Practice Areas

Practice Areas and Legal Definitions

Elder Law:
Aging clients and their families face troubling issues when confronted with the possibility of financing long-term care for themselves or for their loved one. As people live longer and longer due to overall advances in medicine, the likelihood that a family member will require nursing home care or significant and costly assistance at home increases. And once in a nursing home, people tend to live much longer than they did in the past.

Unfortunately, payment for nursing home care is not part of Medicare's basic entitlement package. If one needs nursing home care, one either has to pay for this cost oneself (privately or with long term care insurance), or qualify for Medicaid.

Medicare's nursing home benefit is limited in duration and amount, and covers only skilled care, and then only after hospitalization. Medicare does not cover custodial or residential care. Medicaid, on the other hand, is a welfare program for health care expenses that does cover nursing home custodial and/or residential care. To be eligible for Medicaid benefits the patient (and spouse, if any) must meet three conditions: one of wealth or resources, one of income, and one of need for assistance. The value of the patient’s countable assets cannot exceed $2,000.

If the patient’s spouse is also seeking Medicaid benefits, the value of their combined or total countable assets cannot exceed $3,000. But if living in the community, the spouse may retain countable assets worth slightly over $100,000. The patient’s monthly income must not exceed approximately $5,000 (or approximately $1,800 to be eligible for at-home help). The income of the community spouse, however, is not a limiting factor and is not taken into account in the patient’s eligibility determination.

Medicaid has additional rules penalizing the transfer (or giving away) of assets, and rules under which Medicaid may seek to be reimbursed for benefits paid after the patient dies. One of the available mechanisms is to impose a lien on the patient’s residence during the patient’s lifetime. Another is to assert a claim for reimbursement  against the estate of a patient when the patient dies. Therefore, without planning, a family can face financial devastation in the event of nursing home placement. There may be insufficient funds for the community spouse or the inheritance intended to be left behind can be consumed and, even worse, a disabled dependent child can be left without supplementary support.

Fortunately, all is not bleak. Elder law attorneys can help elderly clients and their families avoid some or all of the devastation through application of techniques found in the Medicaid Statutes and Regulations. In short, within the rules, sophisticated planning strategies can be employed and the proper use of these strategies can help preserve precious resources for the community spouse and future generations.

Estate Planning:
Estate planning is a process to consider alternatives for, to think through, and to set up legally effective arrangements that would meet your specific wishes if something happens to you or those you care about. Good estate planning is more than just a simple Will. Estate planning also typically minimizes potential taxes and fees, and sets up contingency planning to make sure your wishes regarding health care treatment are followed. On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you became disabled or if you die. On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you select would do that for you.

Estate Taxes:
Federal Estate Taxes are only charged against Estates with assets exceeding $2 million in value in 2006 through 2008 (4 million if you are married); 3.5 million in 2009 (7 million if you are married) and then in 2010 there is no federal estate tax. However in 2011 the Federal Estate Tax is returned to the 2002 level of $1 million.

Wills:
A Will is a written instrument containing directions for how the property of the person making the Will (called the testator) shall be divided on his or her death. State law generally requires that the Will be signed by the testator and by at least two witnesses who have no interest in the property passing under it. The testator must state in the presence of the witnesses that the instrument is his or her Will. He or she must also be competent (not insane, senile or mentally disabled) and not acting under duress or under the controlling influence of any person. A signed instrument purporting to be someone’s Will is not officially recognized until the court having jurisdiction over the instrument declares it to be a valid Will after examining it and the circumstances surrounding its execution. The process by which a court determines whether a Will is valid is known as probate.

Family Trusts:
A trust is a fictitious legal entity that owns assets for the benefit of a third person (beneficiary). The Grantor of the Trust is the person who set up and gave money to the Trust. The Trustee of the Trust is the person charged with keeping the assets safe, invested properly, and finally distributed to the Beneficiary at the proper time. The Grantor can pretty much decide how the money must be kept (in interest bearing accounts, in real estate, or only in government insured FDIC accounts, etc.), and when it may be distributed (when the beneficiary is 18 years old; or one half when the beneficiary turns 18 and the other one half when the beneficiary turns 21, etc.). The Grantor of the Trust can also be the Trustee of the Trust, if the Grantor decides to set the Trust up in such a manner (e.g., Grantor sets him/herself up to be the Trustee of a Trust for his/her child).

Advanced Directives for Medical Treatment:
An advanced directive is a document which allows you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life.  It can also express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.  This is a very important aspect of planning that can ease the anxiety and burdens on your family if something happens to you, as they will not have the anxiety of wondering what actions you would want them to take and they will not need to argue themselves amongst themselves about your medical decisions.

Powers of Attorney:
Powers of Attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person, generally called the principal, to another, called an attorney-at-fact or agent.  When a person becomes incapacitated, the government or the court often steps in and appoints someone to represent and make legal decisions that the person would have to take. One of the ways to avoid government or court intervention, and the appointment of a stranger to act as your guardian, is to use a Power of Attorney. A Power of Attorney is a written document stating that one person gives to another the full power and authority to represent him or her. It must be signed by both the attorney and the principal, witnessed by two people and notarized.

Final Arrangements:
It is a way to express your death and burial preferences in writing. What you choose to include in your final arrangements document is a personal matter. A typical final arrangements document may include:

• The name of the mortuary or funeral home that will handle burial or cremation
• How your remains will be transported to the cemetery/memorial park and gravesite
• Whether or not you want to be embalmed
• Details of any ceremony you want before the burial or cremation
• Who your pallbearers will be (if you want any)
• Type of casket or container in which your remains will be buried or cremated, including whether you want it present at any after-death ceremony
• Details of any marker you want to show where your remains are buried or interred
• Where your remains will be buried, stored or scattered
• Details of any ceremony you want to accompany your burial, interment or scattering.