Wills, Trusts, Powers of Attorney, Advance Directives, Special Needs Planning, etc.
What Is Estate Planning?
At a minimum, a good estate plan will consist of several different legal documents including a Will, Power of Attorney, and Advance Directive, but may also include a Trust. Estate planning is the act of putting your wishes on paper in a manner that the law will recognize and uphold.
Estate planning should never be solely about where your belongings go when you die, but should also include what happens to you if you have a stroke, Alzheimer’s, Parkinson’s disease, or an accident and you lose your ability to make reasoned decisions.
We are all living longer lives, but with longevity comes the complications of aging. Older adults today are facing significant threats from strokes to dementia. These conditions and many others are leaving our seniors without their voice and the opportunity to choose how they wish to live. A thoughtful estate plan gives us the opportunity to tell others how we would like to be cared for in the event that we can no longer make our own decisions.
Medicaid Rules, Rumors, and Checklist
To qualify for Medicaid there are 3 main requirements:
1. Need assistance with activities of daily living (ADL)
2. Have no more than $2,382.00* a month in income
*updated May 2021
3. Have no more than $2,000.00 in assets
The rules tend to paint a bleak picture, but do not take these rules at face value. Each one of these rules must be qualified and applied to your specific situation. For example, a well spouse of a married couple may be able to keep up to $128,640.00. Also, you could have a combined income of more than $5,000.00 a month and still qualify. Again, applying the broader rules to your situation will paint a much different picture than the one we see just looking at the 3 rules.
If you or a loved one are considering long term care, give us a call. We will likely be able to help you understand whether Medicaid is an option for you within the first 10 minutes.
*The above is provided for information purposes only and should not be construed as legal advice.
Most people have heard the rumors about Medicaid. “You must be broke!” “You will lose your home!” “If you have given any property away in the last 5 years, you will not qualify.” While these rumors have their roots in the black and white rules, the reality is, the rules are vastly more colorful and these rumors are mere weeds choking out the truth. In other words, do not accept these rumors as fact.
If you have questions regarding Medicaid rules and whether you or your spouse will qualify, please give us a call so we can discuss your specific situation.
Probate & Trust Administration
Each day tens of thousands of Americans become legally incapacitated due to stroke, Alzheimers, Dementia, and accidents. Join Attorney Michael J. Rose as he discusses the documents you must have in place to protect yourself and your family if you lose capacity. He will also discuss how to avoid being the victim of elder abuse and fraud.
Many people will use a revocable living trust to avoid probate. A living trust is similar to a Will in that it tells everyone who you want to have your assets and who you want to administer the trust at your death (the successor trustee). However, a living trust can avoid probate because title to the property is held in the name of the trust, not an individual. Therefore, at the death of the decedent, the successor trustee takes over and can administer the trust in accordance with the trust provisions. The attorneys at Rose Elder Law, LLC are experienced with trust administration and can assist your trustee to administer the estate as quickly as possible.
Common Probate Terms
- Personal Representative (same as Executor) – The person appointed by the court to administer the estate.
- Small Estate Affidavit – An affidavit can be filed if the fair market value of the estate is
$275,000 or less. Of that amount, no more than $200,000 can be attributable to real property and no more than $75,000 can be attributable to personal property.
- Beneficiary – A person who inherits property from the decedent’s estate either by will or by statute.
- Testate – An estate is testate when someone dies having signed a Last Will and Testament.
- Intestate – An estate is intestate when someone dies without a Last Will and Testament.
Guardianships & Conservatorships
Often in estate planning, attorneys present the idea of guardianship and/or conservatorship as a bad thing – something to be avoided. In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become impaired or incapacitated, and we need trustworthy, responsible and financially astute family members who are willing and able to assist us. For some people, these “perfect world” conditions do exist. However, for many others, they do not.
Increasingly, attorneys run into the following situations:
- Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the necessary delegation documents in place to empower these helpers as their agents.
- Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.
- The people who the senior trusted and anticipated would be appropriate have become exploitive and abusive to them.
- Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services.
Elder abuse in its many forms – including fraud by unscrupulous “vendors,” financial exploitation, and physical or emotional abuse by “friends” and relatives – is a huge problem in the United States. The topic is being exposed in the 21st century much like child abuse and spousal abuse came into public view and began to receive legislative solutions during the late 20th century.
Rose Elder Law, LLC handles cases relative to the following:
- Crisis Situations
- Adult Protective Services
- Seeking Court Protection
- Compensation of Fiduciaries
- Imposing Minimum Restrictions
Although attorneys correctly advise clients to plan to avoid unnecessary guardianship and conservatorship, there are many situations where guardianship and/or conservatorship are appropriate and very beneficial. Court supervision in difficult cases can be beneficial to impose financial accountability and to bring about sound decisions for the care of a protected person. Examples are where the protected person is unwilling to comply with doctor’s orders or other considerations that are important for the safety of the protected person and others. Under modern guardianship and conservatorship theory, courts impose the minimum restrictions on protected persons that are needed to accomplish the personal safety and prudent financial management that are the goals of these court-supervised protective measures.