Estate planning means preparing for the inevitabilities of life. People get sick or hurt, and you need a plan in place to determine what kind of medical care you’ll receive if this happens to you. People become incapacitated, unable to make important decisions on their own, or unable to live independently. And of course, people die. Estate planning helps to protect your family and your assets in any of these unfortunate situations. Unfortunately, far too many people don’t know what a complete estate plan includes or how to go about creating one. Making an estate plan involves way more than writing up a will, and you should ideally get legal help with it so you can use the right estate planning tools in the right way. If you’re unsure where to get started, or if you want to learn more about the most important aspects of estate planning, this guide will help.
Elder law is a specialized area of legal practice, covering estate planning, wills, trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other involving older people. As the population’s longevity moves upward, it has become an increasingly popular field. Elder law issues can be complex. One wrong word or move can mean the difference between a good result and terrible one State law are very specific about what can and cannot be included in a will, trust, advance medical directive, or financial power of attorney. They control who can and cannot serve as a personal representative, trustee, health care surrogate, or attorney in fact. They dictate who can and cannot be a witness to a will, trust, or medical or financial power of attorney. These laws also determine what formalities must be followed when you’re signing a will, trust, or medical or financial power of attorney. And even though Medicaid is a federally authorized program, states are tasked with administering Medicaid at their local levels. The laws and rules governing Medicaid can vary greatly from state to state.
That Old Latin saying, Caveat Emptor or buyer beware certainly applies to elder law matters if you’re thinking of handling things yourself with a little store-bought assistance. You might think that you’ll save a few dollars by filling out that Medicaid application yourself or using forms found on the internet, but your family could be in for a rude awakening when they learn that you won’t qualify. The same holds true for estate planning documents. If you attempt to create them yourself or with the help of some generic, one-size-fits-all software, part or all of your will, trust, or medical or financial power of attorney might not be legally valid or won’t work as anticipated. Elder law isn’t necessarily the same thing as estate law. Your estate is what you leave to your loved ones when you die. But what if you should become mentally or physically incapable of taking care of yourself and your own personal business before then? Numerous options are available to adjust to these circumstances as economically and efficiently as possible from powers of attorney to living trusts. A revocable living trust can be set up for someone else to take over management of your assets if a point in time comes when you can no longer do so yourself.
Take a look at your life and your assets to see if you fit into one or more of the following categories. Check off as many as apply.
• You’re in a second (or later) marriage
• You own one or more businesses
• You own real estate in more than one state
• You have a disabled family member
• You have minor children
• You have problem children
• You don’t have any children
• You want to leave some or all of your estate to charity
• You have substantial assets in 401(k)s and/or IRAs
• You were recently divorced
• You’ve recently lost a spouse or other family member
• You have an incapacitated spouse in need of long-term care
• You have a taxable estate for federal and/or state estate tax purposes
If one or more of these situations apply to you, you’ll need the counseling and advice of an experienced elder law attorney to assist you with your elder law needs. Otherwise, your state or the Internal Revenue Service might receive the largest chunk of your assets.
In its broadest sense, elder law is the specialized field of law that addresses the diverse legal needs of aging baby boomers and their elderly parents. This includes the following legal areas:
• Disability planning, including special needs planning
• Long-term care planning, including Medicaid planning and veterans benefits
• Estate planning
• Guardianship and conservatorship
• Estate settlement, including probate and trust administration
• Elder abuse, both personal and financial
Making a plan for the possibility of becoming mentally incapacitated is a must, especially for baby boomers and their elderly parents. Without a disability plan, you and your assets will end up in a court-supervised guardianship, also called conservatorship in some states, which is discussed in more detail below. There are several legal documents that you need to have in place to protect you and your property from guardianship or conservatorship, including a Power of Attorney, an Advance Medical Directive, and a Living Will. In addition, a Revocable Living Trust can be part of a comprehensive disability plan.
Special needs planning encompass the legal needs of disabled individuals, including both children and adults. In many cases, these individuals will be eligible to receive government benefits due to a physical disability and/or mental disability. If these individuals are gifted assets or inherit assets, then they may no longer qualify for any government assistance, so it is important to understand that if you want a special need individual to receive part of your estate, then you will need to do specific planning to ensure that the individual will continue to receive government assistance. Many people don’t think about planning for their long-term health care needs until a crisis hits. Proactive long-term care planning is the only way to ensure that your health care needs will be met without having to spend all of your assets on your care. Medicaid planning is a subcategory of long-term care planning and involves re-positioning and/or transferring assets in order to qualify for Medicaid nursing home benefits.
Veterans’ benefits in relation to elder law encompass providing for the long-term health care needs of veterans of the U.S. armed forces. Estate planning is the systematic approach to deciding who will receive your property after you die and who will be in charge of making sure your final wishes are carried out. Estate planning will include disability planning as discussed above as well as planning to avoid probate and minimize estate taxes and ensuring that your beneficiaries are protected from bad decisions, bad marriages, and outside influences. When a person becomes mentally incapacitated, who will be able to make the incapacitated person’s personal and financial decisions? If the person took the time to make a disability plan, then he or she will have the right legal documents in place and will be able to dictate who will make these decisions. If the person does not have a disability plan, then a family member, friend, or, in some cases, a complete stranger, will have to go to court and request that a guardian or conservator be appointed on behalf of the incapacitated person.
Guardianship also referred to as conservatorship in some states, is sometimes to refer to as “living probate” since it is the court-supervised process of administering an incapacitated person’s estate. Probate is the court-supervised process for settling a deceased person’s estate. Probate may or may not be necessary depending on how the deceased person’s assets were titled at the time of death. If the deceased person had a Revocable Living Trust, then the trust will need to be settled in a manner similar to probate but without the supervision of a probate court. As people age, they, unfortunately, become prone to personal and/or financial abuse. This can range from “granny kidnapping” to outright theft of personal belongings and financial assets. Financial elder abuse can occur through the use of a Durable Power of Attorney or by undue influence, such as wrongfully coercing an elderly person to give away their assets or change their Last Will and Testament or Revocable Living Trust. This has led to a specialized area of litigation aimed at recovering the elderly person’s assets.
Elder Law Attorney Duties
Elder law attorneys are advocates for the elderly and their loved ones. Most elder law attorneys handle a wide range of legal matters affecting an older or disabled person, including issues related to health care, long term care planning, guardianship, retirement, Social Security, Medicare/Medicaid, and other important matters. In many ways, elder law attorneys are “specialists” because of their focus on the needs of older adults, which are often different and more specialized than the needs of younger adults. Not only can they handle important financial and estate planning matters, but they also take care of day-to-day issues affecting the actual care of seniors, such as assisted living and life planning. In addition, elder law attorneys are often more equipped to handle the sensitive emotional and physical needs of older or disabled adults and are therefore able to handle a variety of challenging situations.
Elder Law—Legal Issues Affecting Senior Citizens
The field of elder law focuses on the needs of older people and the issues they encounter. Elder law generally addresses three general concerns:
• Long-term care issues, including planning for the payment of the costs of assisted living or nursing home care
• The effect of health issues on the management of personal affairs
• Estate planning and administration
Attorneys who specialize in elder law typically address a wide range of legal issues, including:
• health care and long-term care planning
• government benefits (including Medicaid, Medicare and Social Security)
• decision-making by others on the senior’s behalf (including powers of attorney, conservatorship and guardianship)
• the ability to understand and make legal decisions by the senior
• management, inheritance and administration of a deceased’s estate (including trusts, wills and probate)
• taxes (including real estate, gift and estate taxes)
• retirement benefits (including Social Security, disability and veterans’ benefits)
• litigation of will contests and probate challenges
As our population ages, and as medicine allows us to live longer, more and more people need end-of-life medical and living assistance. The costs of assisted living or nursing home care can be substantial, and without proper planning, the estate you worked to build may go to the long term care facility, instead of your loved ones. There are ways that you can protect your assets, and there are alternative methods for paying for the costs of care. An elder law attorney will help you determine the extent to which government programs such as Medicare, Medicaid and Social Security can help defray the costs of care. An elder law attorney can also help you put assets where they cannot be seized by nursing home operators, and help you set up other plans to pay for potential care, including private insurance. If your health deteriorates to the point where you cannot manage your own financial, legal or business affairs, you want a plan in place to allocate that responsibility to someone you trust. An elder law attorney can help you put measures in place that address these concerns.
You can set up a guardianship or conservatorship that automatically goes into effect when certain conditions are met for example, if a doctor declares you incapable of managing your own affairs. An elder law attorney can also ensure that proper procedures are in place to establish when you may be subject to civil commitment, for your own good and the good of your family. Most elder law attorneys also provide services. The goal of the estate planning process is to put measures in place to ensure the orderly distribution of your estate in the event of your death. Your attorney will gather as much information as possible about your financial situation, as well as your goals. Your attorney may suggest one or more of a number of estate planning tools to meet your objectives, including wills, trusts, powers of attorney and healthcare directives. In formulating your estate plan, your attorney will consider a number of issues, including potential tax consequences, as well as ease of transfer of assets.
The Older Americans Act, enacted in 1965, created the Administration on Aging, the federal agency advocating for the elderly. The Act provides funds for services and programs benefiting senior citizens and their families, as well as measures to help seniors avoid institutional care, improve nutrition and health services and coordinate governmental programs for elders. These programs include home-delivered meals and nutrition services, transportation, adult day care, legal assistance, nursing home supervision and health care promotion.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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84088 United States
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