New Developments for a Change! 05/07/2024
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Spring greetings, everyone! I was going to grouse about the weather taking forever to perk up, but today looks like it's doing its best to keep my mouth shut. I'm keeping my fingers crossed, though, about whether it was premature to take the plowing stakes down along the driveway. What do you think?
When I started writing this, I was going to say there was no central theme and just offer some observations that might be of help in avoiding troublesome situations. However, that changed when I decided you should know about one fairly recent and one brand new State law that might be even more helpful in certain situations.
The recent law establishes a new planning document for what's being called "supported decision-making". It's sort of a guardianship light process, in that it allows a person who may be somewhat disabled but is still mentally competent to designate one or more "supporters" to assist the "principal" in making "life decisions" while still retaining all of their legal rights. It's a long statute, so I can't cover all the ins and outs, but here are some of the highlights.
This new creature of the law has to be established in writing and executed as required, and it has to describe with some specificity the kinds of "supported decision-making" the supporter(s) is authorized to provide. These might include assistance with physical and mental health care; managing and using income and assets; obtaining support services; securing employment; obtaining food, shelter and public benefits; and assisting with education issues. Those are typical guardianship functions, as well, but the new arrangement can be revoked by the principal, while a traditional guardianship can only be terminated by a court. Likewise, in a guardianship the guardian actually makes the decisions for the "ward", whereas this supported arrangement still leaves the official decisions in the hands of the principal.
I see this new hybrid creation as a way of taking some of the sting out of the usual guardianship process, in that it doesn't require a contested, protracted and expensive court proceeding and it may be much less objectionable to a disabled individual than having all independent decisions taken away and given to a third party against the principal's will. That's an improvement in itself, as real guardianships are some of the most unpleasant and divisive proceedings there are in the law. If you have specific questions about the statute beyond the thumbnail sketch I've provided, please let me know.
OK, on to the new law that goes into effect on July 1. This one creates an entirely new kind of conveyance of New Hampshire real property, in that it allows the owner(s) of a residence or unimproved land or a combination of both to create a "transfer on death deed". That is, a deed that becomes the property of the recipient upon the death of the current owner or owners of the property. Once such a deed is executed and recorded like any other deed, the recipient becomes entitled to the property once the lifetime owner dies - or when the last of the current owners dies if there are more than one. Until then, though, the current owner remains the owner and is responsible for paying the taxes and insurance on the property and would also be liable for any of the typical damages or injuries that might result from property ownership.
As with "supported decision-making" arrangements, however, there are quite a number of technical wrinkles about how these new legal creatures will function. For example, if a parent executes such a deed in favor of a child, but the parent later changes his/her mind about that decision, the parent can revoke the deed prior to his/her death, by recording a revocation deed in the registry, or even by recording another "transfer on death deed" to a different recipient - like a brother or sister. So, kids, you'd better still write appreciative thank you notes when your parents send checks on your birthday or you may find that your doting sibling ends up with the homestead.
The full impact of these deeds is not yet known, of course, but it looks like one use may be to enable people with residences that might otherwise be transferred into revocable trusts in order to avoid probate, to have those properties go to their children without the need for a trust. Still, if these deeds must be recorded within 60 days of execution - which is a requirement - that may make some owners uncomfortable that their planning arrangements are getting exposed to public view. Likewise, if an owner might want to revoke one of these deeds, but can no longer do so due to incapacity, that may result in an unintended transfer occurring. Perhaps some owners may now want their durable powers of attorney to include this kind of revocation authority - while others may not want their plans upset under any circumstances.
Who says the law is a stagnant morass? With fast-moving changes like these upsetting our applecarts, life in the legal trenches is pretty exciting these days. And, of course, the skeptics will complain that these are just more ways for lawyers to feather their own nests - to which I say, I'm shocked and deeply offended, but ready to help if the need arises!
Posted 02/06/2020 - Misc.