Guardianship Vs. Power of Attorney: What’s the Difference?

Power of attorney and guardianship both authorize someone else to act on the behalf of a person who is incapacitated or unable to make decisions about their health, finances and other issues. However, there are significant differences between the two, namely, timing. If you are thinking about creating powers of attorney or need assistance with a guardianship, seeking the counsel of an experienced estate planning lawyer is vital.

Timing is Everything

Although both the power of attorney and guardianship allow an individual to make decisions for another person, it is important to understand the differences. A power of attorney is created and executed before a person becomes incapacitated, while guardianship is may be granted by court order after someone is no longer able to make competent financial and health care decisions.

Why Creating Powers of Attorney is a Good Idea

Powers of attorney are very common legal documents that can make things a lot easier for your loved ones in the event of your incapacitation. Having family wills and trusts lawyers draft specific powers of attorney ahead of time gives you the opportunity to name someone you trust as your representative and advocate. Guardianships involve a more complex and costly process, as the court determines who will be authorized to make decisions for you. It’s important to note that in Pennsylvania, a guardian may be given many powers on behalf of an incapacitated person. Powers of attorney are often much more limited in scope.

The Guardianship Process

For a guardian to be appointed, either a potential guardian or someone who wishes to nominate an individual to be a guardian must file a petition with the appropriate court. That person then becomes the “petitioner” and has to serve the petition on the person for whom they wish to have a guardian appointed. That person is then known as the respondent. The petition that is served on the respondent must include specific language that details how their personal rights may be affected by the guardianship and the reasons why a guardianship is being sought.

In a guardianship proceeding, a judge will hear evidence surrounding the person’s mental and physical capacity. If the court determines that a guardian is necessary, they will appoint one—usually a spouse or adult child. If you’re seeking a guardianship, it is filed in the local probate court. There are many common errors that can hold up the process. A skilled probate attorney can ensure that your petition is completed and filed correctly so the process is not delayed.  Anyone, including the potential ward and their friends and family, is entitled to object to a guardianship.  Although courts typically give preference to family members, if they are unsuitable to serve as guardian, the judge may appoint a public guardian.

Are you ready to start estate planning or need assistance with a guardianship? Our team at Carosella & Associates can help you create a plan that ensures your rights and interests are protected

This blog was originally posted https://carosella.com/guardianship-vs-power-of-attorney-whats-the-difference/

Best Practices for Business Management & Operating Agreements

Starting a new business is exciting, but it is important to make sure proper management & operating agreement is in place before you begin your new enterprise. A corporate business attorney can help you create a comprehensive agreement that outlines each person’s roles, responsibilities, and rights. A solid contract can also provide an exit strategy in the event of a shareholder’s incapacitation, passing, or leaving the business.

Rights & Responsibilities

Business owners typically make a capital contribution to a new start-up, whether it is cash, real estate or other assets. It is critical to include each owner’s contribution and to be specific when defining ownership rights and profit-sharing. Outlining how initial capital will be spent is important as well. Your agreement should also include a contingency plan in case your new business needs additional investment before turning a profit.

Being specific about how the earnings from a business will be distributed is vital. Ambiguous clauses and other uncertainties can cause serious problems once you start turning a profit. If members are drawing a salary at the beginning, make sure amounts are clearly stated and include any provisions for future raises. If the intention is to repay seed capital, your agreement should specify at what point this may happen. It is also imperative to define how future distributions and will be allocated.

The more specific you are about each shareholder’s rights and responsibilities, the better. The agreement should outline how important decisions will be made. Will you use a “majority rule” or consensus approach? Will one person have the final say when it comes to making decisions? Hashing these things out can also help you understand one another’s approach to day-to-day operating s and how the business will be managed. Sometimes business owners simply cannot agree. Having an experienced business contract attorney draft your management & operating agreement can help you resolve conflict more easily and avoid headaches down the road.

Dissolution of the Business

Although no one likes to think about things not working out when starting a new business, health crises, death, disputes, and other issues can arise. Include clauses in your agreement that provide a strategy for buying out a member’s interest or taking on their responsibilities in the event that they can no longer continue. In addition to including these things in your management & operating agreement, it is a good idea to have a business succession planning lawyer help you create a separate business succession plan that addresses these issues and scenarios in more detail.

Keep Your Agreement Current

Change is inevitable. Your business may expand, a founding member might leave, or you may bring new members on. These are just a few of countless potential unforeseen events that can affect the stability of your enterprise and change the way you do business. Reviewing your management & operating agreement with an attorney periodically and making adjustments as you go can ensure everyone’s rights and interests are protected.

If you need help creating a well-crafted management & operating agreement and business succession plan, our team at Carosella & Associates can guide you through the process and ensure all your legal bases are covered.

This blog was originally posted https://carosella.com/best-practices-for-business-management-operating-agreements/

How Spousal Support is Determined in Pennsylvania

Also called spousal support, alimony is an ongoing payment one spouse makes to the other to provide financial support during and/or following a divorce. If the couple can’t work it out between themselves, there are three types of support orders that may be issued by the court. If you’re seeking a divorce, a local divorce attorney can help you understand how it is determined and advise you on the options available to you.

Types of Support & How They are Calculated

Spousal support is an order that is made after parties separate, but before a divorce is final. A judge may even order it before a divorce action is filed.

Alimony pendente lite is a temporary order made after a divorce is filed but before it is finalized. Spousal support and alimony pendente lite cannot be in place at the same time.

Pennsylvania uses a specific formula to calculate spousal support and alimony pendente lite. The spouse who receives support gets 40 percent of the difference between both spouses’ monthly net income. If children are involved, it is 30 percent, as the parent providing spousal support is most likely paying child support as well.

The court also considers the needs of the spouse seeking support and the incomes of both parties. In certain circumstances that involve unusual needs or circumstances, the calculation formula may vary.

Calculating Alimony Post-Divorce

Alimony is a support order that is made at the time or after a final divorce decree is entered.

There are no specific calculations for determining whether alimony is appropriate, the amount, and the duration of payments. Pennsylvania law requires the courts to consider the following factors:

• Both parties’ income and earning capacities
• Both spouses’ sources of income, such as medical insurance, annuities, and other sources
• The age of both spouses
• The physical, mental, and emotional health of the spouses
• Duration of the marriage
• Whether one spouse contributed to the partnership as a homemaker
• Expenses and limited earning capacity due to having custody of a minor child
• Both parties’ existing inheritances and any property they are expected to inherit
• Whether either spouse supported the other’s training, education, or increased income during the marriage
• Both spouses’ education and how long it would take for the spouse requesting for alimony to finish the training or education required to find adequate employment
• The standard of living during the marriage
• Assets and debts of each party
• Separate property each person brought to the marriage
• Each party’s financial needs
• Misconduct that had a financial impact during the marriage
• The tax implications of alimony for both spouses
• Whether the spouse requesting alimony has enough property to meet reasonable needs
• Whether the party requesting alimony is unable to support themselves through reasonable employment.

If you and your spouse owned a business together and decide to dissolve it, business dissolution lawyers or business contract lawyers can advise you on how to best protect your rights and interests.

Duration of Alimony

The duration of alimony depends on specific circumstances. An order may be ongoing with no end date or it may have a specific end date. Courts may review and modify an order if circumstances change. An alimony order will end automatically if the person receiving alimony gets married, is living with a new partner, or if either of the spouses passes away unless the order specifies that it will continue.

Do you need assistance with divorce, alimony, or other family law issues? Our team at Carosella & Associates can help.

This blog was originally posted https://carosella.com/how-spousal-support-is-determined-in-pennsylvania/