Estate & Elder Care Law
We receive all kinds of questions from seniors, their children, professionals and caregivers on a regular basis. Below, you will find a sample of the most common questions that we field along with answers that you may find helpful. If you don’t see your question or if you need more information, please call or write to us.
Are you easily accessible?
Yes, all of our offices and conference rooms are on the first floor, offering ease of access and convenience to our clients.
What is Probate?
Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.
What is a Will?
A will is the document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. In fact, wills have no legal authority until the maker dies and the original will is delivered to the Probate Court. Wills are an essential part of any plan. For parents with minor children, a will is the only way to appoint a guardian for an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of testamentary trusts to avoid death taxes. Finally, appointing a personal representative to handle one’s affairs after death and waiving bond, inventory and accountings, can ease estate administration.
What is a Living Will?
Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you have a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.
What is a Durable Power of Attorney?
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. Powers of attorney are only as good (i) as the agent appointed is trustworthy and (ii) the willingness of a third party such as a bank, insurance company and the like to accept the power of attorney. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding in which a judge determines who should make these decisions for you under the ongoing supervision of the court. Ideally, powers of attorney can avoid these lengthy, expensive and ongoing proceedings.
What is Elder Care Law?
Elder care law is a multidisciplinary area of the law focused on the needs of older clients and those with disabilities. Elder care law firms assist clients to respond to a variety of issues, including (i) Long-term care and nursing home care; (ii) Medicaid and asset protection planning; (iii) Medicare, Social Security and retirement income planning; (iv) Disability planning; (v) Housing options, such as assisted-living and residential homes for the aged; (vi) Financial and health care decision-making through the use of durable powers of attorney; (vii) End-of-life decision-making through the use of living wills and advance directives; and (viii) Probate, estate and trust administration.
Do I have to probate my father’s will?
Probate is necessary when there are assets without a joint owner or a designated beneficiary. For example, if the decedent had bank accounts or a house solely in his name, probate would be necessary to pass title to his heirs.
Can I just jointly title assets in a child’s name and avoid probate?
Perhaps, but you may be creating problems after death. Joint title to assets may pose an issue when there are multiple children, one or more of whom are not listed on the account. Also, joint titling does nothing to qualify one for Medicaid or other government benefits.
Is a Guardianship / Conservatorship necessary when there is a power of attorney?
A uniform durable power of attorney for financial purposes and a health care directive should give an agent the authority needed to act for someone without having to resort to the courts for appointment as a guardian or conservator. The ultimate answer, however, depends on how comprehensive the powers of attorney are.
Will we have to sell all of our assets if my wife has to go to the nursing home?
It is not necessary to deplete all of your assets if one spouse has to go to the nursing home. While Medicaid will only permit the institutionalized spouse to have $2,000 in countable assets, in 2022, the community spouse can retain a minimum of $27,480 and as much as $137,400 in countable assets. In addition, one’s house, a car, and prepaid burial plans are not counted for Medicaid eligibility. Please understand that precise computations and careful consideration of the allocation and apportionment of assets are necessary to maximize the community spouse’s retained property.
I have heard that all of my spouse’s income will go to the nursing home. Is this true?
Yes….but. The community spouse may be eligible for a Monthly Maintenance Needs Allowance which is designed to ensure that the community spouse receives up to $2,177.50 (2022) in monthly income if the couple’s joint income equals or exceeds that amount. In such a case, a portion of the institutionalized spouse’s income may be diverted to the community spouse. If the community spouse’s separate income exceeds $2,177.50, there is no reallocation of income, but there is also no limit to what the community spouse can earn.
I make too much money to qualify for Medicaid. What can I do?
In most states, including Alabama, there is a $2,523 monthly income cap for Medicaid qualification. That is why the use of Qualified Income Trusts (QIT or Miller Trusts) are important to avoid disqualification.
Can someone with dementia sign a power of attorney?
Dementia is a progressive disease. Depending on where the person falls on the continuum determines whether a person has capacity to sign a power of attorney.
How can I ensure that my final wishes are carried out?
The best thing that you can do is to talk to your relatives and loved ones and to tell them what you want and even what you do not want in regard to your funeral and burial arrangements. Secondly, the use of pre-paid funeral arrangements will alleviate much of the stress and emotion that families feel because those decisions have been made in advance.
How do I protect the inheritance of a child with a disability?
It is natural for parents to want to benefit all of their children; however, when planning an inheritance, a parent must be careful to not disqualify a child with special needs from receiving benefits to which they are now or may be eligible. We find that utilizing a supplemental needs trust with careful consideration given to the assets going into that trust will ensure that a child with special needs will receive an inheritance and will remain eligible for benefits.
Will Medicaid pay for Assisted Living?
Unfortunately, Medicaid long-term care benefits in Alabama are limited to skilled nursing facilities. There are some home-based waiver programs which one may qualify for, but independent and assisted living facilities are beyond Medicaid coverage.
What is an ABLE Account?
Achieving a Better Life Experience (ABLE) accounts allow the families of disabled children to set aside money for their care in a way that earns special tax benefits. ABLE accounts work much like the 529 accounts that families can use to save money for education. To qualify, the beneficiary must have been blind or disabled before age 26. A family can contribute up to $16,000 per year to an ABLE account, and he account will grow tax-free.
Will Medicare pay for nursing home care and if so, for how long?
Medicare Part A (hospitalization) will pay for 100 days of skilled nursing care per spell of illness and only for care that cannot be rendered in the home. Under Medicare, the patient has zero liability for the first 20 days in a nursing home. For days 21-100, the patient has a daily co-pay of $194.50 (2022), but Medigap plans may cover those out-of-pocket payments. Medicare will end after 100 days, and if the patient still requires skilled nursing, the patient will need to look to other available resources to pay for care, including private pay, long-term care insurance and Medicaid.
I have recently moved to Alabama. Is my out-of-state will valid?
So long as your will was valid in your state of residence when it was executed, it should be honored in Alabama; however, as part of the move, you may have sold a house or other assets and retitled others. A move is a major life event, so it may be wise to consult a lawyer to determine whether your overall estate plan is still what you intended it to be. Also, if you have moved from a community property state such as California, Texas, Arizona, New Mexico, Louisiana, Nevada, Idaho or Washington, you may want to discuss your assets with a knowledgeable practitioner to determine whether you want to preserve community property status for certain assets.
What is the difference between a springing and an immediate financial power of attorney?
A power of attorney in Alabama is presumed to be immediate, meaning that it is effective upon signing. Conversely, it is possible to stipulate that a power of attorney will be effective upon the happening of a future event such as a determination of disability, i.e., it “springs” to life. Under an immediate power of attorney, the agent need do nothing more to act; however, under a springing power, the agent cannot act until the contingencies have been met. This may include obtaining medical affidavits at a time when time is of the essence and resources are limited.