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Elder LawELDER LAW

Elder law is a specialized and complex area of legal practice, covering estate planning, wills, trusts, arrangements for care, Medicare, Medicaid, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other issues involving individuals over the age of 65. 

Estate PlanningESTATE PLANNING

Estate Planning is the process of making a plan for future incapacity and death.  Every good plan includes a conversation regarding future goals and wishes.  Everyone has a different idea of what it means to live well as one ages or how to distribute assets after death.  Planning tasks include health care powers of attorney, financial powers of attorney, a will, and potentially a trust.  Questions to answer include: who a guardian for children should be, who the personal representative should be, who the beneficiaries should be and how they should receive their inheritance.

TRUSTS

A trust is a document that controls assets in the manner written in the document.  Estate Planning may involve many different types of Trusts such as Revocable Trusts, Life Insurance Trusts, Special Needs Trusts, Pet Trusts, or Charitable Trusts.  A Trust is a way to do tax planning and to control the distribution of assets after death. This control can be the age of the beneficiary at distribution, a particular year post death for distribution, experiences that should be engaged in or avoided by the beneficiaries, or preservation of public benefits, etc.  Trusts are particularly important for individuals with minor children, individuals with special needs, persons who have been previously married and have children from the prior marriages, or who have a high net worth.

ProbatePROBATE

In simple terms, probate is nothing more than the process a legal court takes to conclude all your legal and financial matters after your death. A properly drafted and executed Will can be admitted to the court to appoint your chosen executor to manage your affairs.  If there is no Will, the State Statutes will indicate who is the beneficiary of your estate.  With a thorough strategy and execution of the proper documents the need for probate can be avoided.  However, sometimes Probate is necessary.  This can occur due to deaths that may require litigation or as part of a long term Medicaid strategy.

Powers of Attorney & GuardianshipPOWERS OF ATTORNEY & GUARDIANSHIP

A power of attorney (POA) is a legal document giving one person (the agent or attorney-in-fact) the power to act for another person (the principal). There are two types of Powers of Attorney.  

A Financial Power of Attorney is a document that gives authority either temporarily or permanently to another individual regarding financial matters. The amount of authority is whatever is written in the document.  Not all Financial Powers of Attorney are the same.  Some grant only a few powers.  Some grant authorities that are good for a short time or a specific purpose.  Generally, however, in estate planning a General Durable Power of Attorney is effective as soon as it is signed and grants very broad powers to the agent.  In Elder Law, these powers will include strategies for spending money wisely and keeping as much as possible during a long term medical care crisis.

A Health Care Power of Attorney is also called an Advanced Directive or a Medical Directive.  This document names a person to act in the event the principal can no longer receive and evaluate information.  It must be “activated” by medical personnel in order for the agent to begin to act.  In Wisconsin, there are three important questions to be answered in this document: Can my agent make a decision about nursing home care?, Can my agent make a decision about community based residential facilities?, and Can my agent make a decision about withholding or withdrawing a feeding tube?.  Although it seems strange, the answer to these questions should be “yes.”  Saying “yes” gives your agent the ability to act on your behalf with your wishes.  Saying “no” leaves these decisions in the hand of the court through guardianship.  

Guardianship means obtaining the legal authority to make decisions for another person. A “guardian” is the person appointed by the court to make decisions on behalf of someone else. The person over whom the guardianship is granted (the child or the adult) is referred to as the “ward” or “protected person.  A guardianship may be over just the person or person and estate.  For functional adults, a health care power of attorney and financial power of attorney usually avoid the need for guardianship.  For disabled individuals turning 18, for minors who have lost their parents or for older adults who can no longer make decisions on their own, the guardianship process is necessary to make sure a decision maker is appointed.  Occasionally, the guardianship court will need to fill in a gap for estate planning when a needed authority was not granted.  For example, some guardianships are necessary when a person marks the box “no” on the nursing home question on the health care power of attorney and a hospital must make a long-term placement to a nursing facility.  Often, a guardianship of the estate does not include the authority to create and fund a special needs trust and a “limited” guardianship is necessary to grant this authority.

Real EstateREAL ESTATE

Real Estate matters in estate planning is important.  If a person has a trust, the real estate should either be titled in the trust or have a non-probate designation (Transfer on Death) to the trust.  If a person is utilizing a Will with beneficiary designations, the Transfer on Death designation is important to make sure the real estate does not become an asset to go through probate. 

Special Needs TrustsSPECIAL NEEDS TRUSTS

A special needs trust is a document for individuals with physical, mental, emotional, or cognitive disabilities.  There are two types.  A first party special needs trust is a person’s own money.  The money is put into the trust to allow another person to manage it for them.  While exempt for Medicaid purposes, the proceeds from this trust must be paid back to the government at death if the individual was on public benefits.  A third party special needs trust is someone else’s money.  These are usually trusts set up by parents for their disabled children.  This allows the children to inherit money without losing public benefits.  A well drafted document will protect public benefits such as Supplemental Security Income and Medicaid. 

Another option to the attorney drafted special needs trust is a “pooled” or community trust.  In Wisconsin, these trusts are Wispact and Life Navigators.  A pooled trust has one Trustee and one Master Trust for many individuals.  The money itself is not pooled together, just the management of the assets.  These are the only special needs trusts available for individuals who are over the age of 65.

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