For more information about the author, click to view their website: Kelly L. Fayer, P.A.
What Are Elder Law and Special Needs Planning?Elder law and special needs planning involve preparing for expected and unexpected life circumstances, including the possibility of becoming incapacitated as well as protecting and providing for future needs of loved ones with disabilities.At its core, Elder Law focuses on the unique needs of older persons and practice areas that address issues of concern for aging adults, adults with disabilities/incapacity, their families and caregivers. Unlike traditional estate planning, Elder Law begins by assisting you with issues associated with a long and healthy life, rather than simply planning for death. It mixes legal and practical issues such as being able to continue residing in your home if you had a chronic condition, having someone help in managing your finances, and not becoming a victim of financial abuse in the process. Elder law endeavors to help you solve the problem of not knowing what you dont know.Special Needs Law focuses on solving legal problems for individuals with special needs and their caregivers. Although there is no uniform definition of special needs, the phrase describes individuals with a wide variety of physical or mental conditions who require assistance with personal care needs, activities of daily living, paying bills, managing finances, etc., who may be vulnerable to and need protection from exploitation or abuse, and who may need access to public benefits or any number of other types of assistance. If you currently provide care for a child or loved one with special needs (such as mental or physical disabilities), you must have contemplated what may happen to him or her when you are no longer able to serve as the caregiver. Frequently, parents and grandparents are concerned about how their children and grandchildren will be cared for after the parents or grandparents deaths and want to plan in advance to protect their special needs loved one. Elder Law and Special Needs Planning encompass many different fields of law, including, for example: Disability planning, durable powers of attorney, living trusts, advance directives, other tools to delegate management and decision-making to another in case of incompetency or incapacity Estate planning, including the management of finances and assets during life and disposition on death using trusts, wills, and other instruments Special/Supplemental Needs Trusts Conservatorships and guardianships Long-term care planning and placements Trust and probate/estate administration Elder abuse and financial exploitation Medicaid planning Retirement and Social Security planningWhen each day seems to present a new challenge, thinking about the future can be overwhelming. A plan can help break things down into achievable pieces. No matter what age or stage, it is getting started that counts.This article is for informational purposes only and is not intended to be legal advice.This article was submitted by Ashley Day, Esq., A Day Law, LLC. Reach her at 251-277-3377.
Lets chat about Powers of Attorney. While the information contained in this post might be applicable to you, it might also be applicable to your elderly relatives, so, read this with them in mind.You may be asking yourself (i) what is a Power of Attorney, and (ii) why would I need it? A Power of Attorney is a document that gives a person authority to act on your behalf, thus becoming your Attorney-in-Fact. The Power of Attorney document can be very specific or very broad. You can give your Attorney-in-Fact the power to handle your bank accounts, sell your real property, run your business or apply for public benefits. Or you can give them the specific power to sell one piece of property.Why do you need one? Because its a simple tool that allows your Attorney-in-Fact to handle your financial matters without entering into more complicated agreements, like a Trust. The Power of Attorney helps eliminate the need for a guardian or conservator. You should pick someone you trust to hold the legal authority to make decisions should you experience an unforeseen event like a stroke or car accident.There are four types of Powers of Attorney: A General Power of Attorney: allows the Attorney-in-Fact to act as you in dealing with financial accounts and managing personal finances. However, it is terminated upon your incapacitation. It can also be revoked. A Durable Power of Attorney: allows the Attorney-in-Fact to act on your behalf and includes a durability clause that keeps the Power of Attorney in place after you become incapacitated. A Special or Limited Power of Attorney: this is when you have given the Attorney-in-Fact very specific powers which limit their authority and responsibility.A Springing Durable Power of Attorney: this only becomes effective upon your incapacitation. In Utah, a Power of Attorney is considered durable unless it expressly states that it terminates upon your incapacitation. As is so whenever you write a legal document, you have choices to make. So, you need to be clear about what you truly want your Power of Attorney to do for you. Some additional important points about Powers of Attorney are:The power must be given, it is not something you can obtain over someone on your own.In order to create one, you must have the legal capacity to understand the authority that you are assigning to someone.The Attorney-in-Fact only has the authority to do those things that are designated in the document.The appointed person must make decisions the way you want. They cannot follow their own desires when representing you.Once again, while you could certainly benefit from a Power of Attorney, there might be someone in your life who needs one right now. Whether you would like to have a Power of Attorney ready for use in the future, or whether you have a loved one who could benefit from one right now, call us today to set up your free consultation.
Many people believe that having a Will is all they need, and they dont need an estate plan. Over the years we have worked with many families who only had a Will, and no provisions for needing care in a nursing home. As a result, the healthy spouses financial security was neglected and the family went broke.Many of my clients who want to protect assets from long term care costs, own their houses in an asset protection trust. These are the top 6 reasons why our clients decide to use this trustWhile Your Parents Or Grandparents Didnt Have An Asset Protection Trust, They Didnt Often Need Long Term Care. They likely had family members nearby caring for them.Statistically speaking, your odds of needing long term care are increasing. Estimates point to two out of three people who will need long term care in nursing homes in their 80s. Nursing homes currently cost $15,000 a month, and they will cost even more 20 years from now. Asset protection is important, to avoid losing everything to long term care costs.Estate Planning Is Not Just About Answering The Question Of Who Gets Your Stuff When You Pass Away. Its also about planning for what happens if you get really sick. Weve all been paying into this government system with the promise that when we turn 65, we will have healthcare. Unfortunately Medicare doesnt pay for the single biggest health care expense that seniors face, which is custodial long term care in a nursing home.If your health issue is acute, such as a heart attack, or you need surgery, or have cancer, and require acute care in hospital, Medicare will cover the costs of treatment. Whether my spouse and I are financially secure in our retirement years, depends on the healthcare issue either of us will have. This is often beyond our control, but what we can do is to prepare for all eventualities, by protecting our house with a trust. Medicaid Is The Only Government Payment Source For Long Term Care, But The Rules Are Broken. If youre a single person going to a nursing home, youre allowed to own up to $8,000 of assets, a house and car. A couple with $100,000 in a retirement account, must spend that money on care in the nursing home. Once the money is gone you can apply for Medicaid benefits. However, your monthly income is used to pay for care, and you are only allowed to keep $45 a month for all your personal needs. We have a situation where seniors are going broke before they get Medicaid benefits. Theyre allowed to own a house but if they have no money, they cannot pay property taxes, utility bills or maintenance costs.Assuming your child is a power of attorney, they may sell your house to avoid paying the taxes and bills. However, this means you will now have cash which will result in you losing your Medicaid benefits. Not only do you lose your house, but you will need to spend the money on care. When you are broke, you are eligible for Medicaid benefits again. It is not obvious in the Medicaid rules that you will lose the house. The problem is that it becomes financially impossible to keep the house. Putting your house in a trust will protect it from being lost to Nursing home costs.If The House Is Left To Your Child In Your Will, By Paying The Taxes And Keeping The House, Does Not Guarantee That They Wont Lose The House. When somebody who passes away was on Medicaid, the executor is forced to sell the house. The proceeds are used to pay the state for the care the senior received in the nursing home. This is known as the Estate Recovery Program, and the claim in Pennsylvania is limited to someones probate estate. This means that if the assets go through the Will, it will be a probate case, and the state will have a claim against the house.If your house is in the asset protection trust when you pass away, the state cant get your house while its in the trust. Your kids will inherit the house if you go to a nursing home, or you pass away.Your Kids Will Receive Their Inheritance Faster If Your House In An Asset Protection Trust.We dont have to wait 12 months to make the distribution of the inheritance to the children. The distribution process usually happens after four to five months. This is because we dont have to pay creditors. Usually, in probate cases, creditors can make a claim a year after the person has passed away. Once the creditors are paid, distributions are made to the heirs.When Your House Is In An Asset Protection Trust, The Only Thing You Would Have To Give Up Is Having Access To The Home Equity. However, if you have money in the bank, you wont need home equity. Giving up access to the equity, means the nursing home cant access it either. You have protected your house, so you wont lose it. If you or your spouse need long term care, the healthy spouse can still live at home.There are opportunities to protect yourself, and thats what we teach you at our Three Secrets Workshop. If you want to protect your assets, and you want the best plan for your family, we can help you! After attending our Three Secrets Workshop, most of our clients have participated in our Blueprint Workshop. As a result, many of our clients chose to work with us and put their houses into a trust.Register to attend one of our upcoming free workshops. Our workshops are offered various dates/times and locations throughout the Greater Pittsburgh Area, call 724-564-6615 to learn of upcoming Workshops and to register. We will teach you about the estate planning tools you can use to do some good planning.
Attorney Kelly L. Fayer grew up in Southwest Florida. She later moved to Tallahassee to attend Florida State University, where she graduated Magna Cum Laude. After graduating from Washington & Lee University, School of Law, in 1997, she moved back to Lee County beginning her legal career as a prosecutor. In 2006, after practicing law for a few years at a well-respected firm, she established Kelly L. Fayer, P.A. She has since been dedicated to provide members of Southwest Florida with quality services. She is a member of and holds a leadership position many organizations in the local area, including Vice President of the Lee County Bar Association, Treasurer of CAMEO of Lee County, and an Advisory Board Member for Impact Initiative. In addition, she volunteers as much as she could, with organizations such as PACE Center for Girls and Relay for Life.