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"Elder
Law Services" |
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INTRODUCTION John Martin Smith devotes about fifty percent (50%) of his practice to "Elderlaw." This is a broad term that covers several areas of the law, including:
WILLS AND ESTATE PLANNING We will assist you in planning your estate to provide that your property is transferred to your heirs or devisees in the least expensive and minimization of taxes to the maximum extent possible. This may involve a simple will, a will with testamentary trust, gifts, etc. We review your assets, your intentions, analyze the tax issues and make recommendations and alternatives. When you decide what you want, we prepare the necessary documents to implement your plan. Sometimes we advise as to insurance beneficiaries, pension, or related beneficiaries, and the advisability of gifts. Once a plan is completed and documents are signed, we bind them into a booklet for your future reference. Plans should be reviewed periodically, particularly when there are major changes in the family situation such a death, a divorce, or serious illness. PROBATE OF ESTATES,
TRUST DISTRIBUTION, AND Our office handles many estates, trust distribution or administration, and determination of death taxes. At death a person may own assets in their name that will have to be dealt with. If there is no will, the assets will be administered and distributed pursuant to state law. If there is a will, it will be probated (put of record with the court), the assets administered pursuant to the terms of the will, and then distributed in accordance with the will. If a person dies owning property in trust, the trustee may need assistance in the distribution of assets and the determination of death taxes. Some estates will be subject to Indiana Inheritance Tax or Federal Estate Tax (presently only applicable to gross estates exceeding $1.5 Million). We assist the personal representative in satisfying the law as to death tax issues. GUARDIANSHIPS Guardianships are sometimes necessary for minor children who inherit property or receive accident settlements. Older persons who become mentally or physically handicapped may need a guardian to deal with their assets. We assist in the establishment of a guardianship and assist the guardian in complying with the law as to legal documents, court reports, etc. REVOCABLE TRUSTS AND TESTAMENTARY TRUSTS Our analysis of a client's assets and intentions may result in a recommendation of a Revocable Trust or a Testamentary Trust. A Revocable Trust is created during a person's or couple's lifetime, most of their assets are transferred to the trust, and then held in trust until death, at which time distribution is made as directed in the trust. The main advantage is avoidance of probate and, to a certain extent, privacy. A Testamentary Trust is created by will for the benefit of minor children, incompetent adults, spendthrift children, a person on Medicaid (Special Needs Trust), etc. A Testamentary Trust does not come into existence until death. Usually the trust is docketed with the courts and a report filed bi-annually. DURABLE POWERS OF ATTORNEY AND HEALTHCARE DIRECTIVES A Durable Power of Attorney delegates the authority to deal with one's assets and affairs to another person. Durable Powers of Attorney are frequently granted to one's spouse or a child or children. They are usually signed while one is competent but not used until one becomes incompetent. Healthcare Directives may be incorporated into a Durable Power of Attorney or may be a separate document. A Durable Power of Attorney remains effective even if a person becomes incompetent and also remains effective as to actions taken prior to death but are not finalized until after death. A Limited Power of Attorney may be necessary for a special transaction such as a real estate closing in the absence of a party. MEDICAID PLANNING This is a broad area of our practice which addresses issues of property and income if one or one's spouse needs long term medical or custodial care in a nursing home. Such a person may be eligible for Medicaid to pay medical and/or nursing home expenses. There are, however, many issues as to the assets owned by the person or a couple. There may be ways to protect assets and income and still receive Medicaid benefits. The "Spousal Impoverish Act" guarantees that a spouse may retain substantial assets and income. We advise clients as to what can be done to legally shift assets but yet receive Medicaid benefits. To do this we analyze all assets, how they are held, and whether they are exempt. We then present alternatives as to the shifting of assets to the "at home spouse" or the re-investment of assets into devices to protect them. CONCLUSION The general area of "Elderlaw" may involve many other issues. The foregoing is a brief description of "Elderlaw" issues. We have over fifty years of combined experience in dealing with Elderlaw issues. We regularly attend seminars in this field to keep abreast of the law and planning techniques. |