What is Elder Law?
Elder law is an area of law that not only includes estate planning, but also covers all aspects of planning for aging, illness and incapacity. At McGinty & Belcher, our Elder law attorneys are particularly sensitive to the legal issues affecting our elder clients and their unique needs, including those related to competence and aging. We understand our client’s needs that go beyond basic legal services and are here to counsel, educate, and advocate for our clients.
For example, one of the greatest fears of older Americans is that they may end up in a nursing home. Going into a nursing home means a great loss of personal freedom, but also has tremendous financial cost. Nursing homes cost between $60,000 and $150,000 a year, depending on location and level of care. When planning an estate for our clients we take into consideration the health of the person or couple, the potential for nursing home care and the wishes and concerns of the person or couple if that event were to occur. We work hard to help our clients preserve their independence, and their resources.
You should consider an elder law attorney for help with…
Health and personal care planning, which include the following topics: powers of attorney and advance directives for health care; lifetime planning; family issues;
- Planning for a well spouse when the other spouse is disabled, incapacitated or diagnosed with a disability for Medicaid planning and special needs trust planning;
- Asset protection; public benefits such as Medicaid and insurance; and Veterans’ benefits, including Aid & Attendance;
- Capacity; guardianship and conservatorship proceedings; and guardianship and conservatorship avoidance;
- Will and trust planning; planning for a minor or adult special needs children;
- You or your loved one need to prepare an estate plan.
For more information see the Elder Law Key Terms below or contact us and schedule your free consultation.
Is your loved one facing a long-term care stay? Do they need to qualify for financial assistance to pay for their long-term stay? The decision to move a family member or a loved one into a facility is one of the most difficult decisions you can make. With the national average cost of nursing home care at $75,000 per year, for many, the most difficult task is determining how to pay for it without going broke!
Medicaid is a joint Federal and State health care program, administered by the state, that helps pay for medical services for certain eligible individuals. However, understanding the process of qualifying for Medicaid can be an exhausting ordeal. The Medicaid rules and regulations change frequently and are complicated to say the least! One of the primary concerns we hear from families is that they are afraid that qualifying for Medicaid will leave them virtually penniless.
We help families understand, manage and prepare for a long-term illness and navigate the complex area of Medicaid.
Some of the questions we answer from worried families just like you are:
- Will I lose my home?
- Can I keep any of my income?
- Is it possible to reduce (or even eliminate) my nursing home bills?
- My loved one is already in a long term care facility. Is it too late to qualify for benefits?
Medicaid Planning Myths
So many times clients come to our office under the mistaken impression that there is nothing that can be done to protect assets from long term care costs. Fortunately much of the circulating consumer knowledge is false or misinterpreted. For example, it isn’t always necessary to wait 5 years after gifting assets to become eligible for Medicaid. The answer actually depends upon the specific facts of your case. With the help of our experienced Elder Law attorneys, many of the assets you have spent a lifetime accumulating can be protected from high long term care expenses.
Medicaid Asset Protection Strategies
Although with the recent passage of the Deficit Reduction Act, increased restrictions affect the use of some techniques, other asset protection strategies remain viable, especially for married couples where one spouse requires long-term care. Some of these techniques may include setting up an Irrevocable Living Trust, making gifts to family members, and paying for certain Medicaid expenses.
Whether you are facing long-term care issues yourself or you have a family member who is, we encourage you to call and schedule an appointment with one of our experienced Elder Law attorneys who will help you navigate the complex Medicaid system and avoid making costly and devastating mistakes.
Your loved ones deserve the best elder care available. Our firm is here to protect you and those you love and help you understand elder law and Medicaid eligibility. Contact us today and schedule an appointment with one of our experienced Elder Law Attorneys.
Visit our Elder Care Law FAQ section for additional information.
Estate planning involves helping people prepare for the control and disbursement of their estates.
What is Estate Planning?
Estate planning involves helping people prepare for the control and disbursement of their estates. Depending on what and how much you own when you die, your estate may have to pay estate taxes before your assets can be distributed to your heirs. Federal estate taxes are expensive – currently up to 47% of the estate and possibly up to 55% by 2011. Proper estate planning can substantially reduce taxes or even eliminate them altogether.
Other estate planning issues, however, may be even more important for you than paying taxes, particularly if you have a spouse or children. Issues such as: Who will take care of your children if you die or become incapacitated? Who will make medical and financial decisions for you if you become incapacitated? Who will make the decision to keep you on life support if you decline into a permanent vegetative state? These decisions will be made by a court, possibly contrary to what you may have wanted, unless you have prepared the necessary documents in advance.
A good estate plan can preserve your family’s legacy by protecting assets you want left to your children and grandchildren from creditors and predators. In some cases, a good estate plan can protect your children from themselves. At McGinty & Belcher we have the knowledge and tools to help you establish the estate plan that’s right for you.
Our firm is here to protect you and those you love. Contact us today and learn more about how we can help you make the most of your resources through long term planning for retirement, medical emergencies and the eventual transfer of assets to the next generation.
Using Trusts to Advance Your Goals for Your Family
You do not need to be wealthy to consider trusts as a way to achieve important estate planning goals for yourself, your spouse and your heirs. While trusts have always been an important tool for managing estate tax liability for affluent families, they can also make a difference for people concerned about the future management of a family business, the preservation of a family farm, protecting the eligibility of a senior citizen or special needs adult child for government benefits, and many other needs.
To learn how trusts can help you accomplish the estate planning objectives most important to you and your family, contact us and make an appointment with one of our experienced estate planning and elder law attorneys. We can advise you about such trust alternatives as the following:
- Testamentary trusts associated with wills
- Retirement planning trusts to help you maximize the benefit of your IRA’s, including the “stretch” feature
- Dynasty trusts to provide for children and grandchildren
- Living trusts to avoid probate and reduce your exposure to state or federal estate taxation
- Irrevocable life insurance trusts to provide for anticipated estate tax liability
- Medicaid asset protection trusts, especially for families who do not anticipate the need for Medicaid benefits for at least five years
- Veterans asset protection trusts
- Creditor protection trusts
- Charitable remainder trusts to benefit schools, foundations or religious organizations after your death
Our firm is here to protect you and those you love. Contact us today, we can help you identify your estate planning goals and explain the trust instruments that might make the best sense for your situation and objectives.
The Advantages of a Will
Finally, a Will allows you to appoint a personal representative to manage your estate and to appoint a guardian or conservator to take care of your minor children and handle their inheritance until they become adults.
Who can make a will?
Appointing a guardian
Preparing your will with a lawyer
The disadvantages of dying without a will
Without a Will, you also lose the opportunity to select a guardian for your minor children. If you have children under 18, the court may appoint a guardian or conservator to take care of the children and to hold property for the children. This court appointed guardian or conservator may not be the family member or friend that you would have chosen to take care of your children.
Appointing a personal representative
Special Care Pensions for Wartime Veterans
Housebound Pension and Aid & Attendance
While many people are unaware it exists, the Veterans Administration non-service connected pension program provides monetary assistance to wartime veterans B and surviving spouses of deceased veterans B who are disabled and are housebound or need regular personal assistance in their daily environment. If the veteran qualifies, pension benefits are provided in addition to monthly pension and Social Security benefits. In order to take advantage of all the possible benefits available and insure that the many complex, related variables are looked after, it is important to seek the guidance of an experienced attorney who is accredited by the Department of Veterans Affairs and who is also familiar with estate planning, disability, and Medicaid benefits. The attorneys at McGinty, Belcher & are all accredited by the VA and our office is also experienced in estate planning, disability and Elder Law and Medicaid benefits. We provide our clients and their families requiring assistance in this area with information that will help them receive the benefits they are entitled to and get the best possible care for their loved one. We help you decide if it is appropriate to apply for VA benefits and coordinate the application with any estate planning and Medicaid planning and eligibility, that needs to be taken. Your loved ones deserve the best care available. Our firm is here to protect you and those you love. Contact us today and schedule an appointment with one of our experienced accredited VA and Elder Law Attorneys or sign up now for our free report entitled “AVA Aid & Attendance Requirements” by signing up for our newsletter below. We will send you free information about qualifying for VA pension benefits.
Special Needs Trust
In a third-party special needs trust the source of the trust assets could be a gift, an inheritance or an insurance settlement. People of any age whose physical or mental disability prevents them from earning a living may qualify for government benefits programs of various kinds, with SSI and Medicaid the most common. Because these programs are based on need, it is essential that gifts or bequests be carefully planned so as not to interfere with the beneficiary’s eligibility for government benefits. A special needs trust avoids these problems by making sure that the property is managed and controlled by a trustee rather than the beneficiary. The terms of the trust can be drawn with the eligibility conditions of a given government program in mind, and thus ensure that eligibility will not be disturbed. The spendthrift trust operates much like a special needs trust, but addresses the situation where the beneficiary who might otherwise inherit a substantial sum lacks the judgment or practical ability to use the assets responsibly.
In some cases, the beneficiary’s youth or inexperience might make a trust created for a person age 25 or 30 advisable. In other cases, a history of substance abuse or emotional problems might indicate the need for a trust. Our firm is here to protect you and those you love. Contact us today and learn more about our ability to address and resolve your estate planning needs using special needs trusts.
Guardianship & Conservatorship Proceedings
We are familiar with the range of circumstances that can lead a family to consider guardianship or conservatorship as a way to protect a loved one with declining judgment or cognitive faculties. We can assist with petitioning the court to appoint you or another person as a guardian who assumes responsibility for an incompetent ward’s personal care, financial affairs or both. Because of the relative expense and administrative burdens of a formal guardianship and conservatorship, we will first work with you to see whether the goals of a guardianship or conservatorship can be accomplished by less restrictive means. We will also work with your family to defuse any potential problems between groups who support a guardianship and conservatorship and those who oppose it.
Additionally, we work with guardians and conservators who have questions about the proper discharge of their fiduciary duties, as well as with family members who are concerned about the performance of the guardian and conservator who has been appointed in their case. Our firm is here to protect you and those you love. Contact us today for experienced and compassionate advice about your situation.
Income Cap Trust
There are many other ways to protect assets without using a trust, such as putting assets in a spouse’s name. For example, a wife who is not considered “at risk” could hold assets for a physician, CPA, or an attorney.
The technique could also be as simple as using qualified plan assets, such as a 401(k) and a profit sharing plan, which are exempt from bankruptcy proceedings.
Even an IRA is exempt from a bankruptcy proceeding for an account balance up to $1,000,000.
Asset protection also deals with protecting your family assets from the cost of long-term nursing home care. Revocable Medicaid trusts, VA asset protection trusts, commercial and private annuities may be utilized to protect your assets from the cost of long-term care. This type of asset protection is typically part of our long term care planning services. We explain methods by which you can legally preserve your assets and still qualify for Medicaid and Veterans benefits.
Advance Directive for Health Care
Unfortunately, it is fact of life that at any moment a health crisis could leave us incapacitated, without the ability to communicate our desires to loved ones, doctors, or other officials. The Advance Directive allows a trusted person, often a family member, to make medical decisions on an incapacitated person’s behalf. Without such a document in place it would be necessary for an interested person to petition the court to appoint a Guardian over the incapacitated person. Oregon Guardianships are time consuming, costly, and stressful. And, because other interested parties can contest the appointment of a particular person as the Guardian, such appointments are often contentious. Everyone over the age of 18 should have an Advance Directive for Health Care.
Any capable person over the age of 18 can make an Advance Directive. This can be done at any time but is often done as part of the estate planning process. Once signed, the Advance Directive is valid until you die or until you revoke it. Your Advance Directive can be revoked at any time as long as you have capacity to do so.
Oregon has a specific statutory Advance Directive form for appointing a health care representative and making medical decisions. You can obtain this statutory form from many health care facilities, including your doctor’s office or hospital, and other organizations. While you do not need an attorney to complete the Advance Directive form, it can be helpful to have one of our experienced Elder Law attorneys explain the Advance Directive and discuss various options for completing the form. There is no charge for having us assist you in completing the Advance Directive when done as part of your overall estate planning.
Having an Advance Directive and having a meaningful discussion with your doctor and family about your health care wishes and end of life decisions is the best strategy to making sure that your wishes are carried out.
Protecting the Family Estate
You have worked hard for the money you’ve earned and assets you own, and now is the time to properly safeguard and protect those assets from any unfortunate events that may befall you in the future. Please take a minute to explore our site and the various techniques available to you to protect your assets and then contact us to arrange an appointment regarding your particular asset protection planning needs. We are here to protect you and those you love.
Power of Attorney
When a person (the principal) signs a power-of-attorney, he gives another person (the agent) the power to act in his place and on his behalf in managing his assets and affairs. This person is known as your “agent” or your “attorney-in-fact.”
A power-of-attorney can be either a “general” power-of-attorney, where the agent may perform almost any act the principal might have performed himself regarding the financial management of his affairs, or a “limited” power-of-attorney where the agent has one or more specific powers, such as the power to sell a particular property to a particular purchaser at a particular time. The power you give your agent can be as wide or as narrow as you desire. It is important to discuss with your attorney what powers you wish to confer on your agent. An experienced Elder Law attorney understands and can advise you about what powers are necessary for asset management and long term care planning, especially when managing the assets of a seriously ill or disabled person.
A durable power of attorney simply means that the power of attorney survives incapacity allowing the agent to continue to act your behalf even if you lose capacity. The great advantage of the durable power-of-attorney is that, if the principal becomes incapacitated, the agent can act immediately to manage his assets. Too often we see the situation where a person fails to plan for incapacity and the incapacitated person’s spouse or family member has to initiate a conservatorship proceedings to obtain the court’s authorization to manage the incapacitated person’s affairs. The conservatorship process is costly, time consuming, and can often be contentious
A well drafted, Durable Power of Attorney is an essential part of any estate plan. Allow our experienced Elder Law attorneys to assist you with your estate planning needs.
At McGinty & Belcher Attorneys, we strive to ensure that the estate administration process, also known as probate, is as easy as possible for the representative, as well as the beneficiaries.
Despite the sense of loss and grief that you are feeling, if you are the representative of your loved ones estate, you have a legal duty to ensure that your loved one’s estate is administered according to Oregon law and in a timely matter.
What is probate & how is it initiated?
What takes place during the probate process?
A notice must also be published in the newspaper to ensure that any interested person may be given the opportunity to file any claim they may have against the deceased person’s estate. Once the personal representative has been appointed and notice has been given, the personal representative must fulfill his or her duties, including, but not limited to:
- Collecting, valuing and providing to the court an inventory of assets subject to probate (This includes keeping the court informed of any newly discovered assets or change assets)
- Properly determining if a creditor claim is valid and resolving valid claims
- Preparing and filing on time the final income tax return for the deceased, any outstanding tax returns and a fiduciary return, if necessary
- Preparation and filing of an accounting (This must be done annually, or until such time that the estate is ready for final distribution)
- Resolve potential disagreements among beneficiaries
Do you need an attorney?
If you are dealing with the loss of a loved one, allow our compassionate, experienced, and knowledgeable team to skillfully navigate you through the probate process. We are also here to assist you with your own estate planning and help you to avoid probate and the expense related to probate. Contact our office today and schedule your free initial consultation.
How much does probate cost?
- Living Will
- Power of Attorney for Health Care
- Advance Directive for Health Care
- Health Care Representative
- Durable Power of Attorney
- Agent or Attorney-in-Fact
- Hospital insurance (Part A)
- Medical insurance (Part B)
- Medicare Advantage (Part C)
- Prescription drug coverage (Part D)