Elder law and estate planning is a highly specialized and increasingly important area of the law defined by our clients’ needs and not as much by a specific area of the law. We are often asked at what age someone should seek the advice of an elder care or estate planning attorney. Based on our experience it’s never too early to plan.
Clients in their 30s, 40s and 50s need to consider long term planning to make sure they will have enough to live on when they retire. In addition, they should consider and understand long-term care insurance and what those policies cover and pay for. Clients in their 60s are considering and planning for retirement; and clients in their 70s, 80s and 90s are faced with decisions about long term care options which may include nursing home care or assisted living.
Our goal with respect to elder law and estate planning is to help you to protect your assets against the high costs associated with getting older so you can enjoy the peace of mind that comes from knowing there is a plan in place for your future.
Estate Planning is the process by which people develop plans that ensure the assets they have worked hard to accumulate are protected and distributed to those they choose. Estate planning is about the future of your families or loved ones.
The attorneys at Novins, York & Jacobus have helped people plan their estates for more than 80 years. Our goal is to help people make and implement plans that carry out their wishes regarding their families and their property and limiting any future disputes. In so doing, we provide peace of mind and the comfort of knowing their assets will be preserved for the next generation.
There are three (3) basic documents that are considered important:
- Last Will & Testament
- Power of Attorney
- Healthcare Directive (ie. “Living Will”)
Composing a Last Will & Testament helps to ensure that you control how your estate is divided, designation of your Executor, Trustee and Guardian. An estate that is not covered by a will is called “intestate”, and your belongings will pass according to state law, not according to your wishes.
A power of attorney is a written document that allows someone else to handle your financial affairs. It can be “springing”, meaning it only becomes effective on your incapacity, or it can be “durable”, meaning it becomes immediately effective.
A Health Care Directive sets out circumstances where you do not wish for extraordinary measures to be taken to prolong your life.
Depending upon the size and complexity of the estate and a client’s personal situation (former marriage, step-children, etc.), additional estate planning may be necessary. Arrangements may include some of the following:
- Family Limited Partnership;
- Buy-Sell Agreement; and
- Irrevocable Life Insurance Trust.
What is Probate?
Probate is a court-supervised process with respect to the administration of the estate of a deceased person. It specifically resolves all claims and distributes the decedant’s property under a valid will or the state laws). Probate provides for the following:
- Protects the instructions of the deceased;
- Confirms either an executor or administrator as the personal representative of the decedent’s estate;
- Protects the interest of heirs and creditors of the estate; and
- Provides third persons with the necessary legal assurances relative to dealing with the decedent’s property.
Types of Probate
- Uncontested Probate of a Will – probating a will is a simple and cost-effective procedure. It involves a few simple procedures in the Surrogate’s Court.
- Contested Probate of a Will – these are often difficult and emotional for all involved. When the validity of a will is contested, the procedure becomes adversarial.
- Application for Administration of an Estate – when there is not a will, but there are debts that need to be paid and assets that need to be distributed, an interested person can apply for administration of an Estate.
- Emergency Orders – sometimes a situation may arise that requires a person to obtain an immediate order so the assets of an estate can be preserved, a safety deposit box opened, or funeral expenses paid.
Guardianship is the legal process by which the person and property of incapacitated persons are protected. It is important to distinguish between someone who is disabled and some one who is legally incapacitated or financially incapable.
We all require assistance with some aspect of our lives. Some people require more assistance than others. When representing a client with disabilities, we focus upon what assistance the client requires and how we can facilitate the continuation or improvement of that assistance. The mere fact that the client is disabled does not mean that the client is incapable of managing financial affairs. Put another way, not all disabled persons are incapacitated.
A guardian of a person is responsible for seeing the incapacitated person has food, clothing, shelter and medical care. A guardian of property is responsible for protecting the property and income of the incapacitated person and spending those funds for the incapacitated person’s benefit under the supervision of the probate court. We can assist you in seeking the appointment of a guardian and in carrying out the duties of a guardian once appointed.
Many of our clients seek our help with an elderly parent suffering from Alzheimer’s disease or dementia. Our attorneys have many years of experience in this field and are here to help you at this difficult time.
These types of services are most commonly needed when:
- An elderly parent is no longer able to make medical or financial decisions;
- A disabled child becomes an adult; or
- A minor needs to make a financial transaction in his or her own name, or owns funds that need to be invested.
The Medicaid Mistake
Two out of three families run out of money within the first year of a prolonged nursing home stay.
So are you destined to go broke if you require long-term nursing home care? Not necessarily, we can help you to obtain assistance from Medicaid, without having to spend down all your assets. We can show you ways to protect your life savings against the high cost of nursing home care through advanced planning, or help you in a Medicaid crisis situation.
The worst thing you can do is to transfer assets to loved ones without fully understanding the possible consequences.
The laws surrounding Medicaid are very complicated and strictly enforced. Many people think they can simply transfer assets to loved ones and then qualify for Medicaid without penalty. Nothing could be further from the truth. The Deficit Reduction Act of 2005 established a “look-back” period of five years for all asset transfers or gifts. If it is determined an asset was transferred for less than fair market value during the five year look-back period, a penalty will be assessed, making the applicant ineligible for Medicaid for a number of months, even years. This means a nursing home stay will have to be paid for privately.
Consult with us before you begin transferring assets or applying for Medicaid. We will show you how to do so without incurring severe financial penalties.
What to do if you’re having a Medicaid crisis
If you or someone you love is currently faced with a Medicaid crisis situation, please contact us immediately to learn how we can help. We can show you a number of ways to get assistance from Medicaid and guide you through every step of the application process. And even if you have been denied benefits in the past, we may still be able to help you get every penny you are entitled to, and protect much of your life savings.
- Life Insurance Trusts;
- Revocable Living Trusts;
- Family Limited Partnerships;
- Irrevocable Living Trusts;
- Educational Trusts;
- Bypass Trusts; and
- Special Needs Trusts.
During a century of changing legal and economic conditions, the firm's commitment to integrity, responsiveness and client service has never wavered. That’s our goal, and that’s what we have been doing for more than 80 years.