Finding an Attorney to Help with Estate Planning
By: Dementia Today - November 14, 2016
Before you or a loved one is faced with a life limiting illness or cognitive impairment, it is important to have completed the legal paperwork necessary for estate planning. Unfortunately, this often not the case, and family is trying to get the necessary legal documents completed under difficult circumstances, such as cognitive impairment, where someone is no longer able to manage his/her affairs or a medical crisis.
When seeking legal advice, finding a knowledgeable, competent attorney is extremely important. You want someone with whom you feel comfortable and who has the expertise to advise you on these matters. Consult an attorney as early as possible–the maximum number of planning options will be available while you or your loved one still has the legal capacity to make your own decisions. The question of capacity is a gray area and is determined on a case by case basis by the attorney.
Why Do You Need an Attorney?
There are several legal issues to consider when a person is or may become incapacitated:
- Options for paying for long term care
- Arranging for payment of long term health care: private insurance, Medicare,
- Medicaid (Medi-Cal in California), Supplemental Security Income (SSI)
- Management of financial affairs during lifetime, ability to pay bills for another
- Preserving family assets—ensuring spouse or disabled family members are
- protected (see Spousal Impoverishment Law in glossary)
- Wills, revocable living trusts, joint tenancy accounts, payable on death accounts, transfers with a retained life estate
- Management of personal care and medical decisions
- Housing options—staying at home, can it be done physically and financially. Out of home placement choices, e.g. assisted living or nursing home
- Distribution of assets upon death
Locating an Attorney
- Personal recommendation from friend, relative, co-worker, others in a support group or disease specific organization, another attorney whom you trust
- Senior legal services, provided by your local Area Agency on Aging
- Legal Aid in your county
- Attorney Referral Service in your area or your local Bar Association
- CANHR Legal Referral Service
Check qualifications and experience; compare fees; ask about familiarity with laws in your state for issues you are dealing with.
Types of Attorneys
Most attorneys concentrate on one or two areas of law. In planning for incapacity, you would ask for an “elder law” attorney or an “estate planning” attorney. It is important for the family caregiver to find an attorney who has the appropriate expertise. Attorneys advising caregivers on planning for long term care should have knowledge of the following areas of law:
- Medicaid (Medi-Cal in California), SSI (Supplemental Security Income), IHSS (In Home Supportive Services) Attorneys who specialize in Medicaid eligibility for nursing home care can help with converting non exempt assets into exempt assets, transfer of the family residence to a spouse, transfer of the principal residence with the retention of a life estate, use of court orders to increase the amount of resources and/or income the spouse of a nursing home resident can retain.
- Social Security, designation of a representative payee
- Trusts (including revocable and irrevocable living trusts and special needs trusts)
- Conservatorship of estate or person
- Durable powers of attorney for health care and asset management (finances)
- Tax planning—income tax, estate tax, gifting, probate
- Housing and health care contracts/long term care insurance
- Elder law
- Veteran’s Benefits
What to Bring to a Consultation
- List of major assets—real estate, stocks, cash, jewelry, insurance, investments
- Any documents of title—copies of deeds, stock certificates, loan papers
- Contracts or other legally binding documents
- Lists of all major debts
- Existing wills or durable powers of attorney for health care or finance
- Bank statements, passbooks, CDs
- Income—social security, pensions, IRAs, etc.
Article source: Dementia Today