Frequently
Asked Questions (click on a topic to go directly
to the section)
Estate
Planning Questions
Advance
Directive Questions
Elder
Law Questions
Guardianship
Questions
ESTATE PLANNING QUESTIONS
1.
Why do estate planning?
- You can provide for your loved ones in the unique circumstances
of your family situation.
- You can lower the cost of administering your estate,
and you can smooth the process of transferring property
at your death.
- You can anticipate future events and provide contingent
planning.
- You can continue your support of ministries and charities
after your death.
- You can maximize the amounts distributed to family and
charities.
- You can minimize the amount paid to the IRS.
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2. What should I bring to my appointment?
An overview of your estate, which might include:
- Cash accounts (bank, savings, credit union, etc.)
- Investments (brokerage accounts, stocks, bonds, mutual
funds, certificates of deposits, etc.)
- Retirerment accounts (IRA, 401(k), 401(a), 457, Keogh,
SEP, etc.)
- Household furnishings, and personal items.
- Real estate (residence, vacation home, rental, etc.)
- Insurance policies (owned by you, owned by someone else
in which you are the insured or owned by Decendent)
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3. Do I need a Will?
In most cases, yes. Every person has unique
and individual circumstances so the answer will depend on
their specific situation. It is definitely worth having a
consultation with an attorney to determine what each individual's
specific needs may be.
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4. Can I prepare my own Will?
While there are many “do it yourself”
Will kits on the market, I recommend that each person have
an attorney prepare their Will, or at a minimum review their
Will. Probating a Will in Texas is fairly simple and inexpensive
if your will has certain provisions and is executed with all
the due formalities required by law. Missing any of those
formalities may result in an invalid Will and significantly
increase the costs of probating your estate. Also, an attorney
can assist you in making long term decisions and additional
financial planning through your Wills.
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5. We are young and do not have any assets - do
we need a Will?
A Will is generally the easiest and least
expensive way to administer your estate, which is even more
important with smaller estates. Also, a Will can include a
provision that names a Guardian of minor children should something
happen to both parents. This is your opportunity to designate
the person of your choice to raise your children and manage
any estate left to the minor by the parents.
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6. How long do I have to probate a Will?
Most Wills are probated within a few months
of death. It is possible to probate a Will at anytime within
four years of the Decedent’s date of death. After four
years the process becomes more difficult, costly and less
certain.
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7. Is probating a Will expensive?
In Texas, the cost of probating a Will is
relatively inexpensive. Depending on the Will and other circumstances,
a lot of attorneys charge a flat fee for probating a Will
plus additional out-of-pocket expenses including filing fees.
Attorneys in Texas are NOT paid a percentage of the Decedent’s
estate.
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8. Who should I name as my agent on my
Power of Attorney?
A Durable Power of Attorney is an asset
management device. It appoints an agent to handle your financial,
legal and business matters on your behalf. The “durable”
feature means the agent’s authority continues even in
the event of your incapacity. Therefore, you must implicitly
trust the person and successor you name as your agent.
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ADVANCE DIRECTIVE
QUESTIONS
9. What is an Advance
Directive?
An advance directive is written instructions
about your medical care in the event you become unable to
make your own medical decisions. In the absence of an advance
directive, the doctors will have to try to identify your “nearest
kin” to make decisions for you. Most folks would rather
specify who the decision maker will be.
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10. Does an Advance Directive mean that they
won't try to resuscitate me?
A Directive To Physicians (“living
will”) is your statement of treatment preferences. You
can opt to have life support continued or discontinued. You
can specify the conditions under which you are willing to
have it continued and the treatments you are willing to undergo.
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11. What is a Medical Power of Attorney?
A Medical Power of Attorney is your designation
of who you want to make medical decisions for you if you cannot.
It will avoid misunderstanding and conflicts. It allows you
to vary from the natural order of decision-making. The key
factor is to pick someone who really knows you well enough
that they will understand what you would want to have happen
AND who will follow through on your wishes.
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12. What is a HIPAA document?
HIPAA is a new law that restricts the doctors
from disclosing any of the patient’s medical information
without written authorization. Most estate planning now includes
a global HIPAA Authorization that permits the persons named
in the Medical Power of Attorney to have access to the person’s
medical information.
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13. Are the legal papers (advance directives,
medical power...) valid in other states? What if I move?
The documents will be valid in all states.
We often update documents to assure smooth administration
within a particular state. Sometimes we replace documents
if there is a better planning solution in the new state.
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ELDER LAW QUESTIONS
14. What should I be
discussing with my parents right now while they’re alive?
- Asset management
- Health care management
- Living arrangements
- Disposition of assets
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15. If I bring my parents to meet with an attorney
for estate planning or Medicaid planning, who is the client?
I am most often contacted by the parents
themselves, although I have a number of cases where the initial
contact is through the children. I am comfortable dealing
with the children initially to understand the family situation
and the issues. I have an ethical obligation, however, to
make certain that the attorney-client relationship is clear
and that there is no misunderstanding who I represent. I will
be an advocate and counselor for the parents and work for
their best interests.
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16. My parents have too many resources
or too much income to qualify for Medicaid, what can I do?
There are ways to transfer assets, establish
a “Miller” trust or other vehicles to reduce your
parent’s countable resources or income so that they
can qualify for Medicaid or other government assistance. There
are very specific rules and regulations and you should check
with a knowledgeable attorney before moving any assets. These
rules change frequently.
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17. What is an Elder Law attorney? Why are you
called that?
Elder law attorneys have decided to spend
more of their time and focus on the issues confronting seniors,
and generally have more experience and specialization in dealing
with the issues that more commonly affect older adults.
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18. What types of services do you provide that
are different from other attorneys?
Elder law is a subset of estate planning,
and elder law attorneys do many of the same things as regular
estate planning attorneys:
- Powers of attorney for asset management
- Advance directives
- Wills
- Trusts
- Guardianships
Elder law attorneys also handle matters that
are more specific to seniors:
- Assistance in developing a care plan for the senior
- Public benefits advice (Medicare claims and appeals,
Medicaid, Social Security appeals, Supplemental Security
Income, Veteran's benefits, etc.)
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19. Are Elder Law attorneys licensed or regulated
and if so by whom?
Generally, any attorney can decide to focus
his practice in a specific area and advertise in that area.
Beyond being a licensed attorney, there is no additional requirement
or regulation.
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20. How do you find someone who specializes
in Elder Law? Website? Phone book?
Texas Board of Legal Specialization has a
searchable database for attorneys that are board certified
in estate planning and probate. www.tbls.org
National Elder Law Foundation has a searchable database for
certified elder law attorneys. www.nelf.org
- 17 in Texas.
National Academy of Elder Law Attorneys - a voluntary association
of attorneys who practice in this area, has a database of
attorneys that is searchable by zip code or by city and state.
www.naela.org
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21. Could I use my regular attorney for
handling legal issues for my parents/grandparents?
The number one criteria in selecting an
attorney is rapport, trust and confidence. If the family member
has an attorney they know, it doesn’t hurt to start
with him or her. Attorneys have an ethical obligation to not
take on a representation in which they are not competent.
An attorney will either engage co-counsel or refer the matter
to a specialist.
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22. When should someone be looking for
an Elder Law Attorney?
No magic age. AARP starts sending membership
cards at age 50, and many senior discounts become available
at age 55. The longest lead time for dealing with issues is
generally 3-6 years to adequately prepare for Medicaid qualification.
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23. What qualifications should someone be looking
for when looking for an Elder Law attorney?
- Recommendations - word of mouth
- Experience of the attorney
- Rapport with the family
- Board Certified - Estate Planning and Probate
- CELA designation
- NAELA member
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24. What should we think about after
reading these questions?
Take responsibility to address these issues
- for yourself, and for the older adults within your family.
Dealing with this cluster of issues is good stewardship.
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GUARDIANSHIP QUESTIONS
25. What is a guardianship?
A guardianship occurs when a court determines
that a person lacks capacity. An “incapacitated person”
is:
- a minor (an individual under age 18)
- an adult individual who, because of a physical or mental
condition, is substantially unable to provide food, clothing,
or shelter for himself or herself, to care for the individual’s
own physical health, or to manage the individual’s
own welfare or financial affairs; or
- a person who must have a guardian appointed to receive
funds due the person from any governmental source.
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26. Is there more than one type of guardianship?
Yes. A Guardian of the Person has:
- responsibility for the care, control, and protection
of the Ward
- a duty to provide food, clothing, medical care, and
shelter for the Ward; and
- the power to consent to medical treatment for the Ward
A Guardian of the Estate takes control of
and manages all of the Ward's personal property, including
cash, stocks, bonds, automobiles and other tangible property.
The Guardian of the Estate also must manage and insure the
Ward's real property.
A temporary guardianship may be requested
in cases of imminent harm to the Ward or the Ward’s
estate. A temporary guardianship can be granted in a matter
of days, and generally expire after 60 days. Temporary guardianships
are granted much less frequently than permanent guardianships
and greatly increase the cost of the guardianship.
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27. How is a guardianship established?
A guardianship is established through a court
proceeding. Usually, a family member or concerned friend hires
an attorney to file an Application for Appointment of Guardian.
The application is generally filed in the county where the
Ward resides. In the event someone is concerned about an individual
but does not want to intervene directly, an information letter
can be sent to the probate court of the county, and the judge
will appoint someone to investigate the situation and make
a report.
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28. What is necessary to start a guardianship?
The application is usually supported by a
letter signed by a physician licensed in Texas stating the
nature and degree of the Ward’s incapacity. The letter
must be based on an examination that was performed within
120 days prior to the filing of the application.
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29. If I have my mother's financial power of attorney, do
I just need to become guardian of her person?
As long as third party institutions are allowing
you to manage your mother’s affairs with the power of
attorney, you can request to be appointed as guardian of the
person only. However, once you file the proceeding, the court
may review the process by which your mother’s estate
is being handled and may require the appointment of a guardian
of the estate.
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30. My parents signed a document that appoints me as the guardian
of my 12-year old brother. Does this officially make me the
Guardian of my brother?
No, although your parents have indicated
that it is their wish that you become Guardian of your brother
(when and if it becomes necessary), it takes a court proceeding
to official be appoint you as Guardian.
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31. My parent is on Medicaid and resides in a nursing home,
but the staff still wants a Guardian appointed. How can this
happen if my parent does not have assets?
Sometimes a residential facility or nursing
home will want an incapacitated person suffering from dementia,
mental retardation, autism, etc. to have a Guardian of the
Person. This appointed person can authorize medical treatments
and assist with residential placement of the Ward, even if
the Ward is the beneficiary of a government program such as
Medicaid or SSI.
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32. Should I try and avoid guardianship?
Guardianships are usually considered a “last
resort” and are put in place when all other alternatives
have been exhausted. Sometimes a person is no longer able
to sign powers of attorney and there is no other option than
appointing a Guardian to handle the person’s financial
affairs or help with residential placement and medical decisions.
A guardianship is often initiated because the agent holding
the person’s powers of attorney is not taking care of
the principal or managing their estate as a prudent person
should. Guardianships are invasive and remove almost all of
a person’s rights and privileges, such as driving, voting,
and handling their own funds. Guardianships are also expensive
when compared to the alternative of using a power of attorney
or a trust. And after a guardianship is established, there
are ongoing reports and accountings to the court. For these
and other reasons, guardianships are generally regarded as
the default mechanism for managing someone’s life and
assets that is used only when no other alternative is available.
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