What age should I be to see an elder law attorney?
There is no minimum age to seek the advice of an elder law attorney. Elder law attorneys often address issues concerning medical conditions, disability, capacity and medical expenses, as well as traditional estate planning. These issues concern clients of all ages.
What is Estate Planning?
Estate planning is the process of anticipating and arranging, during a person’s life, for the management and disposal of that person’s estate during the person’s life and at and after death, while minimizing gift, estate, generation skipping transfer, and income tax. Estate planning includes planning for incapacity as well as a process of reducing or eliminating uncertainties over the administration of a probate and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can be determined by the specific goals of the client, and may be as simple or complex as the client’s needs dictate. Guardians are often designated for minor children and beneficiaries in incapacity.
The law of estate planning overlaps to some degree with elder law, which additionally includes other provisions such as long-term care.
Do I really need any planning documents?
Everyone should have a valid, comprehensively written durable power of attorney and health care proxy. Most people also need a Last Will & Testament.
When do I need a Will?
Not everyone does need a Will, but a consultation with a qualified attorney is warranted to confirm whether or not that is the case. If you have young children, a Will is necessary to nominate the proposed guardians of your children. A Will is necessary if, for example, your children are minors or perhaps lack capacity or judgment. The Will could establish a trust for the benefit of that child.
What is a Living Will?
A Living Will is a written statement that expresses your desires with regard to health care treatment if you become mentally incapable and/or physically incapable of expressing those desires. It can include, but need not be limited to, instructions concerning the termination of life support.
What is a Health Care Proxy?
A Health Care Proxy is a document which allows you to designate a person to make health care decisions for you if you cannot make them for yourself. These decisions can involve the management of your health care in order to keep you healthy. These decisions can also involve the termination of life support.
Since my family knows my wishes about artificial life support, do I need anything else?
Decisions about refusing and/or discontinuing artificial life support can be made for another person, including a spouse, only if that person has a Health Care Proxy and obtains an Order from the Court.
My child is disabled. Do Elder Law attorneys help plan for disabled children?
A large part of an Elder Law attorney’s practice consists of planning for disabled children…establishing Trusts for them, protecting and/or obtaining government benefits for them and/or seeking a Court Order appointing a Guardian for them.
I have a disabled child, should I leave him out of my Will?
A parent can provide for a disabled child without disinheriting him/her by establishing a Special Needs Trust for that child. Such a Trust provides for the child while still protecting his/her government benefits.
My accountant said I should have a Living Trust. Should I?
That depends. Everyone’s situation is different and, although I have a preference for Trusts and feel they offer many benefits, they are not for everyone.
Mom and dad have done no planning and both have Alzheimer’s Disease, how do I pay their bills?
Mom and Dad are still presumed to be competent even with a diagnosis of Alzheimer’s disease. As such, they should meet with an elder law attorney who will make a determination as to their mental capacity. If the attorney feels that they have sufficient capacity to sign a legal document, a Power of Attorney should be prepared and signed immediately. If the attorney finds them to lack capacity, the recourse would be to petition the Court to appoint a Guardian who can act on their behalves.
If I have money and I give it away and then go on Medicaid, am I defrauding the government?
You are not defrauding the government as long as all assets and transactions are fully and accurately disclosed with the Medicaid application. Gifting is permitted in certain circumstances. This is something that should be reviewed by a qualified elder law attorney.
If I die without a Will, will the state get everything?
If someone dies without a Will, they have died intestate. The laws of intestacy determine who inherits from the decedent. For example, if someone dies with a spouse and children, the estate is distributed fifty percent (50%) to the surviving spouse and fifty percent (50%) to the children.