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Law for Seniors & the Disabled
Life Care Planning and Elder Law
This web site information is intended to be a service to you in the area of the law for seniors and disabled persons, which includes a wide range of needs and services to older and disabled persons. The area of the law for seniors and disabled persons is some sometimes referred to as “elder law” or “life care planning.” Because planning and preparing for our senior years and/or when we are disabled is something in which each of us should be involved all our lives, it is appropriate to call it “life care planning.”
Elder law services that our law firm provides includes life care planing designed to allow people in their later years, and/or in the event of a disability, to optimize their control, enjoyment, and security of their estates. Life care planing is needed even in minimum size estates as well as in larger estates. The key to life care planning in to learn as much as possible about the laws, regulations, policies, and statutes effecting your particular situation, and to become familiar with the public and private services and suppliers, and the insurance available to assist you with the needs of your situation. The younger you start your life care planning the better off you are. You are never too young or too old to start life care planning. Let’s start now!
My Will and Probate
Your life care planing will include preparation of wills, trusts, guardianships, and probate proceedings designed to carry out your wishes and intentions with regard to your present quality of life, and the future distribution of your estate. Our law firm brochure is available at this presentation which provides information with regard to wills, trusts, and guardianships.
In addition to wills, trusts, and guardianships, you may consider the preparation and execution of other documents, which are sister documents to wills, as part of your life care planning. Sister documents include the following:
• Statutory Power of Attorney. A Power of Attorney gives another person the power to sign your name on your behalf to documents and contracts. A Power of Attorney may be effective as to a specific transaction or may be general for all transactions. A Durable Power of Attorney is not affected by the later and mental or physical incapacity of the grantor.
∙ Medical Power of Attorney. A Medical Power of Attorney gives another person the power to make medical decisions for you if you are unable to make those decisions for yourself.
∙ Directive to Physicians. If it is your desire to not be kept alive by artificial means when there is no reasonable medical expectation that you will recover, then, a Directive to Physicians will allow your family to remove you from the machines that artificially sustain life.
Other sister documents to consider:
• Declaration of Appointment of Guardian for Children in Event of Death.
• Special Durable Power of Attorney for Real Estate Transactions.
• Authorization to Consent to Treatment of Minor.
• Declaration for Mental Health Treatment.
• Declaration of Guardian in Event of Later Incapacity of Need of Guardian.
• Declaration of Appointment of Guardian for My Children in Event of Death or Incapacity.
• Out of Hospital Do Not Resuscitate Order.
Isn’t Probate expensive and Time Consuming?
∙ Texas law provides that a person making a will may name an independent executor in their will, which will allow the will to be probated with a minimum to time, expense, and inconvenience. After the will is admitted to probate, the independent executor may take all action necessary for the accumulation and proper distribution of the estate without the intervention of the court, greatly reducing the time and expense necessary to probate the will. With a properly drafted will that provides for an independent executor, probate proceedings in which the estate is left to the surviving spouse may be concluded in about 2 months, provided that the attorney is provided the necessary information concerning the assets of the estate.
What do I need to do if I have a large Estate to minimize the Death Tax?
• The federal death tax, or estate tax as it sometimes called begins to apply a tax to estates in excess of $2,000,000. Tax advice and counseling on an estate should begin when an estate reaches approximately $1,000,000, in anticipation of the estate increasing, and/or the level being lower at which estates are taxed.
Some important considerations in “Life Care Planning”
Planning for Assisted Care.
• Long Term Care Insurance.
• Medicare statistics tell us that for those people who enter a nursing home facility for end of life stay, the average time in such a facility is under 2 years.
• Planning for assistance with business/money matters.
• Business PofA given to child or other person to help with paying bills.
• Check with your primary hospital for their form of a “Living Will”.
Maximizing my Medicare Insurance.
• Part D Prescription Plan
• Plan for the Part D doughnut hole expenses.
• Medicare “Opt-Out” Plans
Medicaid in planning for Long Term Care.
• Asset test for qualifying for Medicaid.
• Non-confined spouse’s use of the common Owned Home.
• Gifts made within 3 years are counted in the qualification test.
• Use of a Special Needs Trust in Medicaid situation.
• Medicaid’s right to seek reimbursement from the Estate.
Planning for Transfers of assets outside of my Will.
Accounts with right of survivorship.
• Bank Accounts in Joint Tennant with Right of Survivorship pass to the other named party directly.
• This is virtually the only type of bank account that one can establish in Texas with 2 or more individuals in the account as owners of the account. Unles you ask for an account with an extra signer for convenience you will have a JTRS account.
• Use of such accounts with a child who pays your bills may create an unintended gift to that child on your death.
Beneficiary Accounts.
• Virtually any type of account in which money is invested can have a beneficiary designation which will pass on death to such party or parties.
• All such accounts, which have beneficiaries, will be included in valuing the Estate if Estate Taxes apply.
• Accounts designating named beneficiaries are good vehicles for making gifts at death of a sum certain amount of money to named persons as they allow the donor to have use and control of these funds through life.
Living Trusts.
• Marketed as a vehicle to avoid costs of Probate.
• Require immediate transfer of all assets into the Trust.
• A Trust is a legal entity similar to a corporation and has to file annual income tax return, pay taxes on income or distribute all income annually and requires other annual legal and accounting expenses.
• Loss of the limitation on increase of property taxes for disabled person or persons over 65.
• Cost of establishing and maintaining a Living Trust will far exceed the cost of a Will and Probate in Texas.
• One still must have a Will and file a probate to cover any unknown or non-transferred property.
• True benefit of a Living Trust is Confidentiality and immediate transfer of control of the asset.
Life Time gifts.
- Gifts of Appreciated Property passes it with your basis, whereas transfer through Will of Appreciated Property gets a step up in basis to FMV at time of death.
- Gift of appreciated property to a charity gives you a deduction for income tax purposes of the FMV of such asset as of date of the donation and there is no recognition of the appreciated value as income.
- Annual limit or $30,000 to any person without triggering a gift/estate tax issue.
- 3 year wait to avoid including gifts in Medicaid qualification calculation.
If it Sounds Too Good to be True...
Scams Unique to Seniors.
Medicare Slamming
1. Drug Plans
2. Medicare Advantage Plans
- Reverse Mortgage Scams
- Alphabet Soup - Seniors Face and Expanding Array of Questionable Credentials
Scams to Which Seniors are Unusually Vulnerable
• Home Equity “Access Devices”
• Telemarketing Industry Thrives Despite Legislation that Should Have Killed It
• Trust Mills and Annuity Sellers Retool for the Do-Not-Call List
Solutions
• Litigation and Government Actions
1. Lawsuits against Trust Mills
2. Rescission Claims Based on Age
• What can Individuals Do to Avoid Scams?
1. Get on the Do-Not-Call List
2. Do not fill out contest entry forms or door prize tickets
3. Avoid giving out your mailing address or phone number on the internet
4. Use the government website to sign up for a Medicare Drug Plan
5. Hang up on telemarketers
6. Do not buy anything that is sold through cold calls, door-to-door, or in your home
7. Don’t accept free food from sales people
8. If something is available for only a limited time, be very leery about
buying it or investing in it
Useful Resources
Legal and ethical sources
1. Advance Directives Act, TX. HEALTH & SAFETY CODE, ch. 166
http://tlo2.tlc.state.tx.us/statutes/docs/HS/content/htm/hs.002.00.000166.00.htm
2. Consent to Medical Treatment Act, TX. HEALTH AND SAFETY CODE, ch. 313.
http://tlo2.tlc.state.tx.us/statutes/docs/HS/content/htm/hs.004.00.000313.00.htm
3. TX. PROBATE CODE, ch XIII (guardianship)
http://tlo2.tlc.state.tx.us/statutes/docs/PB/content/pdf/pb.000.00.00xiii.00.pdf
4. TX. FAMILY CODE Ch. 151 (rights and duties in parent child relationship)
http://tlo2.tlc.state.tx.us/statutes/docs/FA/content/htm/fa.005.00.000151.00.htm#151.001.00
TX. FAMILY CODE Ch. 32 (consent to treatment of child by non-parent or child)
http://tlo2.tlc.state.tx.us/statutes/docs/FA/content/htm/fa.002.00.000032.00.htm
Good guides for decision-making
1. American Health Lawyers Assoicaition, A Guide to Legal Issues in Life-Limiting Conditions
http://www.healthlawyers.org/Template.cfm?Section=Public_Information_Series&Template=/Content Management/ContentDisplay.cfm&ContentID=50079
2. Life-Limiting Conditions One-Pagers
http://www.healthlawyers.org/Template.cfm?Section=Public_Information_Series&Templ ate=ContentManagement/ContentDisplay.cfm&ContentID=50938
3. ABA Commission on Law and Aging, Consumer’s Tool Kit for Health Care Advance Planning, 2nd ed.
http://www.abanet.org/aging/publications/docs/consumer_tool_kit_bk.pdf
4. Hank Dunn, Hard Choices for Loving People, 4th ed.
http://www.hardchoices.com/#hc
5. National Hospice and Palliative Care Organization, State-Specific Advance Directive Documents and Instructions
http://www.nhpco.org/i4a/forms/form.cfm?id=88