Who is an Elder Lawyer?

As with any area of the law, Elder Law can be just as difficult for someone to fully wrap their minds around, even if they have a vague idea or preliminary understanding of what area a specific lawyer may specialize in. So, who is an elder lawyer? An elder lawyer is someone who has dedicated his or her professional life to helping older adults and their families through the trials and tribulations that can crop up as a person gets older.

Specifically, an elder law attorney can help in a number of areas and with numerous issues, including the following:

  • Guardianship, Proxies, Power of Attorney (both Financial and Clinical)
  • Healthcare Surrogates and Proxies
  • Planning for things like Long-term Care, enrollment in Medicare and other programs, Medicaid applications, and Miller trusts (also called Qualified Income Trusts)
  • Durable Power of Attorney and other such legal matters
  • Healthcare Surrogates and Decision Makers
  • Special accounts and trusts for people with disabilities
  • Revocable and Irrevocable trusts
  • Issues stemming from elderly abuse, neglect and exploitation

For a full list of issues we cover and services we provide, you can check out the Scott Counsel homepage.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Irrevocable Trusts

When planning to care for an elderly loved one, there are a lot of terms that get thrown around, and many that you may be unfamiliar with. One such term is “irrevocable trust.” Chances are that you at least have a basic of idea of what a trust in general is—something you set up in order to provide for those you love when you no longer are able to, or to keep your assets safe, right? An irrevocable trust is just as easy to understand.

An irrevocable trust is simply a trust that can’t be either changed or terminated without consent from the beneficiary. This is because when the person who grants the trust (the one who created it) moves assets into the trust, his or her rights of ownership to any assets in the trust and to the trust itself are then transferred to the beneficiary. Also, once an asset is placed in the trust, it is considered a gift to the trust and the grantor cannot get it back. They are, however, able to lay out the terms, rules and the uses of the assets in the trust, but only as long as they obtain the consent of both the trustee and beneficiary.

There are many different kinds of uses for an irrevocable trust when it comes to planning to preserve and distribute a person’s estate, and some of them include:

  • Taking advantage of an estate tax exemption, as well as getting rid of any taxable assets the estate might have.
  • Preventing the beneficiaries from misusing any assets placed in the trust, since the grantor is able to set conditions for the distribution of those assets.
  • To gift the assets in the trust to the estate while also keeping any income from the assets.
  • To get rid of any appreciable assets the estate may have while also allowing beneficiaries a way to value the assets for taxes.
  • To give children the principal residence under tax rules that allow for more favorable conditions.
  • To keep a life insurance policy that would get rid of any death proceeds from the estate.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Avoiding Probate: A How-To Guide

We talk about probate a lot, and just like everything else, it can be a little too much to deal with. So, what if you don’t want to deal with any of that? Is there a way for you to avoid it altogether?

In fact, there is!

Let’s start with Revocable Living Trusts:

  • Revocable Living Trust

Living trusts were created to give people a way around the probate process. One particular advantage to having any valuable property in a trust is the fact that it is not considered to be part of the probate estate. Keep in mind, though, that this is counted as part of the estate for federal tax purposes.) This is because someone called the trustee, and not you as an individual, owns any property left in the trust. After you pass away, the trustee can both easily and quickly pass the property in the trust to whomever you left it to—and avoid the probate process. You can also specify in the trust document who you want to inherit the property, like family or friends (just as you can in a will).

  • Pay-On-Death Accounts and Registrations

One interesting thing you are able to do with any bank accounts or retirement accounts you have is that you can convert them into Pay-On-Death accounts. All you need to do is fill out an easy form and then list somebody to be the beneficiary. At the time of death, any money in these accounts will go directly to the listed beneficiary (and avoid the probate process). You can also do the same thing with security registrations, and even vehicle registrations (though only in some states). Some states also allow for P.O.D. real estate deeds that use a deed that doesn’t come into effect until your death.

So, here are just a couple of ways to avoid the probate process, but let’s look at a few more:

You can avoid probate simply by jointly owning property or by giving gifts. Let’s go into a bit more detail on each of those things below.

  • Joint Ownership of Property

This method gives you a quick and easy way to completely bypass the entire probate process whenever the first owner passes away. There are, in fact, several ways that this can be accomplished. To take title along with someone else and avoid probate, all you have to do is state on the ownership papers (like a real estate deed, for instance), how you want to hold the title. Normally, no other documents are needed, and when one of the owners passes away, the property then transfers over to the joint owner, without ever having to worry about probate. Let’s see some other ways to avoid probate below:

  1. Joint tenancy with the right of survivorship

Any property owned in joint tenancy will pass automatically to the surviving owner when one of them dies.

  1. Tenancy by the entirety

In some states, married couples may often take a title not in joint tenancy, but in what is known as “tenancy by the entirety.” It is similar to joint tenancy, but only married couples may use it. Even same-sex partners may do it in some states, so long as they have registered with the state. Both ways avoid probate in exactly the same way.

  1. Community Property with right of survivorship

People in the following states: Alaska, Arizona, California, Idaho, Nevada, Texas or Wisconsin may be able to claim community property with right of survivorship if they are married and co-own property with their spouse. In this way, if one spouses passes, the other automatically owns any assets upon death. In California, those with a same-sex partner may also doo this as long as a domestic partnership has been registered with the state.

To finish our simple guide on how to avoid probate, let’s check out a couple of different ways to avoid probate if you have a small estate.

The truth of the matter is that if your estate is small enough, you may not even have to worry about probate at all. Almost every state now offers something in the way of shortcuts, or even ways around probate altogether in some cases, for small estates. Although, be aware that each state defines that term differently, so check out the rules and regulations for your state.

Two basic shortcuts for small estates are:

  • Claiming Property with Affidavits

If the total amount of value for everything is below a certain number, anyone who gets your personal property (that is, anything except for real estate) could potentially skip probate altogether. The exact amount can and does vary from state to state, though, and it can vary by quite a good amount.

If an estate qualifies, any inheritor may draw up a short document that states he or she is entitled by will or state law to a certain item of property. This document (the affidavit) is signed under oath. Then, whenever the institution or person holding the property (such as a bank where the deceased had an account) gets the required documents (the affidavit and a signed copy of the death certificate), it can then give out any monies or other property.

  • Simplified Court Procedures

These are defined according to individual state laws and are a quicker, easier version of the probate process. Probate Court will still be involved, but it has much less control over settling an estate. In many states, these processes are even simple enough to handle without needing a lawyer. Because of this, they often save a lot of money and time.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Looking For Hazards Within the Home

If an elderly person you love lives by him or herself, it is incredibly important to make sure the home is as safe as possible for them. Let’s look at some ways that you can help ensure their safety in their home right now:

General Home Safety

  • Consider making use of a medical alert or buddy system.
  • Keep a fire extinguisher and smoke detector on every floor in the home.
  • Never smoke when alone or in bed.
  • Always get up slowly after lying down or sitting. Take time to find your balance at first.
  • Wear well-fitting, low-heeled shoes.
  • Make use of a correctly measured walking aid.
  • Get rid of any and all scatter rugs or, at the very least, tack them down to prevent falls.
  • Get rid of any electrical or telephone cords from any high-traffic areas.
  • Do not use wax on floors to keep from slipping and/or falling.
  • Wipe up any spills ASAP.
  • Avoid standing on either ladders or chairs.
  • Have proper and sturdy rails installed, both inside and outside the house, or purchase a stairlift, if needed.
  • Use non-glare 100-watt or greater incandescent bulbs only (or the fluorescent equivalent).
  • Make sure any and all staircases have good lighting, with switches at both the top and bottom.
  • Ensure that staircase steps have non-slip surfaces.

Bathroom Safety

  • Keep a light on in the bathroom at night.
  • Use any recommended bath aides, and make sure they’re installed securely on bath or shower stall walls and on the sides of the toilet too.
  • Make the tub skid-proof, and make sure the bath mat also has a non-slip bottom.
  • Turn the water heater to 120 degrees Fahrenheit or lower to prevent scalding.
  • Clearly mark both hot and cold faucets.
  • Use door locks that can be operated from both sides.
  • Bathe only when help is available to you, if possible.

Kitchen Safety

  • Keep floors clean and free of clutter.
  • See that any and all work areas are well-illuminated.
  • Mark both “on” and “off” positions for appliances clearly and brightly.
  • Store sharp knives in a rack.
  • Use a kettle with an automatic shut-off.
  • Store heavier objects at waist level
  • Store any hazardous items away from food.
  • Avoid wearing any long or loose-fitting clothing when cooking at the stove.
  • See that food is rotated regularly and check expiration dates.

Drug Safety

  • Review all medications frequently with your doctor or pharmacist and whenever you take any new medications.
  • Make sure all medication is clearly labeled.
  • Read medicine labels in good light to make sure you have the right medication and always take the right dosage.
  • Get rid of any old or used medicines.
  • Never borrow any prescription drugs from others.
  • Check with your doctor or pharmacist before mixing drugs and alcohol.
  • Have any medications dispensed in bubble wrap or convenient dispenser.
  • Finally, check with your doctor or pharmacist before mixing any non-prescription drugs with prescription drugs.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Winding Up Legal Affairs After Death

Dying is a part of life that can be tough on everyone involved—both individually and as a family unit. And while that might seem like the toughest part of losing a loved one, sometimes what comes after can be just as tiring and overwhelming, if not more so. So, if it’s up to you to take care of your loved one’s affairs, the tips in this article are for you. Let’s get started.

While you may be thinking you should get started right away, the first thing you need to know is that it doesn’t have to start the second the person passes away. Losing someone you were close to is an incredibly painful time, and it’s important to take that time to grieve when you need to. Though, you should also make it a point to see a trusts and estates attorney no more than a month following death. In a best-case scenario, this person will also be the same one who created the will and set up an irrevocable living trust.

When the process does get rolling, you’re going to want to get a copy of the decedent’s estate plan documents—like the will and trust (if there is one).  Many times, the attorney will have a copy or will have one in a safety deposit box. Next, make sure to make that appointment with the trusts and estates attorney in the same state where the deceased lived. Things like the will and any other estate plan documents will have been made according to that state’s particular laws, and you’ll need an attorney licensed in that state to help you get through the process.

The next step is to pay the attorney from the estate of the deceased. Many trusts and estates attorneys will charge by the hour for this work, and anywhere in the range of $200 to $500 an hour is normal for you to expect. If the estate has to pass through probate, many states will give the attorney payment on a sliding scale based on any assets in the estate, and only then, by obtaining court approval.

In your first meeting with the lawyer, he or she will explain to you what’s expected of you if you are the trustee of the trust or executor of the estate. The first thing you’ll likely do is obtain copies of the death certificate and a statement of any assets and liabilities. This will include a listing of all bank accounts, assets, life insurance policies, annuities, and investments, and any outstanding debts. You’ll also want to start receiving monthly statements on any accounts, so you can estimate their value on the day of death.

If the person happened to forget to put an asset in the trust, the attorney could potentially have to go to court to have it put in. If there are any assets for heirs, it’s simple. However, if the estate plan calls for sub-trusts (to hold for future generations or control distribution to beneficiaries), then they’ll need to be drafted and funded, which means a change of titles on assets. These trusts will then need to be given and invested appropriately by you, since you are the trustee.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

 

When to Take a Break from Caregiving

Caring for another person can be one of the most rewarding experiences we can have, and while we certainly can enjoy and take pride in the work that we do, it is so important that we don’t get burned out in the process. After all, if we are rundown or sick ourselves, we can’t provide the best care possible to those who may be counting on us.

If you find yourself feeling, rundown, anxious, tired, stressed, or burnt out, be sure to enlist help where you can. Ask another trusted friend or family member to take over for you, or perhaps even hire a professional caregiver to look after your loved one while you recuperate. That way, you won’t have to worry that your loved one isn’t getting proper care while you’re away, and you can just focus on feeling better.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

 

When Should You See an Elder Law Attorney?

You might be reading this and wondering when would be the right time to speak with an elder law attorney, or perhaps if you even need to speak with someone to begin with. The truth is that if you are put in a position to be in charge of a loved one’s property or other things, it may be a good idea to consider speaking with an elder law attorney before either you, your spouse, or parents make any large transfers of property. Some times that you might consider getting advice from an elder law professional include:

  • Before giving away a house, a part interest in a house, or a remainder interest in a house.
  • Before selling a home, regardless of if you intend to take cash, sell on contract, or buy another home.
  • Before giving away any significant gifts like stock or money to a child, relative, or charity, or
  • Before purchasing an annuity.

You’ll also want to seek counsel before either you, your spouse, or parents need any time of long-term care. A good time to do this would be:

  • When you start to feel that either you, your spouse, or parents might require long-term care in the foreseeable future.
  • Prior to you, your spouse, or parents getting too overwhelmed by all of the responsibilities and work that home care requires.
  • When you begin to notice that you, your spouse, or parents might be becoming unable to properly manage business or any other financial issues, in order to begin the process of establishing powers of attorney and other documents so that others can take care of the business later (and also make transfers in order to help someone qualify for Medicaid while also saving money for the home spouse).

Another good time to look into elder law advice would be if someone tells you that you, your spouse, or parents should try something new. Use caution when someone tells you:

  • That you, your spouse, or parents should really do something to better prepare for Medicaid.
  • That you, your spouse, or parents should so something that will preserve assets from Medicaid spend down.
  • That you, your spouse, or parents need to do or should do something in order that your assets can be passed to your spouse or children, instead of being used for things like paying bills or other such necessities.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Protecting a Resident’s Funds

Getting older is a challenge in and of itself, let alone having to think about possibilities like nursing homes or long-term care centers. Add everything together and it can be overwhelming what you have to remember and make note of. It’s possible you could be wondering just exactly what rights you have in a nursing home that’s been certified by Medicaid or Medicare, and remember that you do have rights and protections under both federal and state laws. These laws work together to ensure you get the care and services you need, and there are numerous rights and protections. However, our focus now is on to protect a resident’s funds.

First off, if you decide to deposit money with the nursing home or you ask them to hold or account for your money for you, you have to sign a written statement saying you want them to do this. Next, the nursing home must allow you access to bank accounts, cash, and any other of your financial records. They also must have a system in place that ensures full accounting for any of your funds, and they are not allowed to combine your funds with those of the nursing home. Third, they have to protect your funds from any kind of loss by providing an acceptable protection, like buying a surety bond. Finally, if a resident who has a fund dies, the nursing home is required, by law, to return his or her funds along with a final accounting to the person or court who is handling the resident’s estate within 30 days.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Social Security, Pensions, and Veterans’ Affairs

We’ve talked a lot about probate in previous articles, but you may still be foggy on how the probate process deals with things like social security, pensions, or even Veteran Affairs. We want to get you the answers you need, so let’s get started!

Like a great many other government-run programs, Social Security can be more than a little confusing, but it can also greatly benefit us as well. So, what does it do? One of the things it does is give surviving family members what are known as survivor’s benefits, along with any other benefits to any eligible person(s). Such benefits might include things like monthly payments or, if you prefer, a lump sum death payment.

Anyone who is a widow or widower, or any minor children or other family members might be eligible to receive benefits, but only if applicable.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.

Executor vs. Power of Attorney

If you have an executor already named in your will, do you still need a power of attorney? They aren’t really that similar, right? More or less the same things? No, in fact, they are not the same things; there are some key differences between the two, so let’s take a look at them now:

Power of Attorney

A person who is named power of attorney is someone who has the proper authority and powers (given by you) to handle any and all financial matters and property, and sign their name in your place. This authority only goes for as long as you are alive, and any power or authority you grant them ends at the time of your death.

Executor

Like a power of attorney, the person named the executor in the will has both power and authority to handle both property and finances after you’ve passed away (and after their appointment has been approved by the Court).

While duties of both executors and attorneys-in-fact (the official title of the person you appoint in a Power of Attorney) are quite similar, the main difference between them is that one of them has power and authority to act only so long as you’re alive (and ends once you’ve passed away), while the other has power that activates after you have passed away.

If you or someone you love needs assistance with Elder Care law issues, call 856-281-3131. Let us help ease your stress and give you a plan.