Wills, Estates & Elder Law Home Page   |   Elder Law Brochure

1) What is Elder Law?   -back to top
In a nutshell, Elder Law is that group of legal specialties which deals with the legal needs of older Americans. Since these needs are varied, making Elder Law decisions may involve participation by the client’s children, parents, medical personnel, financial advisors and governmental agencies, as well as an Elder Law attorney.

2) With what topics does Elder Law concern itself?   -back to top
Among others, Medicare and Medicaid, disability, Social Security, long term care insurance, competency, guardianships, supplemental needs, trusts, wills, estate and gift taxes, income and capital gains taxes and advanced directives, such as health care proxies and powers of attorney.

3) What is Medicaid?   -back to top
Medicaid is designed to pay the medical expenses of low- income individuals who are aged, blind, or disabled. It is funded by Federal, State and Local governments. Medicaid covers a wide array of services including inpatient hospital services, home health care services, dental, etc. Most often, older Americans apply for Medicaid to cover the payment of their nursing home care.

4) Do I have to have virtually no money or assets to apply for Medicaid?   -back to top
Not exactly. Medicaid eligibility is based on financial need of the applicant. You may apply for Medicaid at any time. But you may be required to “spent down” your assets until you come within the income and net worth eligibility guidelines. These guidelines do change, but they are quite low.

5) What is a Spousal Refusal?   -back to top
Each spouse is legally responsible to provide for the other. At the time one spouse applies for Medicaid, the community spouse may sign a spousal refusal form. This protects the assets of the community spouse from seizure by Medicaid. However, after the Medicaid spouse dies and if the community spouse is still alive, the local Medicaid administrator may sue the surviving community spouse to recover the money Medicaid paid on behalf of the Medicaid spouse. Your Elder Law attorney’s advice is critical in these circumstances.

6) What are Supplemental Needs Trusts?   -back to top
These are trusts set up during a person’s lifetime, or by a will, which provide money for another person who is in a governmental assistance program, such as SSI or Medicaid, without making that person ineligible. The trusts must be drawn in a very specific and precise manner, in order to maintain eligibility. Many community spouses and parents with disabled children on SSI set up these trusts for the benefit of their loved ones.

7) When does a person need a Guardian?   -back to top
At the point when, because of mental disability, a person can no longer make the responsible decisions for himself, a Guardian should be appointed. Guardianship is the Court supervised process of appointing a substitute decision make for an alleged incapacitated person (AIP). The guardian makes all the decisions about his ward’s person and property.

8) My parent may be losing mental capacity. Should I petition for a Guardian to be appointed right away?   -back to top
Not necessarily. If your parent is still competent, have him, or her, execute a Health Care Proxy and a Durable Power of Attorney. The Health Care Proxy authorizes the holder to make medical decisions for an incompetent, or incapacitated, individual. The Durable POA authorizes the holder to manage the affairs of the grantor, even if the grantor becomes incompetent. This Durable POA should be drafted by a professional, so that it contains expanded powers beyond those found in the standard office supply store form.

9) I hear a lot about Living Trusts. When are these useful?   -back to top
These trusts are beneficial in only a few circumstances. First, if you have assets which you no longer wish to manage, the trustee will do it for you (for a fee, of course). Second, if you own real estate in several states when you pass away, owning it in a living trust will avoid ancillary probate proceedings in each of those states. Last, if you have no relatives closer than second cousins when you pass away, a living trust will avoid a long probate proceeding. Living trusts do not save on estate taxes. They also cost more to draft than normal probate fees.

10) Do I need a Will and how often should I have my Will reviewed?   -back to top
Yes. Regardless of the size of your estate, you probably want your assets to go to the people, or institutions, you care about. Without a Will, State statutes dictate who in your family will get your assets, regardless of your wishes. Usually, every five years is the right interval for having a Will reviewed. If you have significant life changes, or your financial situations is altered, more frequent reviews are prudent.