by Admin | Aug 23, 2010 | Advance Directive in Salem, OR, Wills
Question:
When should I update my Will?
Answer:
A Will should be reviewed at regular intervals and updated when the Will no longer meets your needs. A change in your family or a substantial change in assets should also cause a review and possible change of your Will. Some of the major changes to cause a Will review, and possible change, include: a) A death of a beneficiary; b) A change in family circumstances such as births, deaths, marriages, divorces; c) A change in your economic status; d) A change in Federal or State tax laws; e) A change in business venture; f) A move from one state to another; g) A change in the property that is intended to be distributed. In essence, anything that might effect how you want your property to pass to your heirs.
by Admin | Aug 23, 2010 | Elder Law
Question:
My grandfather is becoming increasingly forgetful and is having difficulty paying his bills and taking care of himself. Should I be considering a guardianship or conservatorship for him?
Answer:
Not necessarily. Guardianship or conservatorship is not needed in every case where a loved one requires financial management or personal care help. Oregon has strict standards that must be met in order to establish a guardianship or conservatorship. To determine if a guardianship or conservatorship is appropriate you should always contact an attorney. The attorney will review with you the standards that must be met to establish a guardianship or conservatorship and help you identify reasonable alternatives to a guardianship or conservatorship. You may discover that there are less restrictive alternatives for meeting your grandfather’s needs short of a legal guardianship or conservatorship.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR
Question:
Several years ago I transferred my house to my 4 children, keeping a “Life Estate” for myself. Since then, one of my children passed away. I now want to sell the house, but I was told that my deceased son’s estate would have to be probated before it can be sold. Is this true?
Answer:
Maybe. It depends on how the property is titled. If you transferred the property to your children, jointly, with right of survivorship, then your surviving children now own your deceased son’s interest in the property. However, if you transferred the property to your children as tenants-in-common, then your deceased son’s interest belongs to his estate and has to be probated. The probate process will legally transfer your son’s interest in the property to his beneficiaries in accordance with his Will. If he died without a Will, then his interest in the property will pass to his heirs at law, generally, his spouse if he has one, or to his children. Your son’s beneficiaries or legal heirs will then have the right to make a decision about what they want to do with the property, including whether or not they want to transfer their interest back to you so you can sell the house like you want.
Often, older people transfer their homes into the names of their children, sometimes reserving a life estate in the home. A life estate gives the person transferring the home the right to live in the home or rent it out during her lifetime, but she must continue to pay taxes, insurance, and upkeep on the house during that lifetime. The person to whom the home is transferred is referred to as the “remainder person” because he or she acquires full title to the property after the death of the person holding the life estate. Upon the death of the life estate holder, the property goes to the remainder person(s) automatically, without probate.
This attempt to avoid probate, is one of the many reasons a person may transfer his or her property to another. However, as with all legal transactions, there are advantages and disadvantages which should be carefully discussed with an attorney prior to taking action. One problem that should always be considered is the possibility of a remainder person dying before the life estate holder. As you have discovered, if a remainder person dies before the person with the life estate, things can get tricky and the outcome may not be what you would expect or want.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR
Question:
I have a Will leaving my property to my family and friends. I was wondering if I need to do anything with my IRA or will that money also be included in my Will?
Answer:
How your IRA assets are distributed depends on whether or not you have named a beneficiary on your IRA account. If you named a beneficiary when establishing your IRA, that designation normally controls who receives your IRA assets. The custodian of your IRA account will distribute your assets directly to your named beneficiary. If you did not designate a beneficiary, your IRA assets will go into your estate and be distributed in accordance with your Will. This will require that those assets also go through probate before distribution.
You should review all IRA’s, life insurance policies, and estate planning documents periodically, to ensure that they are up to date and meet your current needs. Taking the time now to review and update these documents can save you and your beneficiaries both time and money in the future.
by Admin | Aug 23, 2010 | Elder Law
Question:
My grandfather has been diagnosed with Alzheimer’s Disease. I am trying to help him with his affairs. I have a Power of Attorney for him but someone told me that I may need something else to make medical decisions for him. Is that right?
Answer:
A Power of Attorney will allow you to take care of necessary financial, banking, tax, legal, and other matters if your grandfather is unable to do so. In addition to the Power of Attorney your grandfather should also have an Advance Directive for Health Care. The Advance Directive allows a person to give health care instructions to his physician and to name a person (called a health care representative) to speak for him about medical treatment if he cannot speak for himself. To give a power of attorney or to appoint a health care representative, the person making the appointment must understand what he or she is doing. Once a person loses capacity, it is too late for that person to give someone a power of attorney or to appoint a health care representative. At that point, a conservator or a guardian can be appointed by the court if there is a need. You should speak with an Elder Law attorney to help you understand the options available to you and your grandfather and determine which of those options fits your situation.
by Admin | Aug 23, 2010 | Advance Directive in Salem, OR
Question:
My husband, to whom I have been married for 15 years, died recently. We lived in my house that I had from before we were married. When he died he left some property, including a house, that was totally in his name. We both have children from prior marriages. He didn’t have a Will. Am I entitled to his property and the house?
Answer:
Maybe. Normally under Oregon law a surviving spouse takes the entire estate upon the death of the other spouse. However, when the decedent leaves children who are not children of the surviving spouse, those children have a right to a portion of the probate estate. As the surviving spouse, you are entitled to fifty percent of the probate estate. Your husband’s surviving descendants, which would mean his children, take the remaining fifty percent.
If your husband had left a Will, he could have protected his own children to the extent desired, and you would have known ahead of time which properties would have gone to them and which properties would go to you. He might have avoided probate altogether had he transferred the other property into joint ownership, or established a revocable living trust. If you and your husband’s children can not decide on who gets what, all of the property might have to be sold to ensure that each gets his or her proper share.
Unfortunately, too many people have neither a will or a trust which would identify their intent and desires after their death. They become so involved in their daily activities that they give little thought to what happens after they die. Families can be financially devastated and ripped apart by this procrastination.
by Admin | Aug 23, 2010 | Elder Law
Question:
My husband has recently been diagnosed with Alzheimer’s disease. He has become quite forgetful, but is still in the early stages. We both agree that we should put our affairs in order. The problem is that we don’t know where to start. Do you have any ideas for us?
Answer:
You and your husband face a very difficult situation. The best advice I can give is that you plan sooner rather than later. There are a number of things that you and your husband should be thinking about. I will address a couple of the most important.
First, your husband should execute a Durable Power of Attorney while he is sufficiently competent to do so. A Durable Power of Attorney appoints someone to act as his agent or attorney-in-fact, to take care of necessary financial, banking, tax, legal, and other matters if he is unable to do so. Executing a Power of Attorney now may save the need of going to court for a conservatorship in the future.
Second, your husband should complete an Advance Directive for Health Care. This is a legal document in which a person names a health care representative and can also state the type of health care treatment he wishes to receive if he can no longer make decisions himself. This again may save the need of going to court for a guardianship in the future.
You also need to consult an Elder Law attorney concerning your estate plans and long term care options. This would include advice regarding Medical Assistance Rules and payment for long term care costs should your husband require care in the future. You need a plan in place that provides for your husband’s care should you predecease him. At the same time, should you die before your husband, you would avoid having your joint estate pass to your husband directly if he is incapacitated.
by Admin | Aug 22, 2010 | Oregon Social Security Disability
Social Security Disability is a complex group of programs that provides financial and medical benefits for qualifying individuals who are unable to work before their normal retirement age.
WHAT PROGRAMS ARE AVAILABLE?
The main programs are:
* Adult Disabled Child (DC).
* Social Security Disability (SSDI).
* Supplemental Security Income (SSI).
* Widows and Widowers benefits.
WHAT DOES IT TAKE TO QUALIFY FOR THE DIFFERENT DISABILITY PROGRAMS?
Generally, the requirements for these programs are:
* Adult Disabled Child. (DC):
A deceased or disabled parent and proof of disability before the age of 22.
* Social Security Disability. (SSDI) Disability:
forty quarters of work, and disability beginning within five years of the qualifying work.
* Supplemental Security Income. (SSI) Disability:
resources of less than $3000 ($2000 for a single person) and no substantial income from other sources.
* Widows and Widowers.
Disability, the marriage lasting over two years and being over the age of 50.
ARE THERE ANY BENEFITS FOR MY CHILDREN?
Auxiliary benefits, now about $400 per month, may be available for your children. These benefits are not available with all of the disability programs. Additionally, child¬ren with severe physical or mental problems may be able to draw Supplemental Security Income on their own.
CAN I GET DISABILITY IF I AM STILL WORKING?
Generally, full time work precludes a finding of disability. Part-time work and work with wages below certain levels, about $800 per month in recent years, may still allow the person to obtain disability. A Supplemental Security Income recipient can also earn wages but the SSI benefit is reduced approximately one dollar for every two dollars earned.
DO I REALLY NEED A LAWYER TO GET MY BENEFITS?
The approval rate for disability suggests that the majority of applicants do not get disability when they first apply. In 2003, approximately 3’/2 million Americans applied for either Social Security Disability or Supplemental Security Income benefits. Almost 63% were denied benefits. Of those that appealed the denial, 85% were again denied benefits. However, over 60% of those who appealed to an Administrative Law Judge were granted disability benefits
(Source, Social Security Forum, February, 2004).
WHAT IF I CAN NOT AFFORD A LAWYER?
Maybe a better question is, “Can you afford not to have a lawyer?.” Remember, you have to win your case before you can receive any money from Social Security.
WHAT IF I DON’T HAVE ANY MONEY NOW?
You do not need to pay any money up front to a lawyer to help you. Social Security lawyers get paid on the “contingency” fee basis. This means the lawyer only gets paid for the time spent on your case if you are awarded disability benefits. The legal fee then is only 25% of the money that is owed to you from the date you are found disabled. A lawyer does not get any payment from your monthly benefit after he or she has won your case.
HOW SHOULD I PICK A LAWYER TO REPRESENT ME?
One thing to consider is how much time the lawyer spends on Social Security law. Generally, the more cases a lawyer does, the better he or she becomes in that area. Lawyers specializing in Social Security Disability typically do 50, 60 or more Social Security hearings each year.
I AM STILL NOT SURE. WHAT SHOULD I DO NOW?
Call a lawyer. Social Security lawyers will not charge you anything to discuss your case. There is simply too much at stake for you not to get the best help available. Your Social Security Disability payment, and your future financial wellbeing, depend on what you do now. Don’t gamble with your benefits.
by Admin | Aug 22, 2010 | Elder Law
An Income Cap Trust is a technique that is used to make a person “income” eligible for Medicaid by assigning that person’s income to the Trust. The Income Cap Trust does not require any advance planning, it is not a long range planning tool, and is typically used in a crisis situation when the person applying for Medicaid requires care.
Who can create an Income Cap Trust?
If the person applying for Medicaid benefits is too ill or disabled to sign a trust, his or her agent under a Durable Power of Attorney can create the trust. If the person is too disabled to understand that he or she is creating a trust, and has not appointed an agent to act as power of attorney, it
How do I establish the Income Cap Trust Account?
Once the trust is established, the next step is to create a bank account in the name of the trust. Only the income of the person receiving Medicaid (known as the trust “Beneficiary”) can be placed in the account. It may not contain any other resources.
How are the funds in the Income Cap Trust spent?
Complex federal and state rules govern how the income in the trust is to be spent. In Oregon, during the life of the Beneficiary, the income in the trust is used each month to pay the following expenses, in the following order of priority:
A. Personal Needs Allowance/ Maintenance Standard: A fixed amount to the Beneficiary for the Beneficiary’s personal needs plus, for people receiving in-home care or assisted living or foster home care, an amount for room and board, which may be payable to the care facility.
B. Administrative Costs: $50 per month to cover the administrative costs associated with the maintenance of the trust. These costs may include any bank service charges,
trustee fees, preparation of yearly tax returns, copy charges, postage, or tax preparer fees, and any income tax attributable to income placed into or generated by the trust.
C. Spouse and Family: A monthly support allowance for the spouse and family.
D. Health Insurance: The health insurance premium for the beneficiary and the beneficiary’s spouse.
E. Other Reserves: Other incurred medical care costs that are not reimbursed by a third party.
F. Patient Liability: Any remaining funds are paid to the facility. This is the amount of Beneficiary’s income to be paid toward his or her care.
When the beneficiary dies, any remaining funds in the Trust must be paid to the State.
What is the cost to create an Income Cap Trust?
Like most things, the amount of time and effort involved in setting up the Income Cap Trust will effect the cost. The cost can vary, especially if court time is involved to establish the trust or to have a conservator appointed. Also adding to the cost is the time the attorney spends drafting the trust and creating a distribution schedule that complies with the above mandatory distribution standards. Establishing an Income Cap Trust is not an inexpensive proposition. However, using a “cost versus benefit analysis,” even though the process involves an up-front cost, making the person eligible for benefits will repay the costs of establishing the trust in a very short period of time.
Where can I get more information or help with an Income Cap Trust?
An Elder Law Attorney or an attorney experienced in Medicaid can answer any questions you have and determine if this type of a trust is an option for you
by Admin | Aug 22, 2010 | Advance Directive in Salem, OR
What you should know about an Advanced Directive for health care
An advanced directive for health care is one of several important estate planning documents. It is a written legal document which allows you to appoint another person, called a “health care representative”, to make medical decisions for you if you are unable to make decisions for yourself. It also allows you to instruct your physician on whether or not you wish to be given life sustaining treatment, such as tube feeding.
Who can make an Advanced Directive?
Any capable person over the age of 18.
When should I get an Advance Directive?
An Advance Directive can be done at any time, but is often part of the estate planning process.
