Archive for the ‘Guardian’ Category

What happens to my social media if something happens to me?

Tuesday, September 26th, 2017
This year, the Uniform Fiduciary Access to Digital Assets Act went into effect in Virginia.  This Act has important privacy concerns for users of social media, emails, and other digital assets.  The bill allows for fiduciaries to manage digital property.  Electronic communications, however, are restricted unless the user consents to such access prior to death or incapacity, or if ordered by a court.
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Who are fiduciaries?

Fiduciaries include agents under a power of attorney, trustees acting under a trust, and executors and administrators of a deceased individual’s estate.  Court appointed guardian and conservators are also fiduciaries.

What are digital assets?

Digital assets are electronic records in which an individual has a right or interest.  It does not include the device on which the records are stored.  Virtual currency, web domains, and computer files are examples of digital assets.

What are electronic communications?

Electronic communications are communications in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptic system.  It includes text messages, e-mails, and social media messages.  It does not include wire or oral communications, tone-only pagers, communications of tracking devices, or transfer of funds by a financial institution. 

How can I consent or prohibit access?

Consent, or prohibition, of access may be given in the power of attorney, will, or trust naming the fiduciary. 
Some custodians have a terms-of-service or online tools that allow a user to designate a recipient or prohibit disclosure to named persons.  The use of such an online tool will override any contrary directions in the user’s power of attorney, trust, last will and testament, or other writing.  The written consent or prohibition in power of attorney, trust, last will and testament, or other writing, however, overrides a terms-of-service agreement that does not require the user to take affirmative action other than a generic assent to the terms of service. 
In other words, the online tool provided by a custodian of electronic communications or assets will be honored if the user takes an extra step to consent to or prohibit disclosure, or consents by some means other than the generic “I accept terms and conditions” button.  If the online tool does not have this affirmative action, then the estate planning tools can be used to consent or prohibit access. 

What is a GAL and why did the judge appoint one in my case?

Tuesday, May 15th, 2012

If you are charged with a crime, and there is a possibility that you might be sentenced to at least 6 months in jail, and you cannot afford an attorney, the Judge can appoint an attorney to represent you in that case.  This attorney is appointed to advocate on your behalf and to assist you in your defense.

The Court in Virginia can also appoint another type of attorney if your situation meets the criteria set by the court, and the Judge feels it is appropriate.

‘GAL’ stands for ‘Guardian Ad Litem’.  There are two parts to this term.  Part one is ‘Guardian’ which means someone who acts for the benefit of another, and part two is ‘Ad Litem’ which means ‘for the Lawsuit’.  So, the court may appoint someone to act for the benefit of another for the purpose of the lawsuit.  The person that is appointed by the court is called the ‘GAL’.

The court may appoint a GAL when a party to the lawsuit is incapacitated in some way.

Most of us think of incapacity as having a mental or health disability, and this is considered a physical incapacity.

Someone is also considered legally incapacitated when they are unable to attend court themselves.  This might be because they are in the military and stationed away from home.  Or perhaps the person can’t be found because none of the persons involved in the court case knows where they live now.  Or perhaps they are incarcerated.

In all of these situations, a GAL can be appointed to represent the adult who is not able to represent himself.  The role of the GAL in these cases is to make sure that the adult is treated fairly in the legal case and that any decision that is made by the court is not going to permanently put the represented person at an unfair disadvantage.

Another type of incapacity is based on age.  A person under the age of maturity, which is the age of 18 in Virginia, is also considered legally incapacitated.

If a child, under the age of 18, is charged with a crime it is possible that the court will appoint both an attorney to defend the child against the criminal charges and a GAL to look out for the best interests of the child.

Another time when the court might appoint a GAL is during a legal case regarding custody or visitation of a child.

When parents are fighting over custody and visitation of their children, the courts base their decisions on the best interests of the child.   Most of the time, the parents really do believe that what they are trying to do is in the best interest of the child.  But everyone must understand that the parent’s vision of the best interest of the child is colored by the position of that parent.  That is why the courts will often appoint a GAL to represent the best interest of the children.

The GAL does not represent either the mother or the father, and if either parent wants to have an attorney, they should retain one on their own.

The GAL  for the child has the ability, and the duty, to look at all aspects of the child’s life.  The GAL is able to talk to the child’s teacher, doctor, day-care provider and any other person that can bring input about the child’s life.  The GAL also talks with each parent and will usually do a visit to the parent’s home, generally while the child is there so the GAL can see how the child and the parent interact with each other.

If the child is old enough, and mature enough, the GAL will listen to what the child wants and take the child’s desires into consideration.  But, the GAL is not there to advocate for what the child says he/she wants.  The GAL is there to report on the situation and to make a recommendation on what is in the child’s best interest.

The GAL might provide a written report to the Judge before the trial, or the GAL report might be given as oral testimony at the trial.  In either case, the Judge will consider the GAL report as one additional piece of evidence to be considered.

The Judge is the one that makes the final determination.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Back to School Emergency Cards

Sunday, August 14th, 2011

It’s time for a new school year and that means shopping for school clothes, meeting new teachers, and filling out emergency cards.

The emergency cards can be helpful in telling the school who is authorized to pick your kids up from school if you aren’t able to be there.  And it can help to make sure that your child is not sent home with a stranger pretending to be a relative, or anyone else that you do not want to be around your children.

What these emergency cards can’t do is authorize someone to temporarily take custody of your children if a serious accident happens to you during the school day (or any other time).  if something happens to you, the authorities can only leave your kids with their legal guardian.

So what happens if there isn’t a legal guardian?  The authorities will find someone in the foster care system to take care of your kids until ‘things can be worked out’.  That means that your kids will be with strangers during this emotional and difficult time.  Not with the neighbor who knows them or the parent of their friend from school.

Most parents know they should name a guardian for their kids in their Will, but a Will only becomes meaningful after your death, and even then it may take days or weeks to find the document and get it entered with the court.  What about in the meantime?  And what if you are injured and in a hospital instead of deceased?

In Virginia, you can draft something called a ‘standby guardianship’ which tells everyone who YOU want to have custody of your children if you are not able to take care of them yourself.

This important document should be drafted by every parent and reviewed on at least an annual basis to make sure that it contains your current wishes.  There may have been a change in your life, and there may have also been a change in the life of the neighbor or friend you had named before.  You should also make sure that your babysitter knows how to find a copy of this document, and a copy should be given to the school as well as the person named in your document.

We all have busy lives and we forget to do some things.  As you are filling out the emergency cards for school this year, take a minute and review your standby guardian designation to make sure it is still valid.  And if you don’t have a standby guardian for your minor children, now is the time to get this important document!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.