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Law Information For Seniors

 

Elder LawElder Law

In the legal realm there are a myriad of lawyers that focus on numerous specialties, see the table below. Here we will provide attention to those that address matters related to Seniors. This subset of specialties is known as Elder Law. Elder Law Attorneys work primarily with people as they age. These attorneys usually coordinate with others in various fields to provide their clients a wide variety of services. Below you will find summary material for highlighted specialties.
Please Note: We make no attempt to provide legal guidance, only to acquaint you with the terms and scope of elder law. Such guidance should come from an appropriate attorney certified in the law as it pertains to your location.

Conservatorship is where a guardian (called the “conservator”) is appointed by a judge to manage the financial affairs and/or other matters of another individual (called the “conservatee”) because of physical/mental limitations. There are various types of conservatorships depending on the needs of the conservatee , General Conservatorships, or Limited Conservatorships and the more stringent Lanterman-Petris-Short (LPS) Conservatorships.
It may be possible to avoid a conservatorship if the person who needs help:

  1. Can cooperate with a plan to meet his or her basic needs.
  2. Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.
  3. Is married or is in a domestic partnership and the spouse or partner can handle financial transactions. The property must be community property or in joint accounts.

Some alternatives to a conservatorship
For Medical and Personal Care Decisions:

  • Advance health care directive
  • Court authorization for medical treatment
  • Informal personal care arrangements
  • Restraining orders to protect against harassment
  • For Financial Decisions:

  • Power of attorney
  • A substitute payee for public benefits (like veterans’ benefits or social security benefits)
  • Informal arrangements
  • Joint title on bank accounts or other property
  • Living trusts (also called “inter vivos” trusts)
  • Elder Abuse refers to any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to a vulnerable adult. Laws and definitions of terms vary considerably from one state to another, but broadly defined, abuse may be: Physical Abuse, Sexual Abuse, Neglect, Exploitation, Emotional Abuse, Abandonment, Self-neglect.
    While one sign does not necessarily indicate abuse, some tell-tale signs that there could be a problem are:

  • Bruises, pressure marks, broken bones, abrasions, and burns may be an indication of physical abuse, neglect, or mistreatment.
  • Unexplained withdrawal from normal activities, a sudden change in alertness, and unusual depression may be indicators of emotional abuse.
  • Sudden changes in financial situations may be the result of exploitation.
  • Bedsores, unattended medical needs, poor hygiene, and unusual weight loss are indicators of possible neglect.
  • Behavior such as belittling, threats, and other uses of power and control by spouses are indicators of verbal or emotional abuse.
  • Strained or tense relationships, frequent arguments between the caregiver and elderly person are also signs.
  • If you suspect abuse you should only to alert others so appropriate action may be taken.




    Estate AdministrationEstate Administration
    Whenever a person dies, there estate needs to be collected and managed. Estate administration involves gathering the assets of the estate, paying the decedent's debts, and distributing the remaining assets.  An “executor” is entrusted with these large responsibilities of making sure a person's last wishes are granted with regards to the disposition of their property and possessions. A solid understanding and experience with the administration process assures a smooth handling of all matters. Hence choosing the right executor and understanding their duties is an important undertaking. The Executors duties include:

  • Finding the deceased person's assets
  • Deciding if probating the last will and testament in court is necessary
  • Finding and contacting the people that are named in a will
  • Filing the will in the appropriate probate court
  • Wrapping up the deceased's affairs
  • Paying debts and taxes
  • Distributing property per the will
  • Estate Planning is the process by which an individual or family arranges the transfer of assets in anticipation of death. Such a planning ensures that your family and financial goals are met after you die.
    Estate plans attempt to maximum amount of estate’s wealth possible that may go to the intended beneficiaries while maintaining flexibility for the individual prior to death. A major focus of estate plans is federal and state tax law. Estate planning distributes the real and personal property to an individual's heirs.
    Wills and trusts are common ways in which individuals dispose of their wealth. Trusts, unlike wills, have the benefit of avoiding probate, a lengthy and costly legal process that oversees the transfer of assets. Sometimes, though, it will be useful to make inter vivos gifts (gifts made while the donor is alive) in order to minimize taxes.
    A will defines where assets distributed when you die. It's also can name guardians for your children if needed. Dying without a will -- also known as dying "intestate" -- can be costly to your heirs and leaves you no say over who gets your assets.
    Trusts are legal mechanisms that let you put conditions on how and when your assets will be distributed.. They also allow you to reduce your estate and gift taxes and to distribute assets to your heirs without the cost, delay and publicity of probate court, which administers wills. Some also offer greater protection of your assets from creditors and lawsuits. Even if you have a trust, you still need a will to take care of any holdings outside of that trust.

    Fiduciary AdministrationFiduciary Administration involves holding assets in trust for another party and includes administrative functions such as portfolio/fund accounting, compliance and regulatory reporting, and shareholder servicing.
    As fiduciaries, we have considerable experience administering the assets held in these estates and trusts, including the management of securities and other investments, utilizing the advice of premier independent investment advisors. Firm attorneys acting as trustees directly manage investment assets with an aggregate value exceeding $700 million and share fiduciary responsibility for very substantial additional amounts.
    When a fiduciary duty is imposed, a stricter, standard of behavior than the comparable standard professional conduct. Most notably the fiduciary should not to be in a situation where personal interests and other fiduciary duties may conflict. A fiduciary may not profit from the fiduciary position. This includes any benefits which, although unrelated to the fiduciary position, came about because of an opportunity that the fiduciary position afforded.  If the fiduciary does make a profit, then the fiduciary must report the profit to the principal.

    Guardianship is when a court orders someone other than the child’s parent to have custody of the child; and/or manage the child's property (called "estate). A probate guardianship of the person is set up because a child is living with an adult who is not the child’s parent, and the adult needs a court order to make decisions on behalf of the child. If a guardianship of the estate is needed, it is best to use a lawyer to set it up, and to represent the guardian of the estate.
    A guardianship is not the same as an adoption. Here are some differences:

    In a Guardianship:

    In an Adoption:

    • Parents still have parental rights. They can ask for reasonable contact with the child.
    • The court can end a guardianship if the parents become able to take care of the child.
    • Guardians can be supervised by the court.
    • The parents' rights are permanently ended.
    • The legal relationship with the adoptive parents is permanent and is exactly the same as a birth family.
    • An adopted child inherits from his or her adoptive parents, just as a birth child would.
    • Adoptive families are not supervised by the court.

    There are 2 types of probate guardianship:
    Guardianship of the person
    The guardian has the same responsibilities to care for the child as a parent would. That means the guardian has full legal and physical custody of the child and can make all the decisions about the physical care of the child that a parent would make. The guardian is responsible for full scope of the child's care. The guardian is also be responsible for supervision of the child and may be liable for any intentional damage the child may cause. A guardianship of the person is sometimes needed when, no matter how much parents love their child, they are not able to parent. Courts may establish a non-parent guardianship if it is in the best interest of the child. This may be due to parental absence, disability or abuse.

    Guardianship of the estate
    The guardian is set up to prudently manage a child's income, money, or other property until the child turns 18. A child may need a guardian of the estate if they inherit money or assets. In most cases, the court appoints the surviving parent to be the guardian of the child's estate. In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint 2 different people. A guardianship of the estate is not needed when a child only owns inexpensive assets or social security benefits.

    Landlord Tenent LawLandlord Tenant Law
    Whether the tenant is renting a room, an apartment, a house, or a duplex, the landlord- tenant relationship is governed by federal, state,  and local laws. Tenants and landlords should discuss their expectations and responsibilities before they  enter into a rental agreement.  if a problem  occurs, the tenant and landlord should try to  resolve the problem by open communication  and discussion. An honest discussion of the problem may show each party that they are not completely in the right, and that a fair compromise is in order.
    If the parties cannot reach a solution on their own, they may be able to resolve the problem through mediation or arbitration. Mediation implies deliberation that results in solutions that may or may not be accepted by the contending parties. Arbitration involves a more formal deliberation, it being understood that the results will be binding on the contending parties. In some situations, a court action may provide the only solution.  Consultation with a lawyer can assist in choosing the best approach to remedy the situation at hand.




    Medicaid lawyers focus their practice on helping seniors and their families with legal and financial planning for the transition to nursing home care. They work with families needing guidance for asset protection and Medicaid qualification. Medicaid laws can be very complicated, and help may be needed determining what one’s rights are in terms of eligibility and planning for the future. A Medicaid lawyer may be helpful planning for long-term care for oneself or a family member.

    Often families need particular legal documents drafted.  Each case is unique and different services are required depending on the applicant's income and asset levels and specific state's qualification laws and
    Medicaid Lawyers may provide the following services and legal documents for their clients:

  • Guardianships
  • Homestead Protection
  • Lady Bird Deeds (technically called an “enhanced life estate deed). This type of deed allows the owner of the home to keep all the rights to the property in their name until death; the property then transfers after death, without any probate.
  • Medicaid Applications
  • Miller Trust or Qualified Income Trust (QIT) documents -- needed in income cap states to qualify for Medicaid
  • Spousal Protection
  • Wills and Powers of Attorney

  • Medicaid lawyers focus their practice on helping seniors and their families with legal and financial planning for the transition to nursing home care. They work with families needing guidance for asset protection and Medicaid qualification. Medicaid laws can be very complicated, and help may be needed determining what one’s rights are in terms of eligibility and planning for the future. A Medicaid lawyer may be helpful planning for long-term care for oneself or a family member.

    Often families need particular legal documents drafted.  Each case is unique and different services are required depending on the applicant's income and asset levels and specific state's qualification laws and
    Medicaid Lawyers may provide the following services and legal documents for their clients:

  • Guardianships
  • Homestead Protection
  • Lady Bird Deeds (technically called an “enhanced life estate deed). This type of deed allows the owner of the home to keep all the rights to the property in their name until death; the property then transfers after death, without any probate.
  • Medicaid Applications
  • Miller Trust or Qualified Income Trust (QIT) documents -- needed in income cap states to qualify for Medicaid
  • Spousal Protection
  • Wills and Powers of Attorney
  • Retirement Planning Individuals continue to live longer and don't want to run out of money. Retirement planning solutions are designed to provide steady, secure and consistent income so that one can sleep soundly at night knowing that retirement is secure. Planning focuses on insurance vehicles, fixed indexed annuities, hybrid annuities, and market-based approaches.
    See our Finance area (http://www.seniorresource.com/finance.htm) to learn more about retirement planning and tools.


    Apply for Disability Benefits with Freedom Disability

    Social Security Disability Insurance (SSDI) is a type of government benefit administered by the Social Security Administration. SSDI benefits are paid monthly to provide relief to people whose ability to work has been significantly impaired by a physical or mental disability.
    SSDI is a benefit that is paid to people who have worked and paid taxes into the Social Security system as income replacement.
    To be eligible for benefits, an individual must have worked and paid into the system for a sufficient period of time. To be eligible for benefits, you must have a physical impairment or mental impairment (or a combination of the two) that significantly impairs your ability to work. Children and spouses who have lost a loved one may also be eligible for benefits.
    A qualifying impairment may arise as a result of a disabling accident, heart condition, disease, mental disability, brain damage, dementia or other disabling condition. Common conditions include back, neck or spine impairment, leg or knee impairment, hand and arm impairment, cancer, heart problems, vision or hearing loss, chronic pain and fatigue, organ damage, carpal tunnel syndrome, traumatic brain injury, depression and anxiety.
    As a general rule, your disability must be severe enough to significantly impair your ability to work for at least a year or result in death. However, you should not wait a year before contacting an attorney. If you have a condition that may impair your ability to work for a significant period of time, contact an attorney immediately to initiate your claims process early.


    Looking for a legal forms?

    Lawyer Selection Lawyer Selection There are a wide variety of lawyers to select from to handle any given situation. The first step is to try to define, at least in a limited way, the specific issue with which you need help. This can be done through research at a library or online or also by consulting friends and professionals. With this information in hand the following approaches may be used to find a lawyer. The following are sevral lawyer selection approaches.

     

    Lawyer Selection Approaches

    Recommendations. You could also ask your friends, co-workers and employers if they know any lawyers. Business owners and professionals such as bankers, ministers, doctors, social workers and teachers might be able to give you the name of a lawyer.
    Certified lawyer referral services. You could call a local State Bar-certified lawyer referral service. This type of service refers potential clients to attorneys. The referral service staff will match you with a lawyer who is experienced in the appropriate area of the law. Numerous certified lawyer referral services may be found online.
    Certified lawyer referral services must meet minimum standards established by a state Supreme Court or Bar Association. A certified referral service may provide the following services:

    • • Refer you to a lawyer who has experience in the field of law that relates to your case.
    • • Refer you to attorneys who are insured.
    • • Screen your call to determine whether you have a legal problem — or need some other type of assistance (mediation or arbitration for example).
    • • Assure the referred attorney is a State Bar member in good standing.
    • • May be able to provide an attorney at a reduced rate. Lawyer referral services may be required to make arrangements to serve people with limited means.
    • • May be able to provide you with a bilingual attorney.

    Advertisements. You also could check the Yellow Pages, newspaper advertisements or the Internet in your search for an attorney.
    Public interest groups. Non-profit public interest organizations, such as groups concerned with civil liberties and housing discrimination, may be able to help you. Contact your city or county housing office for groups that are concerned with your problem.
    Free legal aid agencies. What if you can’t afford a lawyer? Depending on your income and the nature of your legal problem, you may be able to get free or low-cost legal help in non-criminal cases from a legal services program. Check the white pages of your telephone book to see if such an organization is located in your area.
    Dispute resolution programs. In addition, many communities have “dispute resolution” programs. These programs can help you and another person “mediate” or work out problems instead of going to trial.
    Prepaid legal services plans. Perhaps you belong to a “legal insurance” plan.  Like medical insurance, your plan may cover the kind of legal work you need. Generally, the premiums you pay entitle you to a certain amount of a lawyer’s time or services at a reduced rate.

    Lawyer Selection Checklist
    Once you've narrowed the list down to several names, use the following checklist to screen them:



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    Legal Disclaimer

    This Seniorresource.com Law Information Page makes no representations concerning the content of the information. All information is provided for educational purposes and may not fit your specific situation. Due to the intense personal nature of any legal issues, it is suggested that you consult with an appropriate attorney to ensure your issues are resolved to your satisfaction.