Risks of Foster Care Adoption

If you are an Alabama couple seeking to adopt, you may have heard that it is easier to become an adoptive parent if you begin as a foster parent. While this is true, there are numerous concerns and legal complications you may wish to consider before taking steps to become a foster parent.

At Five Points Law Group, our attorneys work to help dedicated and loving families adopt. For help with your adoption or to get answers to some of your challenging questions, call us today.

Becoming a Foster Family in Alabama

First, to become a foster parent in Alabama, there are some rules and minimum qualifications. In general, you must:

• Be at least 19 years of age
• Have a safe home
• Meet the Alabama Minimum Standards for Foster Family Homes
• Have enough space for the child
• Make sure all people in your household are willing to participate in child care duties
• Make sure all members of the household are in good health
• Ensure that all adults in the home are able to pass a criminal background check

Is it Really Easier to Adopt as a Foster Parent?

Sometimes. In order to adopt a child in Alabama, you must petition the appropriate court for permission to assume legal responsibilities for the child. This can be a complex process. In a foster home arrangement, the State of Alabama will first make a determination of your suitability, then once a child in need is identified, that child will be placed in your care temporarily without many of the lengthy proceedings that accompany an adoption. But take note: Foster care is usually temporary.

Assuming the natural parents do not take the legally required steps to regain custody of their child, a court may eventually terminate their parental rights. If this occurs, you will still need to petition for adoption; however, the court will be looking for the best interests of the child. Since that child will have been in your care for some time, foster parents are often preferable as adoptive parents.

So, when things go right, being a foster parent means getting parental custody of an adoptive child earlier and in a more streamlined way.

Problems With Foster Adoptions

Now that you understand how being a foster parent might make things easier, it is important to note what happens when things do not go smoothly. Many times natural parents will begin to improve their lives and get custody of the child again. After being a parent to a young child for months or even years, you could have to return the child to what seems to be an abusive or even unfit home life. Courts are very reluctant to terminate parental rights unless there are serious reasons. This can lead to a painful back and forth, where the child is shuffled from natural parent to foster care and back again. In many situations, a foster family may care for dozens of children before they ever find a child to legally adopt.

How an Attorney can Help

Many times, the most difficult part of the adoption process is navigating the court system and all of the legal requirements involved. A guardian ad litem (GAL) is appointed to interview and investigate in order to help the court make decisions. Often the GAL’s report will make a big impact on the outcome of an adoption. Likewise, there may be conflicting arguments regarding the safety and welfare of a child going back to a natural parent. Having a skilled adoption lawyer on your side puts you in a better position to get the outcome you are seeking.

Call Five Points Law Group today to schedule a private meeting with one of our skilled adoption lawyers in Birmingham.

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How to Protect a Disabled Person’s Right to Public Benefits

If you have a relative who is severely disabled and can not work, you may worry about how that person would continue to receive the public benefits he or she desperately needs if you or someone else in the family were to pass away and leave him or her money. This issue usually comes into play when a parent is planning his or her estate and has a disabled child (minor or adult) to think about. If a parent leaves money to the child, it could disqualify the child from receiving lifesaving benefits, like Medicaid, Medicare, Social Security, and more. So, what is the solution?

At Five Points Law Group, our estate planning attorneys can craft a carefully prepared special needs trust to protect a disabled person’s interests, while preserving his or her rights to public programs and benefits. Here is how these trusts work.

Eligibility for Medicare and Medicaid

For aging parents of a disabled child, it can be a scary time. It may be clear that without public health benefits, a child may have no way to care for him or herself. At the same time, aging parents may want to make sure that their inheritance is not wasted. Thus, through careful estate planning, there are ways to do both leave money to the disabled child, while simultaneously maintaining his or her right to utilize benefits. This is often done through an Alabama special needs trust (SNT).

How Does a Special Needs Trust Work?

There are two kinds of SNTs — a third-party or a first-party trust. The one you use depends on the circumstances.

• First-party trusts: A first-party trust is one that is funded using a disabled adult’s own money. This is commonly used when the disabled individual has come into money from some outside source, such as through a personal injury action or an inheritance that was not planned in advance. Perhaps a relative has given the person money. In these situations, the disabled person can establish a trust that protects the money, while maintaining eligibility for SSDI, SSI, or other benefits. There are strict rules about how the money can be spent, and regarding pay-back provisions to Medicaid after death.
• Third-party trusts: This type of trust is settled (or “funded”) by someone other than the disabled person. Usually, this is the best option for relatives who want to leave significant assets to a person with disabilities. Under federal and state laws, the money can be used to pay for things that may not already be covered by Medicaid or Medicare, such as certain medical costs, daily living support, or adaptive devices. Since the money never technically becomes the property of the disabled person, it remains largely protected against spend downs and pay-back provisions.

To discuss this option with a skilled estate planning attorney near you, call Five Points Law Group today.

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Is Open Marriage More Likely to End in Divorce?

In recent years, so-called “open marriages” have gained increased popularity. This is especially true of millennials and younger couples who seek to avoid some of the formalities and traditional trappings of wedlock. The reasons for an open marriage are just about as varied and diverse as the people who choose to engage in them. If one reads an article from 2007 and compares it with a psychological study from 2017, chances are there will be a widely differing set of conclusions. In some ways, this belies the fact that religious, institutional, and cultural views may shape outcomes just as much as anything.

However, where the law is concerned, adultery is still adultery. If you are considering an open marriage in Alabama, it is important to understand some of the pitfalls and legal consequences. At Five Points Law Group, our experienced attorneys understand many of the complex nuances of divorce. If you need help, give us a call to speak with an attorney who can help counsel you through your divorce in a non-judgmental and caring manner.

What is an Open Marriage?

If you ask 10 people, you will probably get about five different answers, but an open marriage is simply a marriage in which there is an element of mutually accepted infidelity. In other words, one or both spouses are free to engage in extramarital sexual relationships, usually subject to a number of agreed-upon rules.

Does Mutually Accepted Infidelity Strengthen or Weaken a Marriage?

It is hard to say, but a 2007 article from WebMD shows just how far therapists and society in general have come on this issue. In the 2007 article, the quoted therapists seem to disagree that an open marriage can be good for a healthy sex life or marriage, even saying that such marriages account for less than 1% of all marriages.

Just years later, a 2017 article by Deborah Anapol, Ph.D. published in Psychology Today emphatically proclaims that there are many highly functional polyamorous marriages, including some that last for decades.

The New York Times also recently did a lengthy piece on the pros and cons of open marriages, which portrayed these relationships as a personal choice and one that increasingly more Americans – especially women – are choosing.

So, what is the truth? Do they lead to divorce or not? It is tough to say for certain, but only about one in eight spouses leaving open marriages claim that the open nature of the marriage was the cause of the divorce.

How Alabama Law Views Open Marriages

In general, adultery remains a formal ground for getting a divorce. However, if a spouse commits adultery and the aggrieved spouse accepts that person back and re-engages in a sexual relationship, that ground for divorce is severed. This is thanks to a very old Alabama statute known as condonation. Therefore, if you are in an open marriage and your spouse seeks a divorce due to adultery, evidence of the open marriage may be used to destroy that reason for divorce.

Prenuptial Agreements are Wise

While an open marriage may be just as successful as a more traditional relationship for some, given the extra layer of complexity and the fact that the law does consider extramarital relations a ground for divorce, couples choosing this type of relationship may be wise to speak with an attorney about a prenup or antenuptial agreement that sets forth the relationship and terms of dissolution in advance, in the event either person wishes to change the arrangement later.

For help with a divorce or setting up a prenup or post-nuptial agreement, call Five Points Law Group today.

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When a Nursing Home Will Not Take Your Power of Attorney

You did everything right. You had a power of attorney created for your aging loved one, and even had the loved one sign it. Everything was supposed to be handled, and then it happened. The day came that you needed to place your loved one in an Alabama nursing home, but the nursing home is not honoring your power of attorney. If this describes a familiar situation, you are not alone. Thousands of nursing home residents throughout the state do not have valid powers of attorney. When this happens, it can be frustrating and intimidating, but there is good news. You can still accomplish your goal of protecting and caring for a loved one, even if the power of attorney is not sufficient.

What is a Power of Attorney?

First, it is important to understand the values and limitations of powers of attorney. These are simply legal documents that act somewhat like contracts. One person gives another person the right to make specific decisions for them, in the event they can not do so. A durable power of attorney is designed to last until death and provide an ongoing and uninterrupted ability to make certain decisions for someone else. The most common types of decisions included in an Alabama power of attorney are:

• Financial decisions
• Real estate decisions
• Medical treatment choices
• Obtaining medical records
• Talking to doctors about the person’s healthcare

Of course, powers of attorney can also limit these powers. Some people might want to give a loved one the right to make some healthcare decisions for them, but they may want to limit that power in some way.

Is the Power of Attorney Valid?

According to Section 26-1A-105 of the Alabama Code, a power of attorney is “presumed” to be valid if:

The principle signs it or directs another to sign it in the presence of a notary public. The principle must acknowledge signature before the notary. In addition to these basic formalities, the principle must be competent to create a power of attorney. While competence is presumed, it can be challenged. If someone learns that the individual signing the document lacked mental capacity to do so, they could bring a court action to invalidate the power of attorney, especially if it was fraudulently created or made through some form of undue influence or coercion.

Why a Nursing Home Might Refuse to Accept a Power of Attorney

While a power of attorney may be valid based on proper formalities, there are numerous reasons why a healthcare provider, including a nursing home, may not accept it or wish to honor it.  These may include:

• The document does not specifically authorize health providers to speak with the agent
• The document only covers financial decisions
• The document only covers healthcare (and not financial matters)
• There are specific exclusions listed in the power of attorney
• There are suspicions of abuse or neglect
• The nursing home suspects the person lacked the ability to make the power of attorney

What to do When a Health Provider Refuses to Honor a Power of Attorney

There are several options. First, you can attempt to file legal actions to enforce the power of attorney. Of course, these are often quite costly and may just lead to lengthy litigation. On the other hand, if the power of attorney is not working, you can also petition a court for a guardianship or conservatorship. If successful, you will receive a court order, granting you the right to make certain decisions for your loved one.

To get help with this process, call Five Points Law Group today.

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Paying for a Divorce When You are Not Working

In many marriages, especially those with children, one spouse often acts as the sole or primary breadwinner for the entire household. In these marriages, the stay-at-home spouse may rightfully be concerned about a number of issues in divorce. Perhaps the most troubling issue for many is how to pay for a divorce. When one spouse controls the funds for the family, it can seem hopeless. The good news is you have options.

Changes in the Marital Unit

In a study by the Pew Research Center, data revealed that in 1960, about 70% of households included a single income-earning parent – usually the father. By 2010, the number had dropped to just over 30%. This means the average family in America today has a completely different makeup than it did just 60-70 years ago. With two parents working, divorces have become a bit more complicated, as has the process of financing a divorce. However, for those in the minority who are stay-at-home parents, it can often be a real concern to pay for a divorce.

The Income Earner can be Ordered to Pay the Cost of Your Attorney Fees

While every divorce is unique, when it comes to divorce, courts seek to balance the situation fairly. If you are not working and are primarily responsible for maintaining the home and caring for young children and your spouse works outside the home, you may be able to petition for your attorney’s fees to be paid by your spouse. It is not a sure thing, but it can work. Here is generally how this works.

Getting Your Spouse to Pay Your Legal Bills

Under Section 30-2-54 of Alabama’s Revised Statutes, you may be able to recover attorney fees if your spouse is in contempt. This can happen when you incur legal bills while attempting to enforce certain court orders, such as temporary maintenance or child support.

The other way to get your legal bills paid, however, is by having your attorney petition the court to award them. The courts favor both parties being represented by experienced legal professionals, as it cuts down on delays and ensures fairness. If you have no income, most judges will recognize the need for your attorney to be paid out of your marital estate. In other words, the income-earning spouse can be ordered to pay.

If you are concerned that your spouse will not be able to afford your fees and his or her own, just remember that a judge will have to review any petition for fees, and that same judge will be aware of your collective assets and debts. Therefore, a good attorney can usually tailor a divorce to suit just about any budget, assuming the parties can reach reasonable agreements without extended litigation.

Talk to an Attorney as Early as Possible

If you suspect you will need to have your spouse pay for your legal bills, contact Five Points Law Group today, as we can often help you plan and prepare for this process. Early planning is key. Just remember that the more information you have going into a divorce, the better your decisions will be.

Throughout Birmingham, the attorneys of Five Points Law Group are here to help, so call today.

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Legal Problems do Not Happen in a Vacuum

A woman was at work and her supervisor started making suggestive remarks that were clearly inappropriate. She told him to stop, but it did not end there. In fact, it got worse. Soon, it seemed like every time she passed him in the hall, there was an unwelcome comment. Sadly, over the course of several months, her marriage began to struggle. She was frustrated with work, her interest in sex and her relationship had diminished, and eventually her husband filed for divorce.

She decided to do something about the problems at work. She filed a sexual harassment lawsuit and ended up receiving a sizeable settlement offer based on her high rate of pay. Before she could even get the check, however, she was informed that she may need to split it with her ex-husband.

If this scenario seems strange or uncommon, rest assured it is not. In fact, it is quite normal. Millions of Americans struggle with marital trouble and many opt to end their marriages each year. Of that number, quite a few are simultaneously dealing with other problems that are legal in nature. At Five Points Law Group, our attorneys have the broad and diverse skills needed to tackle complex problems, even when several legal issues are occurring simultaneously.

What Happens to Discrimination Settlements in Divorce?

The example above is a classic case of a person receiving a settlement from a personal injury or workplace harassment suit while in the middle of a divorce. Because the money is designed to reimburse or make the individual “whole” again, most divorce courts will say the money is part of the marital estate. This means it could arguably become part of the property to be divided in the divorce. If you are using two different attorneys for these matters, it is a great reason to make sure they are talking to each other.

Divorce and Your Estate Plan

A lot of people think their divorce will end everything once and for all. It does not. There are a lot of things that linger after a divorce. Your estate plan is one of them.

Fortunately, under Section 43-8-137 of the Alabama Probate Code, divorce severs your bequests to your ex-spouse, as it is not the sort of thing you want to leave up to chance. Plus, things like powers of attorney, advanced directives, living wills, and trusts all should be immediately updated the minute you even think about filing for divorce. Also, you will want to be quick about updating beneficiary designations like life insurance, deeds, and 401(k) accounts. Divorce does not automatically change those at all.

The Five Points Approach

With attorneys individually skilled in multiple areas of the law, our group of skilled legal professionals can carry you through just about any challenge. Perhaps you are receiving money through a settlement and wish to protect your rights in a divorce, or maybe you are facing a divorce battle and want to protect your heirs from losing an inheritance. Whatever it is, make your first call Five Points Law Group, and let us help you today.

 

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When Life Changes So Should Your Estate Plan

For some people, making a will is an unpleasant task. Confronting one’s own mortality can make a lot of people uncomfortable, so once the task is complete, it is rare for it to be revisited years later. However, this may not be the best way to look at an estate plan.

Sometimes it makes sense to take a second look at the way things were set up previously. This is especially true when you go through major life events. When life changes, so should your estate plan. At Five Points Law Group, we are here to help.

Big Reasons to Change Your Estate Plan

There are several major life changes that could prompt a person to want to take a second look at his or her last will or powers of attorney. A few common scenarios are:

• • Children: The birth or adoption of a child or grandchild is an exciting life event and a great reason to review and make changes to your estate plan. Because it is unwise to leave assets to a minor child, a will or trust can ensure that children or grandchildren get the full intended benefit of your estate while protecting them against unnecessary court costs and waste of your estate assets. A will can also provide important instruction to the court on your designation of guardian in case one is needed for a minor child. Additionally, once children are grown and may even have children of their own, you may want to make different provisions for them or for their children.
  • Divorce: If you made a will while married but then later got divorced, it is probably a good idea to change your will. The good news is you typically cannot leave your estate to an ex-spouse by mistake. This is because under Section 43-8-137 of the Alabama Statutes, any bequest made to a spouse is automatically invalid upon divorce. This does not mean you should still keep your estate plan the same after a divorce. After all, your previous choice to leave everything to a spouse may fail due to divorce, but this means you may not have made adequate arrangements for others in your estate plan.
  • Health Conditions: Another reason to change your will or powers of attorney is a major change in health condition. For instance, you may have drafted and signed a simple power of attorney when healthy. Today, however, you may be contemplating the possibility that you could need long-term care, home health care, a nursing home, or even hospice someday. With this in mind, there are certain options a skilled Alabama estate planning lawyer can use to modify your wishes to suit your own unique health situation.
  • Assets: Finally and perhaps most obviously, if you made a will or powers of attorney when you were younger or at a time in life when you had limited assets, it may have been a simple and uncomplicated plan. If years have passed, you may want to take a look to see if your estate plan can adequately protect your estate today. If you have earned significant income or amassed a large amount of savings, then you may be better served with a revocable trust or other planning tools.

How an Alabama Will and Trust Lawyer can Review Your Plan

At Five Points Law Group, we go the extra mile to make our clients comfortable. We know that talking about death, disability, and final affairs is never fun, but it can be a refreshing and renewing process. After all, revisiting your estate plan later in life allows you to take stock of accomplishments and truly appreciate how far you have come. So call us today to discuss your plan with an attorney near you.

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