Elder Law / Medicaid and Estate Planning
Do you have unanswered questions such as...
Do I need a Will? What is a Trust? Should I use a Will or a Trust? What happens if I die at a time when my children are very young? Can I leave a part of my estate to my disabled child? What happens if I have to go into an assisted living facility or nursing home? How would I pay for it? Will I lose everything I own?
These are very common questions and the lawyers at Watkins Calcara, Chtd. can provide you with the information necessary to answer these questions and design a plan to match your specific wishes.
What if I go into a Nursing Home or Assisted Living Facility?
We all knew to save for retirement, but most of us did not plan for a retirement that would include paying more than $5,000/month to a nursing home because of failing health. Although there are many very nice, modern, and comfortable nursing homes throughout our state that have attentive staff that care for each resident, most of us simply don't want to contemplate it. Will I lose everything? What about my spouse and my children? There are opportunities available for asset preservation but the earlier you pre-plan for this scenario, the more options you have. The Medicaid rules are quite complex and ever changing so it is critical you visit with an attorney trained in this area. Even if circumstances result in limited options, an attorney can guide you through the Medicaid spend down process and filing the Medicaid application.
Managing Assets During Your Lifetime
Although no one desires to contemplate one's incapacity, whether physical or mental; the best way to insure your wishes and desires are respected is to execute proper estate planning documents. One solution is a Power of Attorney which allows you to appoint someone of your choice to act on your behalf if you become unable to do so. There are several items one should consider when signing a Power of Attorney which should be discussed with your attorney:
Do I want my agent's authority to be effective immediately or only at a time I actually become disabled?
Should I limit the powers I give to my agent or should they be all inclusive?
Should I appoint two agents? If I do, will they have to act together?
Can I and should I name a successor agent?
Should my agent to have the authority to sell my homestead?
Can I authorize my agent only while I travel out of the country for three months?
Managing Assets After Your Death
Estate planning is a process to assure your assets pass to the people you choose after your death. There is no one correct way to create the proper estate plan. There is, however, a proper estate plan for each person, couple, and family. An estate plan that works for Mr. Jones may not be the proper estate plan for Mr. Smith. If you do not create an estate plan, the state decides who will receive your assets.
If you want to retain control over who will receive your assets at the time of your death, execution of the proper estate planning documents is a necessity.
For those who are in second marriage who want to insure their natural children will receive their assets upon their death, even if they predecease their spouse, an estate plan is imperative. The two most common structures used for estate planning are:
Last Will and Testament:
If a Will is used to provide instruction as to who should receive a decedent's assets, then a probate will be required after the death of the decedent. Many are under the mistaken belief that a Will does not include probate. Probate is simply the process of obtaining a court's oversight of settlement of an estate and an order to re-title the assets of a decedent pursuant to the instructions contained in the Last Will and Testament.
Because of the public nature of the probate pleadings filed in court, many wish to avoid probate. If used properly, a Trust will allow your heirs or beneficiaries to distribute your assets according to your wishes without requiring participation by a court.
What if I have a disabled child?
Parents with disabled children can insure all or a portion of their estate is set aside to be used for the benefit of a disabled child without causing their child to be ineligible for public benefits by using a special needs trust in their estate plan. These require special provisions not found in standard trusts.