The legal practice area known as “elder law” has grown to meet the needs of the burgeoning senior population. Elder law attorneys have the specialized knowledge required to address the increasingly complex legal issues facing aging clients and their families. The more common issues involve eligibility for Medicaid long-term care benefits, special needs trusts for ill spouses, pre-marital and marital agreements for later-in-life unions, and petitions for appointment of a conservator and/or guardian for an incapacitated adult.
MEDICAID ELIGIBILITY PLANNING
Elder law attorneys routinely provide legal advice regarding the preservation of assets in the face of impending long-term health care expenses for a loved one. Attorney involvement can range from an office consultation on the available options under Medicaid asset transfer rules to active representation before an administrative hearing officer or a court to rectify an erroneous denial of Medicaid benefits. Our process explores the applicant’s family and financial circumstances to develop strategies for preserving assets and income while establishing or maintaining eligibility for applicable government benefits.
SPECIAL NEEDS TRUSTS
A special needs trust is an asset preservation trust designed to provide for the quality of life of a beneficiary who is or will be receiving government aid, while preserving those trust funds from the typical “spend-down” requirements. Federal and state laws require compliance with very technical rules if such a trust is to achieve the purpose intended, so the planning process requires careful analysis in order to prevent the inadvertent loss of eligibility for benefits. Special needs trusts may be created by a third party (such as a parent or grandparent) or by the disabled person (usually through a legal representative or the courts).
GUARDIANSHIP AND CONSERVATORSHIP
A guardian is a person appointed by the court to handle personal matters of the person adjudged to be incapacitated, while a conservator is one appointed to manage their financial affairs. More often than not, the same person will petition to be appointed to both roles. The petition states the personal and financial background of the person alleged to be incapacitated, and it must include a recent medical evaluation report to provide the court with evidence of the alleged incapacity. A guardian ad litem (GAL) will be appointed at the outset to investigate the circumstances and file a report with the court, providing independent confirmation of the allegations. As counsel to petitioners, we prepare the pleadings, secure the medical evaluation, coordinate with the GAL, and present the case to the court for appointment. Thereafter, we often assist with the statutory reporting requirements imposed upon conservators and guardians to ensure accountability.
CONTESTED GUARDIANSHIP / CONSERVATORSHIP PETITIONS
Some of these petitions are contested, such as when two individuals compete for the appointment or when one seeks to remove and replace another already appointed who is breaching his duties to the incapacitated person. The client could also be the person who is alleged to be incapacitated and wishes to challenge the allegations and the attempt to take control over her financial and health care decisions. Coming from the perspective of elder law attorneys with litigation experience, we believe that we are uniquely situated to serve clients with both confidence and compassion.
FINANCIAL EXPLOITATION (PREVENTION AND RESOLUTION)
Many in our elderly population are vulnerable to financial exploitation, whether at the hands of a trusted family member or an outsider who gains unauthorized access to their bank or investment accounts. While some instances are resolved with a report to law enforcement or an agency such as Adult Protective Services, circumstances often require private legal counsel to investigate the extent of the financial abuse and to employ civil proceedings to recover the funds. These regrettable abuses of vulnerable seniors has drawn the attention of the Virginia General Assembly, resulting in legislation designed to provide both civil remedies and criminal penalties for the exploitation of the vulnerable elderly.
PRE-MARITAL AND MARITAL AGREEMENTS
Many seniors with existing wealth are entering second or later marriages, and they often seek legal counsel to preserve that wealth for their own heirs. Among the concerns expressed, of course, is the potential for spousal share claims which could be made after death. Before the marriage, the Pre-marital Agreement is the most effective legal instrument for addressing these issues. After the marriage ceremony, couples may still enter into a marital agreement with the mutual intent to limit spousal rights and claims or to amend an existing pre-marital agreement to modify those limitations. The agreement must reflect full disclosure of each spouse’s resources and each spouse should be represented by their own legal counsel.