Elder Law

There are many issues that an Elder Law attorney will focus on, including estate planning, retirement planning, and planning to preserve wealth (tax planning). The Law Office of Lynn A. Dean offers a comprehensive portfolio of Elder Law services, including:

Elder Law deals with legal issues that may arise with a person’s advanced age. An Elder Law Attorney can:

  • Create documents that allow for medical decisions to be made for a person who is no longer able to make those decisions for themselves.
  • Protect the rights of those who suffer from mental incapacity.
  • Evaluate a family’s financial resources when one spouse (or parent) must move out of the home into an assisted living or skilled nursing facility.
  • Facilitate the transfer of estate assets in cases where a Will, Trust, or other legal documentation is not available.

In recent years, attorneys have been called on to fight the growing problem of elder abuse. Elder abuse may take many forms, from mistreatment in a nursing home, to financial abuse by a caregiver or family member. Elder Law attorneys can prepare documents, allowing one or more persons to become the agent for an incapacitated or vulnerable senior. If the senior did not prepare these documents prior to being mentally incapacitated, then the Elder Law attorney may need to establish a conservatorship for the senior.

The challenge of Elder Law is that every family situation is unique. An Elder Law attorney will often act as a counselor as well as an attorney, helping to facilitate relationships between family members. Attorneys are even called upon in extreme situations to fight elder abuse. It’s critical that these situations are dealt with swiftly and effectively, which is why choosing an attorney specialized in Elder Law is so important.

Probate

The legal process available for transferring assets is called probate. A typical probate will take approximately six months, and many cases take longer. If the estate is held only in cash assets, of less than $100,000.00, the estate may be transferred through a simpler method. If the estate contains only real estate, there is a proceeding called a summary probate, which is a much faster process.

Conservatorships

In California we have two types of conservators: a conservator of the person who is responsible for the day-to-day decisions, such as where the person will live and what health care will be needed. The second type is a conservator of the estate, which is the person who manages the money. Conservators must report to the court on a regular basis as to the well being of the individual, and how they have handled the financial affairs.

Medi-Cal Planning

Medi-Cal is a support program run by the State of California, Department of Health Care Services. A portion of the money comes from the federal government. The State of California gives money to each county, and the administration of the funds takes place at the county level. This program is called Medi-Caid in every state except California. There are four kinds of Medi-Cal to meet the needs of people who are:

  • Low income, in need of food stamps and medical care
  • Disabled and need medical care
  • Needing assistance to stay in their homes as they age, or if they become disabled (In Home Supportive Services- or IHSS)
  • Looking for long term care in a skilled nursing facility

Medi-Cal planning is done to determine if a person qualifies for Medi-Cal based on their needs and assets. This type of planning is very specialized, as each family’s situation is different. If a person receives Medi-Cal benefits during their lifetime, the State of California may be entitled to recover the monies that have been advanced from the person’s estate (heirs) upon their death. It is very important to look at both the qualification aspects and the estate recovery conditions when considering whether to apply for Medi-Cal benefits.

You, the consumer, should also be aware that not every facility accepts Medi-Cal in payment for services. There is no rule that requires a licensed facility to do so. If a person is on Medi-Cal because they have no income other than their social security, they will have limited choices in terms of the number of facilities that will be available. If you need assistance in finding a facility that will accept Medi-Cal, there are companies who can assist you with this process. I will be happy to refer you to a good one.

For more detailed information on Medi-Cal, see the California Association for Nursing Home Reform.

Irrevocable Trusts

There are many types of trusts which estate planners can create. The most common is the Revocable (or Living) Trust. This trust may be changed during the life of the Settlor, and may even be changed after the death of the first spouse, if the trust allows for this. An Irrevocable Trust is one that cannot be changed. It is less common, because it is less flexible than a Revocable Trust. However, there are certain circumstances where an Irrevocable Trust can be a useful estate planning tool.

For estates that exceed $1 million, or when we believe the estate is likely to be subject to estate taxes, a person can create an Irrevocable Life Insurance Trust (ILIT). This trust typically holds an insurance policy that is payable upon the person’s death, and the funds are used to pay estate taxes. The purpose of having the trust be “irrevocable” is to keep the assets outside of the person’s estate. If the policy is owned by the Irrevocable Trust, and the trustee of the trust pays the premiums for the policy, the proceeds of the policy are not considered part of the person’s estate for estate taxes. The transfer of funds to an Irrevocable Trust is considered a gift. There are many rules associated with the creation of this type of trust, and it should not be done without the assistance of an attorney.

We have also created Irrevocable Trusts for grandchildren. By creating this type of trust, the grandparent can take advantage of the tax rule which allows annual gifts to be made. The current limit of the annual gift is $13,000 from one donor to an unlimited number of donees. Thus two grandparents could make a combined gift of $26,000 to each grandchild’s trust, and they would not be required to report these gifts to the IRS. If the grandparents did not want the grandchild to have the funds immediately, they can create a trust that states when the grandchild may receive the funds, and what the funds may be used for.

There is also a common irrevocable trust that is created after the death of the first spouse, when the two spouses created what is commonly known as an A-B Trust. This trust is funded after the first death. The surviving spouse is typically the trustee, but if the funds are being set aside for that spouse’s children or other designated beneficiaries, there may be a different trustee or co-trustees designated to manage the trust. The creation of the new Irrevocable Trust will require the trustee to obtain a tax identification number (EIN) for the new trust, and the trustee will be required to file annual tax returns for the Irrevocable Trust in addition to their own return.

Veterans Benefits

We have been very excited to see how many people can take advantage of Veteran’s Benefits to assist with the cost of “in home” and long term care. These benefits are available to Veterans and their spouses. There are two important qualifications:

  • Veteran (either spouse) must have served at least 1 day during a period of active war
  • Person applying (either spouse) can have only $80,000.00 of assets. If the parties have more than this asset amount, it would be best to have them meet with a Veteran’s benefit specialist, who can assist with the planning techniques available to allow them to qualify.

These benefits have been quite valuable to my clients, and we want to be sure that everyone learns about them. Our Veterans gave their time under the most difficult of conditions for the benefit of their children, and our children. We will be happy to provide the names and phone numbers of planners who work in this area. There is also a Veteran’s Service Office located in Auburn, California that can answer your questions about these benefits.