn’t the end to your estate planning efforts. Also, your will becomes less and less important depending on what kind of estate plan you create. If you want to avoid probate by, for example, creating various trusts, your will may not be as important. The key point here is that each person’s estate plan depends on his or her desires, and a will is not a solution to every desire you have.

Myth 3: If I create a living trust, I will have to give my property away.

Reality: You still maintain control of the trust property. A living trust allows you to maintain control over your property even though you are no longer the legal owner. The difference may seem like hair-splitting, but it can be quite beneficial in estate planning.

The Law Offices Of Cheryl David is a member of the American Academy of Estate Planning Attorneys.