FAQ
Below are some answers to frequently asked questions regarding Guardianship & Estate Planning and Commercial Real Estate.
Guardianship & Estate Planning
- What is a fiduciary?
- Who can be a fiduciary?
- What is a Guardianship?
- What is a Conservator?
- How are Guardians and/or Conservators appointed?
- How extensive is the Firm’s Fiduciary practice?
A fiduciary is responsible for financial or personal decisions for an individual. The fiduciary is held to a strict standard of performance, obligated to make decisions about money, property, or health care that are in the best interests of the individual without regard to the benefit or advantage of the fiduciary.
In the past, fiduciaries were likely to be banks or trust companies or attorneys. That remains true today, but the modern view is that anyone may serve as a fiduciary. For people unable to handle their own decision making, courts appoint guardians to make medical decisions and conservators to manage finances. For probate estates, courts recognize executors appointed in wills as fiduciaries, and appoint administrators for estates where no will is available. An individual can also use a power of attorney to designate an agent who serves as a fiduciary.
An individual who is unable to make decisions for his or her care needs and make housing choices may require a court appointment of an individual, a guardian, to make such decisions acting with or in place of the ward. In Virginia, the guardian is limited to non-financial decisions, and need not be a relative of the ward or a Virginia resident.
In many states, the term “guardian” means both the person who makes health care decisions and manages finances for an incapacitated person. Virginia makes the distinction between a Guardian with health care responsibility and a Conservator, who can be appointed to take control of the ward’s funds and assets. The same person can be appointed to both offices, or different people can serve, and more than one person can share each office. Not every ward requires the appointment of both a financial decision maker and a heath care advocate. Every Conservator, however, must be able to qualify for a bond, a form of insurance that provides security for the correct accounting for the ward’s assets by the Conservator.
How are Guardians and/or Conservators appointed?
Every petition for the appointment of either a Guardian or a Conservator requires a written statement from a physician, psychologist or other medical professional attesting to a specific diagnosis for the proposed ward with the conclusion that the condition deprives the ward of the ability to make decisions for himself or herself. Those whose appointment is proposed must appear in the Virginia court to be appointed, after notice of the petition to the ward and others who are interested in his or her welfare. The process may take as little as seven days from filing of the petition to a hearing and possible entry of the order of appointment.
How extensive is the Firm’s Fiduciary practice?
Dingman Labowitz serves those unable to act for themselves in critical decision making for health, housing, and finances. For some, age or accident has taken the ability to make decisions as to what medical care is needed or appropriate, whether independent living or a care facility is best, and how assets and income should be managed and accounted for.
As Guardian and/or Conservator appointed by courts in Northern Virginia, Dingman Labowitz has been the decision maker and financial manager for hundreds of individuals, with more than $25 million in assets presently under control for incapacitated individuals. We also assist families in the appointment of a Guardian and Conservator for parents as they age, or for a child whose needs transcend the fact that he or she is now legally an adult at age 18.
We are experienced across a broad range of family experiences:
- Selection of care managers to assist in home care
- Choice of care facilities
- Identification of assets, including bank and brokerage accounts, safety deposit boxes, and sources of income
- Gaining functional control of accounts and assets so that the funds can be used for the care and benefit of the ward
- Techniques for meeting the court-imposed accounting and reporting requirements
- The complex issues surrounding the ward’s residence and its contents
- The stresses on the family from the incapacity of one of its members
- End of life decisions
We serve as the decision maker for many wards, and we advise others who wish to serve in the capacity of guardian and conservator for a family member or a friend. We speak from the experience of facing complex issues and choices.
Dingman Labowitz also acts as the administrator of estates. Many of the same financial and emotional issues are involved in the decisions that must be made following the death of a family member, from choices of funeral arrangements to the disposition of personal belongings and homes. Frequently records are in disarray, and the same techniques used as conservators must be employed to identify and track down assets and accounts to be included in the estate.
Commercial Real Estate
- How does Dingman Labowitz approach a typical commerical real estate transaction?
- Will Dingman handle the closing?
- How should I take title to commerical real property?
- Do I need to get an environmental site assessment?
- What is a 1031 exchange?
How does Dingman Labowitz approach a typical commercial real estate transaction?
We start from the perspective that no transaction is 'typical.' Each deal deserves and receives individual treatment. While past experience is often a useful guide, we recognize that this type of transaction needs to be client driven, with documents and procedures tailored to client goals in the present matter. We can assist with most of the necessary tasks including:
- Drafting a Letter of Intent
- Negotiating and drafting a Purchase and Sale Agreement
- Securing title searches, surveys and appraisals
- Review of due diligence materials
- Limiting exposure for hazardous waste and environmental contamination
- Negotiation and review of loan documentation
- Effecting a clean, crisp closing
Will Dingman Labowitz handle the closing?
We will represent our client through the closing process. Best results are achieved, though, when an independent (not beholden to either buyer or seller) company serves as escrow/closing agent. That company will have duties to both sides as follows:
- Follow escrow instructions from each side and any lender
- Obtain and forward title reports
- Assure all requirements met to issue title insurance
- Satisfy lender requirements and collect all necessary funds
- Recording deeds and other instruments
- Disbursing funds
We will monitor and direct the activities of the escrow/closing agent to assure a smooth closing transaction.
How should I take title to commercial real property?
There are many issues that can arise with respect to how you take title to property, and especially so in a commercial context. Whether you take title as a business or an individual will dictate what liability you are exposed to and what tax obligations you will face. Peter Dingman regularly assists client in forming appropriate entities to hold and to operate commerical real estate.
Do I need to get an environmental site assessment?
Almost all lenders require an environmental site assessment. Even if there is no lender requirement, it is often wise to get one anyway. Obtaining a timely Phase I assessment can avoid buying into a problem and/or establish the critical baseline if future problems arise.
A 1031 exchange allows a seller to defer tax on a gain that would otherwise be realized on a sale of property if the proceeds from the sale were reinvested in like-kind property. It is very common for a 1031 exchange to be involved in some manner in a commercial real estate transaction.
