Elder Law and Guardianships – FAQ

What is Elder law?

Elder law is a field of law that encompasses issues that face our aging population. Just a few of the issues that our aging population deals with are the preservation and transfer of assets so that a surviving spouse is not left impoverished, disability and estate planning (including wills, powers of attorney, and trusts), housing issues, nursing home issues, and elder abuse.

My parent was just diagnosed with a progressive disease (such as Alzheimer’s). How do we (the children) help protect our parent’s assets?

How much you can protect depends on a number of things, such as whether or not there is a living spouse and how far ahead planning began. Each individual situation is different, and we can help walk you through this difficult process.

What happens when both spouses must enter a nursing home at the same time?

In addition to the emotional hardship that the family may endure, the immediate thing that will be seen is an eye-popping bill from the nursing home for probably $12,000 or more per month for the cost of their care. Assets would be quickly spent down until basically nothing was left, and then the couple would be on government assistance for the remainder of their care. This example is just another reason that people should plan early for life’s unexpected events.

How soon do I need to contact Elder Law Firm for help?

The earlier the planning process can begin, the better it will be for your family. If you start planning before your loved one needs to be in a nursing home, for example, you can better maximize your savings to help pay for the services.

What is a guardianship or conservatorship?

A guardianship is the court appointment of an individual to provide care and to make decisions for an incapacitated person or a minor child. 

A conservatorship is a court appointment of an individual with trustee powers to manage the finances of a person who cannot manage his/ her own property or financial matters without assistance.

How does a guardianship end and can a person obtain back their rights?

Adult guardianship is a legal procedure in which a court determines that a person needs the assistance of another trusted person to make certain decisions.  Most often, a person would need a guardian because of some mental or other disabling condition, which causes him/her to be unable to care for him/herself or make special arrangements necessary to meet his/her physical needs, such as food, clothing, and required medication.

Guardianships can be of the person and/or of the estate/property, which is known as conservatorship.  A court appointed guardian may make decisions for another person such as where they may live and what medical treatment they may need.  A conservator may do such things as opening and managing a bank account, paying bills or other debt, or purchasing or selling property.

Once a guardianship is in place, when and how does it end?  It may end when the ward dies.  Or, a guardian may resign or may no longer be able to handle the responsibilities, and someone else may be appointed by the court to take over those duties.  But, if the ward is alive and seems to have recovered from their incapacity, how do they get back their independence?  The ward can petition the court, usually with the assistance of a qualified attorney, to modify or terminate the guardianship/conservatorship and restore their rights.  It can be a time-consuming, stressful, complicated, and expensive process.

We want to plan ahead for Medicaid for our aging parent.  Is there a way for our parents to leave some inheritance to their children and still be eligible for Medicaid? 

 

A Single Premium Whole Life Insurance (SPWL) policy may be right for you or your loved one.  This policy is designed for those who have excess assets, or money set aside, so that something can be passed on to their heirs.  There is simplified underwriting (choose an insurance company with an "excellent" rating from A.M. Best) with just a few questions.  You would complete the insurance application and provide a check for the premium and, once approved, the insurance company can provide you with a letter stating that the policy has either a zero or minimal cash value.  You are not required to list the state Medicaid as a beneficiary so it is an excellent technique to help preserve assets for intended heirs or beneficiaries.  Shelley Elder can discuss your options with you and recommend insurance companies that may be able to assist you.