How Do I Find a Great Elder Law Attorney?

Zobuz’s recent article entitled “4 Tips for Hiring a Lawyer to Help with Medicaid Planning” says you may need to turn to an Elder Law attorney who can help you with Medicaid planning.

Here are some factors in choosing the best attorney:

Referrals and Recommendations. Look for an elder law attorney in the National Elder Law Foundation or the National Academy of Elder Law Attorneys database. You can also ask local agencies who work with seniors, such as the Alzheimer’s Association, AARP, as well as hospitals and nursing home social workers.

Experience. Elder law attorneys specialize in legal and financial issues that affect seniors. This includes areas such as estate planning and Medicaid planning. Look for an attorney who’s been successful in Medicaid planning and is board-certified in elder and special needs law.

Fees. Be sure that you understand how fees are structured. You should get a client engagement letter that outlines the services he or she will provide, as well as the fees they charge.

Customer Service. Dealing with Medicaid planning is a process that takes time. You need an attorney you can contact when you have questions.

A Few Other Thoughts…

Meet the elder law attorney in person for a consultation. This will help you to get a sense of his or her personality.

Look for a lawyer who will speak to you in a way you can understand and clarify points as needed.

Remember: if you don’t feel at ease with the attorney, look elsewhere.

When you select a qualified lawyer to help you with Medicaid planning and other medical insurance concerns, you will secure your future care.

Don’t risk your financial security or that of your family by waiting until it is too late.

Reference: Zobuz (April 22, 2022) “4 Tips for Hiring a Lawyer to Help with Medicaid Planning”

What Is Elder Law?

WAGM’s recent article entitled “A Closer Look at Elder Law“ takes a look at what goes into estate planning and elder law.

Wills and estate planning may not be the most exciting things to talk about. However, in this day and age, they can be one of the most vital tools to ensure your wishes are carried out after you’re gone.

People often don’t know what they should do, or what direction they should take.

The earlier you get going and consider your senior years, the better off you’re going to be. For many, it seems to be around 55 when it comes to starting to think about long term care issues.

However, you can start your homework long before that.

Elder law attorneys focus their practice on issues that concern older people. However, it’s not exclusively for older people, since these lawyers counsel other family members of the elderly about their concerns.

A big concern for many families is how do I get started and how much planning do I have to do ahead of time?

If you’re talking about an estate plan, what’s stored just in your head is usually enough preparation to get the ball rolling and speak with an experienced estate planning or elder law attorney.

They can create an estate plan that may consists of a basic will, a financial power of attorney, a medical power of attorney and a living will.

For long term care planning, people will frequently wait too long to start their preparations, and they’re faced with a crisis. That can entail finding care for a loved one immediately, either at home or in a facility, such as an assisted living home or nursing home. Waiting until a crisis also makes it harder to find specific information about financial holdings.

Some people also have concerns about the estate or death taxes with which their families may be saddled with after they pass away. For the most part, that’s not an issue because the federal estate tax only applies if your estate is worth more than $12.06 million in 2022. However, you should know that a number of states have their own estate tax. This includes Connecticut, Hawaii, Illinois, Maine, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont and Washington, plus Washington, D.C.

Iowa, Kentucky, Nebraska, New Jersey, and Pennsylvania have only an inheritance tax, which is a tax on what you receive as the beneficiary of an estate. Maryland has both.

Therefore, the first thing to do is to recognize that we have two stages. The first is where we may need care during life, and the second is to distribute our assets after death. Make certain that you have both in place.

Reference: WAGM (Dec. 8, 2021) “A Closer Look at Elder Law“

When Should I Consult with an Elder Law Attorney?

Elder law attorneys assist seniors or their family caregivers with legal issues and planning that related to the aging process. These attorneys frequently help with tax planning, disability planning, probate and administration of an estate, nursing home placement and many other legal issues.

Forbes’ recent article entitled “Hiring an Elder Law Attorney,” explains that elder law attorneys are specialists who work with seniors or caregivers of aging family members on legal matters that older adults face as they age. Many specialize in Medicaid planning to help protect a person’s financial assets, when they have Alzheimer’s disease or another debilitating illness that may require long-term care. They can also usually draft estate documents, including a durable power of attorney for health and medical needs, and even a trust for an adult child with special needs.

As you get older, there are legal issues you, your spouse or your family caregivers face. These issues can also change. For instance, you should have powers of attorney for financial and health needs, in case you or your spouse become incapacitated. You might also need an elder law attorney to help transfer assets, if you or your spouse move into a nursing home to avoid spending your life savings on long-term care.

Elder law attorneys can help with a long list of legal matters seniors frequently face, including the following:

  • Preservation and transfer of assets
  • Accessing health care in a nursing home or other managed care environment and long-term care placements
  • Estate and disability planning
  • Medicare, Social Security and disability claims and appeals
  • Supplemental insurance and long-term health insurance claims and appeals
  • Elder abuse and fraud recovery
  • Conservatorships and guardianships
  • Housing discrimination and home equity conversions
  • Health and mental health law.

Reference: Forbes (Oct. 4, 2021) “Hiring an Elder Law Attorney”

What If Account has No Named Beneficiary?

It’s not uncommon for a person to have a banking, retirement, or other investment account with no designated beneficiary when they pass away.

Beneficiaries can include spouses, children, other family members, friends and charities. Beneficiary designations can generally be added to assets, such as bank accounts, securities accounts, retirement accounts, life insurance policies, savings bonds and a number of other assets. Designating a beneficiary will determine how an asset is distributed at the owner’s death– regardless of the provisions of the person’s will or trust.

The first step is to probate the will of a deceased, assuming she had one, says nj.com’s recent article entitled “My wife died and her account has no beneficiary. What’s next?”

When a person dies without a surviving beneficiary named for an account, the assets go to that person’s estate.

So, if a person left a will, the assets in the banking account would pass to the beneficiaries under that will.

If the decedent had no will, the beneficiaries would be dictated by the laws of the state in which the decedent resided. These are known as intestacy laws, and they describe who inherits if there’s no will.

An estate may have to go through the probate process before the decedent’s assets can be transferred to the will’s beneficiaries. It depends on the size of the decedent’s estate, and where he or she lived and died. States have what’s called a small estate limit: if an estate falls below that limit, no probate is required.

If you don’t need to go through probate, there’s a way for a beneficiary to request that a banking account be transferred without a court order. If an estate must go through probate, you’ll need a court order (which is how probate ends) to have the assets transferred to your name.

Reference: nj.com (Oct. 22, 2021) “My wife died and her account has no beneficiary. What’s next?”

What Is a Guardianship?

The guardianship process is started by a petition being filed with the court. For a person to be deemed incapacitated by the court, the petitioner must provide medical evidence of the individual’s incapacity.

The Phoenix Reporter’s recent article entitled “What is a guardianship?” explains that to be found incapacitated, the court must determine that the individual’s ability to receive and evaluate information effectively, and to communicate decisions, is impaired to such a level that he or she is partially or totally unable to manage his financial resources or to meet the essential requirements for his physical health and safety.

After the petition is filed, the individual alleged to be incapacitated must be given written notice of the action and told of their right to counsel. A formal hearing is held, and the alleged incapacitated person has a right to be at the hearing and is typically required to be at the hearing (unless a physician excuses him or her because their welfare could be harmed by attending). During the hearing, evidence is presented to demonstrate that the person is incapacitated, that the guardianship is necessary and that there’s not a less restrictive alternative. The court will render a decision on whether the appointment of the guardian is necessary and, if appropriate, will adjudicate the individual an incapacitated person. The guardian is then empowered to make decisions regarding the incapacitated person’s care and financial management.

The court can decide to appoint a guardian of the person and/or a guardian of the estate. The guardian of the person makes decisions on where the individual will live, his or her safety and physical wellbeing, along with his or her daily health care. In contrast, the guardian of the estate manages the finances and property of the person.

Any qualified individual, corporate fiduciary, non-profit corporation, or county agency may serve as guardian. The guardian has ongoing oversight by the court and must file annual reports. However, when first appointed as the guardian of the estate, he or she must file an inventory of the incapacitated person’s assets.

A guardianship should be a last resort and only used where necessary and where there are no less restrictive alternatives. Most guardianships can be avoided with proper estate planning.

A guardianship is a more restrictive tool in dealing with incapacity than a power of attorney. A power of attorney gives you more flexibility, and there’s usually no involvement by the court. A durable power of attorney is one of the most important estate planning documents you can have and can prevent the need for a guardianship in the event of incapacity. Ask an experienced estate planning attorney or elder law attorney for assistance.

Reference: The Phoenix Reporter (Sep. 1, 2021) “What is a guardianship?”

I’ve Been Appointed My Aging Parents’ Power of Attorney but What Now?

A durable power of attorney is frequently signed by aging parents. However, sometimes the elderly can misunderstand exactly what that entails, especially when it comes to the authority of the person given decision-making powers.

The person appointed (called the agent or attorney-in-fact) is also typically an adult child. Nevertheless, he or she may be unaware of the appointment or does not grasp what is permitted and when it is permitted. It can be very confusing.

Forbes’s recent article entitled “Let’s Get Clear: What Does It Mean To Be Appointed Aging Parents’ Power Of Attorney?” provides the answers to three frequently asked questions of many heard from families.

Question: Can my father, who’s in charge of our family finances but now has dementia, revoke his DPOA that he signed years ago and name a child to take over managing his money when he needs help?

Answer: Perhaps. If Dad has dementia, he needs to be evaluated by a doctor to see if he still has the capacity to make financial decisions. This is a legal determination with help from doctors and particularly psychologists, who can perform the evaluation and give standardized test results. If the parent is found to have financial capacity, he is permitted to revoke the durable power of attorney at any time. However, if he doesn’t have mental capacity, he’s no longer legally capable of revoking the document.

Question: What if my mother is found to be incapacitated for financial decisions? If I’m the appointed agent on the DPOA, when can I use this authority?

Answer: Provided you’ve met any requirements detailed in the DPOA document itself, you can immediately take over financial authority. Some durable power of attorney documents require that a doctor or even two doctors must say the parent no longer has capacity before you can act. Some durable powers of attorney say the document is effective immediately. The agent’s authority is contained in the document.

Question: Am I allowed to keep my father from recklessly giving away money or making imprudent decisions with his wealth, if I’m the appointed agent on his DPOA?

Answer: Yes. Usually, the durable power of attorney gives the agent full authority over all financial matters.

Reference: Forbes (June 22, 2021) “Let’s Get Clear: What Does It Mean To Be Appointed Aging Parents’ Power Of Attorney?”

How can I Revoke an Irrevocable Trust?

Is there a way to get a house deed out of the trust?

Nj.com’s recent article entitled “Can I dissolve an irrevocable trust to get my house out?” says that prior to finalizing legal documents, it is important to know the purpose and consequences of the plan.

An experienced estate planning attorney will tell you there are a variety of trust types that are used to achieve different objectives.

There are revocable trusts that can be created to avoid probate, and others trusts placed in a will to provide for minor children or loved ones with special needs.

Irrevocable trusts are often created to shield assets, including the home, in the event long-term nursing care is required.

Conveying assets to an irrevocable trust typically starts the five-year “look back” period for Medicaid purposes, if the trust is restricted from using the assets for, or returning assets to, the individual who created the trust (known as the “grantor”).

When you transfer assets to a trust, control of the assets is given to another person (the ‘trustee”).

This arrangement may protect assets in the event long-term care is required. However it comes with the risk that the trustee may not always act how the grantor intended.

For instance, the grantor can’t independently sell the house owned by the trust or compel the trustee to purchase a replacement residence, which may cause a conflict between the grantor and trustee. Because the trust is irrevocable, it could be difficult and expensive to unwind.

In light of this, it’s important to designate a trustee who will work with and honor the wishes of the grantor.

An experienced estate planning attorney retained for estate and asset planning should provide clear, understandable and thoughtful advice, so the client has the information needed to make an informed decision how to proceed.

Reference: nj.com (April 6, 2021) “Can I dissolve an irrevocable trust to get my house out?”

Should I Create a Trust?

Most people know that a will instructs your executor regarding where to transfer your assets when you die. You may also want to consider a trust.

Nbcnew25.com’s recent article entitled “Elder law and estate planning: What you need to know” explains that a trust can give you peace of mind that your wishes will be carried out when you pass away. Your property won’t need to go through the probate process, if it’s in a trust. Your family can focus on the grieving process without having any problems with wrapping up your estate.

In addition, financial and health care powers of attorney should also be part of your estate plan. Ask an experienced estate planning or elder law attorney to help you draft these documents to save your loved ones the worry, if you must be moved into a nursing home and are unable to make decisions for yourself.

Having the correct documents in place before you or a loved one goes into a nursing home is extremely important. With a financial power of attorney, an elder law attorney could design a Medicaid plan for someone entering a nursing home to help protect their assets.

If the correct documents aren’t in place when a loved one enters a nursing home, it could create issues—one of which is the inability to protect their assets. In that case, you may also be required to appear in front of a judge to get permission for an elder law attorney to assist in protecting assets. That request could even be denied by the judge.

For a married couple, 100% of cash assets, plus the home, can be protected, and Medicaid would cover most of the nursing home cost. This is big because the cost of nursing homes can exceed be tens of thousands of dollars every month.

For married couples, in many instances, the income of the spouse who is entering the nursing home may be able to be transferred to the spouse who still lives at home. That’s important because the spouse at home may depend on the other spouse’s income to help make ends meet.

For singles, at least 60% to 70% of cash assets, plus the home, can be protected, so that Medicaid would cover most of the nursing home cost.

Moving a loved one into a nursing home can be stressful enough, without having to worry about the cost. Help yourself and your family, by preparing the proper documents ahead of time to eliminate some of the stress.

Working with an elder law attorney who specializes in Medicaid planning is a wise move. Don’t wait until it is too late.

Have things in order, so you or a loved one can avoid any unnecessary stress and keep the assets that you’ve acquired during your lifetime.

Reference: nbcnew25.com (April 30, 2021) “Elder law and estate planning: What you need to know”

How Do Special Needs Trusts Work?

A trust of any kind is a document that expresses your wishes while you are alive and after you have passed. The need for a dedicated trust for loved ones differs with the situations or issues of the family. Getting this wrong can lead to financial devastation, explains the article “Take special care with Special Needs trusts” from the Herald Bulletin.

A Special Needs Trust or supplemental trust provides protection and management for assets for specific beneficiaries. The trustee is in charge of the assets in the trust during the grantor’s life or at his death and distributes to the beneficiary as directed by the trust.

The purpose of a Special Needs or supplemental trust is to help people who receive government benefits because they are physically or mentally challenged or are chronically ill. Most of these benefits are means-tested. The rules about outside income are very strict. An inheritance would disqualify a Special Needs person from receiving these benefits, possibly putting them in dire circumstances.

The value of assets placed in a Special Needs trust does not count against the benefits. However, this area of the law is complex, and requires the help of an experienced elder law estate planning attorney. Mistakes could have lifelong consequences.

The trustee manages assets and disperses funds when needed, or at the direction of the trust. Selecting a trustee is extremely important, since the duties of a Special Needs trust could span decades. The person in charge must be familiar with the government programs and benefits and stay up to date with any changes that might impact the decisions of when to release funds.

These are just a few of the considerations for a trustee:

  • How should disbursements be made, balancing current needs and future longevity?
  • Does the request align with the rules of the trust and the assistance program requirements?
  • Will anyone else benefit from the expenditure, family members or the trustee? The trustee has a fiduciary responsibility to protect the beneficiary, first and foremost.

Parents who leave life insurance, stocks, bonds, or cash to all children equally may be putting their Special Needs child in jeopardy. Well-meaning family members who wish to take care of their relative must be made aware of the risk of leaving assets to a Special Needs individual. These conversations should take place, no matter how awkward.

An experienced elder law estate planning attorney will be able to create a Special Needs trust that will work for the individual and for the family.

Reference: Herald Bulletin (March 13, 2021) “Take special care with Special Needs trusts”