402.398.3040 | 7602 Pacific Street Omaha, NE 68114

Planning for Special Situations

Supplemental Needs, Special Needs and Spendthrift Trusts/Guardianship & Conservatorship

Each Client's Situation is Unique

At Badura & Wintz Law, we have in-depth experience in planning for remarriages and blended families, tax planning, and elder law issues that we incorporate appropriately into estate plans.

Sometimes, special types of trusts are needed.

Although we hope that it will never be needed, we frequently recommend incorporating special types of trusts into client’s estate plans should they ever be needed. These trusts may include:

  • Supplemental Needs Trusts, to assure that an inheritance will be available to improve quality of life while not accidentally disqualifying a beneficiary from qualifying for governmental means-tested benefits such as Supplemental Security Income, housing assistance or Medicaid
  • Trusts for minor beneficiaries such as grandchildren to avoid the need for an unnecessary conservatorship or to promote aspirational intentions such as promoting pursuit of higher education
  • Standby on-going Spendthrift Trusts, if a beneficiary has difficulty managing financial affairs or develops a wasteful addiction for which treatment is a better alternative than an outright inheritance

We also assist families with Special Needs Trusts. The primary goal of a Special Needs Trust is to preserve an individual’s means-tested government benefits by setting aside their own assets to be used to improve the quality of their lives and providing benefits that are not available through government programs.

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Guardianship And Conservatorship

At Badura & Wintz Law, we work with clients to make Guardianship and/or Conservatorship court proceedings unnecessary. However, in cases of personal or financial abuse, we are here to help those who seek to protect a vulnerable person.

Guardianships and Conservatorships are court proceedings to protect persons who are unable to make responsible decisions about their finances, property, living situations or care.

We Protect Your Rights

A Guardian is the protector of the person. In a Guardianship proceeding, a court transfers some or all of the personal decision making authority for a protected person to another person. Guardians make decisions such as where the protected person will live, medical decisions, and accessing services.

A Conservator is the protector of the financial affairs of a protected person. A Conservator’s powers typically include the powers to enter into contracts, receive income, buy and sell assets, pay bills, and perform other financial functions.

Guardianships and Conservatorships can be effective safeguards to protect vulnerable persons from exploitation and abuse. However, establishment and maintenance of a Guardianship or a Conservatorship is one of society’s most drastic interventions; because they remove many fundamental human rights of self-determination, reduce self-reliance and self-respect, and diminish social respectability.

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Consider Your Options

At Badura & Wintz Law, we believe Guardianships and Conservatorships should be used as a last resort, and less restrictive decision-making options be considered first.

 In many cases, a vulnerable person still possesses the legal capacity to name a trusted person or corporate fiduciary through their Powers of Attorney and/or Trust.

In most cases, a Guardianship and Conservatorship will never be needed when a client has done advance planning and named persons who will manage financial, living arrangements, and health care through the use of a Durable Power of Attorney for Financial Affairs (possibly combined with a Revocable Living Trust), a Durable Power of Attorney for Healthcare Decisions, a HIPAA release, and an Advance Directive (also known as a Living Will). To learn more about Powers of Attorney and Advance Directives, click here.

Most Guardianships and Conservatorships are time consuming and expensive on-going court supervised proceedings that can be avoided with proper planning. At Badura & Wintz Law, before we would commence such a proceeding, we remind the person(s) seeking it, that the person to be protected will be served with notice of the proceeding by a County Sheriff’s Deputy which can not only be frightening, it also can also be infuriating. Just because a person is found to need protection does not mean that the person is unable to make a new Will or otherwise revise their estate plan which could result in the person(s) seeking the Guardianship and/or Conservatorship being disinherited. Of course, there are times when protective measures are necessary such as in cases of personal or financial abuse, and Badura & Wintz Law is here to help those who seek to protect such persons.

Peace of mind is possible

Let Badura & Wintz Law help you get there