Estate Planning

Estate Planning is the planning needed for the complex health care,
long-term care, and many other issues facing elderly and disabled
individuals and their families. Studies show that we stand a 40 percent
chance of needing long-term care at least once before we die.
Therefore, everyone should take into account that at some point,
residency in a nursing home or an assisted living facility may be
reality. How to pay for the care, is a very serious matter. Caring for
the elderly and ensuring their assets will be protected are some of the
primary services offered by our network of Elder Law attorneys.

The overwhelming cost of nursing home care for an incapacitated person
can wipe away a family’s assets for generations. The inheritance
planned for surviving family members could all disappear. An
experienced Estate Planning Attorney can help you:

Preparation of Estate Plans – Prepare and revise estate plans, including Wills, Trusts, Powers of Attorney and Advance Health Care Directives

Estate Administration – Assist with the administration of estates, including probate and non-probate administrations

Tax Planning – Assist with planning for and minimizing estate and gift taxes

Gifting – Assist individuals and families with making gifts of assets among family members

Charitable Giving – Assist with planning for
charitable gifts, and creation of appropriate legal documents, such as
charitable remainder trusts and charitable gift annuities

Dispute Resolution – Represent family members in
disputes involving wills, trusts or estates, including alternative
dispute resolution (mediation or other settlement or arbitration) and
litigation, if necessary

Guardianship – Represent family members in
guardianship proceedings, including seeking or disputing appointment of
a guardian and assisting with administration issues

Formation and Administration of Family Business Entities – Assist
with forming, administering and terminating family businesses,
including family limited partnerships, limited liability companies and
corporations

Trust Formation – Assist with the creation of a legal
Trust, so as to create a new entity that will hold the families assets
and protect those assets from creditors, while still being able to
benefit the beneficiaries of the trust. Upon the death of one of the
Beneficiaries, their is usually is no tax consequence. Merely, the
surviving members of the trust continue to receive the trusts benefits.
A trust is a legal arrangement whereby a person (the “settlor”) gives
property to another person (the “trustee”) to hold for the benefit of
one or more persons (the “beneficiaries”). Trusts established while a
settlor is still alive are called “inter vivos trusts.” A legal
document which sets out the terms of an inter vivos trust is usually
necessary. “Testamentary trusts” are trusts that are created by Will
and arise on death.

Medicaid Asset Protection Strategies

The recent passage of the Deficit Reduction Act,
has imposed several restrictions which prevent people from protecting
or hiding their assets. However, for married couples where one spouse
requires long-term care, there some techniques and other asset
protection strategies that remain viable. Some of these techniques may
include setting up an Irrevocable Living Trust, making gifts to family
members, and paying for certain Medicaid expenses.

Did you prepare a will?

Do you have a living will or Medical Directive?

Does your family and significant others know where to find them?

A will
is legal written document which gives direction over the disposition of
property at death. The laws of each state are different. However, most
jurisdictions require the following formal requirements for a will to
be legal.

You, the maker of the will (called the testator), must be at least 18 years old.
You must be of sound mind at the time you sign your will.
Your will must be written.
Your will must be witnessed (and notarized) in the special manner provided by law for wills.
It is necessary to follow exactly the formalities required for the execution of a will.
To be effective, your will must be proved in and allowed by the probate court.

No will becomes final until the death of the testator, and it may be
changed or added to by the testator by drawing a new will or by adding
a “codicil,” which is simply an addition or amendment executed with the
same formalities of a will. A will’s terms cannot be changed by writing
something in or crossing something out after the will is executed. In
fact, writing on the will after its execution may invalidate part of
the will or all of it. If you want to change something in the will, it
is probably better to consult an attorney to make sure your true wishes
are carried out properly.

WHAT CAN BE ACCOMPLISHED BY A WILL?

You decide who gets your property instead of the law making the choice for you.
You
may name the personal representative (executor) of your will as you
choose, provided the one named can qualify under the law in your
jurisdiction. A personal representative is one who manages an estate
and may be either an individual, a bank or trust company, and is
subject to certain limitations.
A trust may be created in
a will whereby the estate or a portion of the estate will be kept
intact with income distributed or accumulated for the benefit of
members of the family or others. Minors can be cared for without the
expense of proceedings for guardianship of property.
Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.
You may make gifts, effective at or after your death, to charity.
You decide who bears any tax burden, rather than the law making that decision.
A guardian may be named for minor children.

WHAT IS A GUARDIANSHIP?

A guardianship is a legal proceeding where a guardian is appointed to exercise the legal rights of an incapacitated person.

WHAT IS A GUARDIAN?

A guardian is an individual or institution such as a bank trust
department appointed by the court to care for an incapacitated
person-called a “ward”-or for the ward’s assets.

HOW IS A PERSON DETERMINED TO BE INCAPACITATED?

Any adult may file a court petition to determine another person’s
incapacity. The document must include a certification setting forth the
factual information upon which they base their belief that the person
is incapacitated. The court will then appoint a committee of two
professionals, usually physicians, and a lay person to examine the
person and report its findings to the court. The court also appoints an
attorney to represent the person alleged to be incapacitated. If the
examining committee concludes that the alleged incapacitated person is
not incapacitated in any way, the court will dismiss the petition. If
the examining committee finds the person to be incapable of exercising
certain rights, the court schedules a hearing to determine whether the
person is totally or partially incapacitated. If necessary, a guardian
will be appointed at the end of the incapacity hearing.

WHO MAY SERVE AS GUARDIAN?

Any competent adult can serve as a guardian. However, people who have
been convicted of a felony or who are incapable of carrying out the
duties of a guardian usually cannot be appointed. Often, a bank’s trust
department, a nonprofit religious or charitable corporation, or a
public guardian can be appointed as a guardian, but a bank trust
department may only act as guardian of the property, not on the medical
issues. The court gives consideration to the wishes expressed by the
incapacitated person in a written declaration of preneed guardian or at
the hearing. In these situations, the significance of the living will
becomes all too obvious. Everyone needs a living will.

WHAT DOES A GUARDIAN DO?

A guardian is given authority over any of the incapacitated person’s
property. First they take an inventory of the property. They will
invest it and use the proceeds for the incapacitated persons support.
The Guardian must account for the inventory and any proceeds by filing
detailed annual reports with the court. In addition, the guardian must
obtain court approval for certain financial transactions.

The guardian of the ward’s person may exercise those rights that have
been removed from the ward and delegated to the guardian, such as
providing medical, mental and personal care services and determining
the place and kind of residential setting best suited for the ward. The
guardian of the person must also present to the court every year a
detailed plan for the ward’s care.

Whether you are facing long-term care issues yourself or you have a
family member who is, we encourage you to contact an attorney today. Be
sure to call sooner rather than later because the timing of the
decisions that families need to make has a dramatic impact on whether
or not someone can actually qualify for this type of support.

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