Probate: 
Probate is the legal process of transferring property following a person's death.  Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes his or her intentions as to the transfer of his or her property at the time of death (typically through a Will); his or her property is collected, certain debts are paid from the estate and the property is distributed accordingly.

Wills:
A Will is a written instrument containing directions on how the assets and property of the testator (individual creating the Will) shall be divided upon his or her death.  Wills can also contain instructions regarding the care of minor children, gifts to charity and formation of posthumous trusts.  In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses and he or she must be mentally competent and not acting under duress or under the controlling influence of another.

Trusts:
Trusts are estate-planning tools that can replace or supplement Wills and can also help manage property during life.  A trust manages the distribution of a person's property by transferring its benefits and obligations to different people.  Maintaining assets in a Trust often makes it easier to minimize taxes and leave a larger inheritance.  A Trust is also a way to provide a steady income to the Beneficiary over time (as opposed to distribution in a lump sum), thus reducing the Beneficiary's tax burden, allowing the Trust to grow through investment, and keeping assets free from creditors of the Trust beneficiary.  Trusts can also be established for the benefit of charitable organizations.

Probating Estates:
Estates are categorized as probate or non-probate property.  Probate property is property that is transferred by the provisions of a Will.  Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

Estate Planning:
Good estate planning is more than just a simple Will.  It minimizes potential taxes and fees (including Federal and State gift and estate taxes), and sets up contingency planning to make sure wishes regarding health care treatment are followed before and after death.  A good estate plan also coordinates what happens to a home, investments, business, life insurance, employee benefits (such as a 401K plan) and other property in the event of disability or death.

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 (the principal) to another (attorney-in-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 for the incapacitated person.  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 that can be limited in scope, or it can allow one person to give another the full power and authority to represent him or her.  There are two types of Power of Attorneys; one covering assets and one covering health care decisions.

Conservatorship:
A conservatorship is a court order that a person deemed fully or partially incapable be subject to the legal control of another person.  The conservator is responsible for the assets and finances of an incapacitated person.  Many jurisdictions use the term "guardian of the person" to refer to the same legal principle.  It may be necessary to petition a court to appoint a conservator for persons:

• Who have physical or mental problems that prevent them from managing their own financial affairs;
• Who have no person already legally authorized to assume responsibility for them; and
• Where other kinds of assistance with financial management will not adequately protect them. 

Guardianship:
A guardianship is a legal relationship created by a court between a guardian and his ward, either a minor child or an incapacitated adult.  The guardian has a legal right and duty to care for the ward.  This may involve making personal decisions on his or her behalf, managing property or both.  Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity or disability.

Elder Law 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 themself (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.

Advanced Health Care Directives:
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.  If you have proper planning in place, your family will not have the anxiety of wondering what actions you would want them to take and they will not need to argue amongst themselves about your medical care.

Utah has recently amended it's laws regarding Advanced Health Care Directives (as of 1/1/08).  Any directives that predate this new law should be replaced with a new directive.

Final Arrangements:
The purpose of final arrangements 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.

• Brigham Young University, Bachelor of Arts in Political Science, 1992
• Brigham Young University, Juris Doctorate, 1995

• Utah
• United States District Court

• National Academy of Elder Law Attorneys
• Weber/Davis County Estate Planning Council
• Multi-Disciplinary Team for Davis County Adult Protective Services
• Advisory Council for the Davis Applied Technology College paralegal program
• Wealth Counsel
• Advisors Forum
• Medicaid Practice Systems

• Weber State University, Bachelor of Science in Political Science, 2002
• Gonzaga University, Juris Doctorate, 2007

• Utah
• United States District Court