Caregiving at Home Series Understanding the Basics of Elder Law Attorney Tom McCarthy The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 1
What is elder law? Elder law is not so much about the type of law that it is, but is more about the types of clients that it serves. Elder law attorneys help people who are elderly and people who are disabled with their legal needs and the various issues that arise within the continuum of care . This ofuen includes working with a client’s financial planner to ensure that money is available to pay for the quality of care that the client desires . The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 2
THE FOUR WAYS THAT OWNERSHIP OF PROPERTY IS TRANSFERRED AT DEATH PROBATE: NON-PROBATE: Probate assets are the only assets transferred pursuant to the decedent’s Will. BY WILL BY JOINT OWNERSHIP BY CONTRACT BY TRUST Benefjciary Designations: Life Insurance Policies Probate assets : titled in IRA Accounts only ONE individual’s name Typical Examples: Annuities Husband/Wife Brokerage Accounts: TOD (Note: A Trust set out in A legal entity that is similiar Parent/Child Real Estate: Benefjciary Deeds a Will is referred to as a to a family corporation. Grandparent/Grandchild US Savings Bonds: POD Testamentary Trust and it Among Siblings Motor Vehicles (DOR): TOD does not avoid probate Bank Accounts: POD) administration. Personal Property: Deed of Gifu Deed of Gifu: Household items and similar personal property Pour-Over Will Through the probate Assets pass to Benefjciaries, Assets pass to the process, assets pass to the Assets pass to surviving, pursuant to Benefjciary, TOD benefjciaries named in the Benefjciaries named in the titled owners (can be or POD provisions (can be Trust (children, Will (can be individual/s individual/s or Trust/s) individual/s or Trust/s) grandchildren, etc.) or Trust/s) KEY: DOR = Department of Revenue; TOD = Transfer on Death; POD = Paid on Death The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 3
Estate Planning vs. Elder Law Estate Planning Elder Law Traditional estate planning Elder law focuses on life focuses on the movement of planning , not just transfers wealth from one generation that could occur at death. to the next. Generally, elder law emphasizes on the issues that arise from today’s longer life spans, rather than death- related transfers The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 4
Elder law can touch upon a multitude of issues: • Help with traditional estate planning m Probate avoidance m Trust and probate administration • Eligibility requirements of various government benefits , such as Medicaid, VA benefits, Medicare and others • Planning for incapacity with legal documents • Guardianships and conservatorships • Fiduciary litigation • Special needs trusts for the benefit of individuals who are disabled The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 5
Capacity Issues When the person no longer has capacity, the following occurs... If planned earlier : • Powers of attorney are in place • Healthcare and advance directives are in place • Other estate planning documents are in place • The person has communicated his or her wishes If failure to plan: • Guardianships and conservatorships may be needed • The family may face immediate crisis The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 6
Powers of Attorney Durable Power of Attorney • The power of the attorney-in-fact to act on the principal’s behalf continues despite the principal’s incapacity , whether or not a court decrees the principal to be incapacitated. Power of Attorney (without “Durable” language) • The power of attorney is revoked and the power of the attorney-in-fact to act for the principal automatically stops if the principal becomes incapacitated . The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 7
Powers of Attorney • Principal : the person who creates and signs the Durable Power of Attorney • Attorney-in-Fact : the person who the principal appoints to act on his or her behalf and in his or her best interest The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 8
Powers of Attorney You CAN engage in the following, under a power of attorney, if the document provides : (1) To execute, amend or revoke any trust; (2) To fund with the principal’s assets any trust not created by the principal; (3) To make or revoke a gifu of the principal’s property; (4) To disclaim a gifu or devise of property to or for the benefit of the principal; (5) To create or change survivorship interests in the principal’s property or in property in which the principal may have an interest; provided, however, that the inclusion of the authority set out in this subdivision shall not be necessary in order to grant to an attorney in fact acting under a power of attorney granting general powers with respect to all lawful subjects and purposes the authority to withdraw funds or other property from any account, contract or other similar arrangement held in the names of the principal and one or more other persons with any financial institution, brokerage company or other depository to the same extent that the principal would be authorized to do if the principal were present, not disabled or incapacitated, and seeking to act in the principal’s own behalf; The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 9
Powers of Attorney You CAN engage in the following, under a power of attorney, if the document provides : (6) To designate or change the designation of beneficiaries to receive any property, benefit or contract right on the principal’s death; (7) To give or withhold consent to an autopsy or postmortem examination; (8) To make an anatomical gifu of, or prohibit an anatomical gifu of, all or part of the principal’s body under the Revised Uniform Anatomical Gifu Act or to exercise the right of sepulcher over the principal’s body under section 194.119; (9) To nominate a guardian or conservator for the principal; and if so stated in the power of attorney, the attorney in fact may nominate himself as such; (10) To give consent to or prohibit any type of health care, medical care, treatment or procedure to the extent authorized by sections 404.800 to 404.865; (11) To designate one or more substitute or successor or additional attorneys in fact; or (12) To exercise, to revoke or amend the release of, or to contract to exercise or not to exercise, any power of appointment granted to the principal to the extent authorized under sections 456.970 to 456.1135. The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 10
Powers of Attorney No power of attorney, whether durable or not durable, and whether or not it delegates general powers, may delegate or grant power or authority to an attorney in fact to do or carry out any of the following actions for the principal: (1) To make, publish, declare, amend or revoke a will for the principal; (2) To make, execute, modify or revoke a living will declaration for the principal; (3) To require the principal, against his or her will, to take any action or to refrain from taking any action; or (4) To carry out any actions specifically forbidden by the principal while not under any disability or incapacity. The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 11
Durable Powers of Attorney – Financial The attorney-in-fact (AIF) has a duty to: • Act in the interest of the principal • Maintain contact with the principal • Communicate with the principal • Follow his or her wishes • Avoid self-dealing • Use a high degree of care Once the Durable Power of Attorney is signed, the attorney-in-fact has a fiduciary relationship and obligation to the principal. The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 12
Durable Powers of Attorney – Financial (cont’d) Powers include: • Manage property and business afgairs • Apply for government benefits • Manage all bank accounts • Hire an attorney • Enter into a contract The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 13
Durable Powers of Attorney – Financial (cont’d) • Survives the incapacity of the principal • Efgective as soon as the principal signs • Not valid where it is later determined that the person lacked the mental capacity to execute • Survives death only with right of sepulcher provision • Efgective tool used to prevent guardianship m Attorney-in-fact can make financial decisions m Prevents state/court involvement The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 14
Types of Financial Powers of Attorney Springing Power of Attorney: This type of power of attorney is efgective only when the principal is incapacitated or when some other stipulated event or condition occurs, thus “springing” the power of attorney into action. These documents require 1-2 physician certifications . Non-Springing Power of Attorney: This type of power of attorney is efgective immediately upon execution of the document and remains efgective in the event of the principal’s disability or incapacity. The Elder & Disability Advocacy Firm of Christine A. Alsop, LLC | 15
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