The legal practice area known as “elder law” has grown to meet the legal needs of the burgeoning number of seniors in our society. Elder law attorneys typically have their roots in estate planning and estate administration, but they have built and maintained the specialized knowledge required to address the increasingly complex legal issues facing senior clients and their families. Legal representation provided by our attorneys includes matters ranging from preparing pre-marital and marital agreements, filing petitions for court appointment as conservators and guardians for incapacitated adults, and developing strategies to facilitate eligibility for Medicaid benefits for payment of long-term health care costs.
Guardianship & 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 be appointed to both roles. The petition itself must state the personal and financial background of the person alleged to be incapacitated. A recent medical evaluation report is required to support the allegations of incapacity. A report prepared by a guardian ad litem appointed by the court serves as an independent confirmation of the circumstances set forth in the petition. Once appointed, there are reporting requirements imposed by statute upon each fiduciary to provide a measure of supervision and accountability. Our attorneys serve as counsel to petitioner clients, as well as in the role of conservator where requested, and our paralegals assist with fiduciary accountings as with probate estates.
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 goal is to explore the applicant’s family and financial circumstances and develop optional strategies for preserving assets and income while establishing or maintaining eligibility for applicable government benefits.
Special Needs Trust Planning
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), and the permissible distribution terms for each will vary significantly.
Pre-Marital & 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 without concern for spousal claims which could be made after their death. Before marriage, the Pre-marital Agreement is the most common legal instrument used to address these issues. After the marriage ceremony, the couple may still enter into a Marital Agreement in order to limit spousal rights and claims or to amend an existing agreement to modify those limitations. In order to be effective, the agreement must include specific provisions and full disclosure of each spouse’s resources and each spouse must be represented by separate legal counsel. Our attorneys are well-versed in the rights of surviving spouses and strive to counsel our clients with sensitivity to the delicate balance encountered in these negotiations.