We treat our clients’ needs on a case-by-case basis.
Our Practice Areas
Special Needs Planning
Special needs planning is naturally related to working with elder law, Medicaid, and government programs. Through this branch of my work, I can better assist you in getting complicated Medicaid planning done for children with disabilities or special needs. Helping special needs clients is just another crucial part of the estate planning and elder care continuum.
One of the most crucial benefits gained through special needs planning is the ability to maintain control of your special needs child so they can’t be led astray by someone trying to take advantage of them. Essentially it maintains the legal relationship between parent and child beyond the age of 18. It’s mutually beneficial as the parent can continue to act for the child’s best interest.
Typically, setting up a special needs trust means being able to service the government programs the child is eligible for in order to supplement their lifestyle and improve their overall quality of life. Often the expenses related to caring for a special needs child are astronomical and they need help.
Some of the tools we can use to help you and your loved one with special needs are:
- General powers of attorney
- Medical power of attorney if a trusted family member exists that wants to assist them through the legal system.
- Establishing special needs trust for disabled children, or people with disabilities.
In my experience, it’s important to instruct people in what they legally can and can’t do in regards to special needs and estate planning. The rules of social security are complex and unintuitive, which is why you need a trusted guide through the process.
The Lance Elder Law team is here to help you plan and protect your livelihood and your loved ones.
Call us today at (512) 868-2224 to set up your initial consultation.
Medicaid managed care provides for the delivery of Medicaid health benefits and additional services in the United States through an arrangement between a state Medicaid agency and managed care organizations (MCOs) that accept a set payment – “capitation” – for these services. There are two main forms of Medicaid managed care, “risk-based MCOs” and “primary care case management (PCCM).”
Managed care delivery systems grew rapidly in the Medicaid program during the 1990s. In 1991, 2.7 million beneficiaries were enrolled in some form of managed care. Currently, managed care is the most common health care delivery system in Medicaid. In 2007, nearly two-thirds of all Medicaid beneficiaries are enrolled in some form of managed care – mostly, traditional health maintenance organizations (HMO) and primary care case management (PCCM) arrangements. This amounted to 29 million beneficiaries, of which 19 million individuals were covered by fully-capitated arrangements and 5.8 million were enrolled in Primary Care Case Management.
During this time, states increasingly turned to health plans already serving the public coverage programs such as Medicaid and SCHIP to operationalize expansions of coverage to uninsured populations. States used health plans as a platform for expansions and reforms because of their track record of controlling costs in public coverage programs while improving the quality of and access to care.
A variety of different types of health plans serve Medicaid managed care programs, including for-profit and not-for-profit, Medicaid-focused and commercial, independent and owned by health care providers such as community health centers. In 2007, 350 health plans offered Medicaid coverage. Of those, 147 were Medicaid-focused health plans that specialize in serving the unique needs of Medicaid and other public program beneficiaries. Over 11 million are enrolled in Medicaid focused health plans.
All states except Alaska, New Hampshire and Wyoming have all, or a portion of, their Medicaid population enrolled in an MCO. States can make managed care enrollment voluntary, or seek a waiver from CMS to require certain populations to enroll in an MCO. If states provide a choice of at least two plans, they can mandate enrollment in managed care.
Healthy children and families make up the majority of Medicaid managed care enrollees, but an increasing number of states are expanding managed care to previously excluded groups, such as people with disabilities, pregnant women, and children in foster care.
A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child, and that the parents can designate who shall become the child’s legal guardian in the event of death.
Courts generally have the power to appoint a guardian for an individual in need of special protection. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian. A person may also be appointed as a special guardian, having limited powers over the interests of the ward. A special guardian may, for example, be given the legal right to determine the disposition of the ward’s property without being given any authority over the ward’s person. A guardian appointed to represent the interests of a person with respect to a single action in litigation is a guardian ad litem.
Some jurisdictions allow a parent of a child to exercise the authority of a legal guardian without a formal court appointment. In such circumstances the parent acting in that capacity is called the natural guardian of that parent’s child.
Guardians ad litem are sometimes appointed in probate matters to represent the interests of unknown or unlocated heirs to an estate.
A guardian is a fiduciary and is held to a very high standard of care in exercising his or her powers. If the ward owns substantial property the guardian may be required to give a surety bond to protect the ward in the event that dishonesty or incompetence on his or her part causes financial loss to the ward.
Depending on the jurisdiction, a legal guardian may be called a conservator, custodian, or curator. Many jurisdictions and the Uniform Probate Code distinguish between a “guardian” or “guardian of the person” who is an individual with authority over and fiduciary responsibilities for the physical person of the ward, and a “conservator” or “guardian of the property” of a ward who has authority over and fiduciary responsibilities for significant property (often an inheritance or personal injury settlement) belonging to the ward. Some jurisdictions provide for public guardianship programs serving incapacitated adults or children.
Planning For Incapacitation
Most people don’t realize that a will works just like a compass… only this compass is pointing your family toward the local county courthouse. And while you’re alive, your will is just sitting there, waiting for you to die so it can come alive. But before it can do that, it must be “proven” in court.
What does that mean for your family? It means they’ve got to hire a lawyer, pay court expenses, reveal private information to the public, and then drag through a waiting period – all due to the legal process known as probate. Translation? As some wag once said, “Attorneys are the unwritten beneficiaries of every will.”
But… what if you don’t die? What if you’re just happily walking through life and, one day, you have an accident, a stroke, or some other disabling injury or disease that leaves you alive but mentally incapacitated? You’re stuck in limbo, and so is your will! It can do nothing to help you deal with the possibility of being alive but unable to make decisions for yourself, your estate, or your health care.
On the other hand, maybe you’ll never face a catastrophic event that changes your life in an instant like a stroke can. But what if Alzheimer’s, or Parkinson’s, or dementia, or some other disabling disease robs you or your spouse of the ability to make decisions? If this happens, you and your family will now face the very real possibility of hiring an attorney and going to court to establish a guardianship or conservatorship. In this legal proceeding, someone is appointed the decision-maker over your life, your health, and your wealth.
Hopefully, the court will choose the right person for you. You could live the rest of your life under what I refer to as “living probate.” You’ll be a ward of the court if you haven’t taken the proper legal precautions. All of your financial decision-making and health care will be subject to the review and control of a judge. Your family (and the attorney) will need to return to court from time to time to provide a financial accounting of every check that is written from that point forward.
For this reason, I often sarcastically say that a traditional estate plan could make you wish you were dead. In just a couple generations, there have been enormous changes in life expectancy, and there is a high probability that you or someone in your family will face long-term care or nursing home expenses. For this reason, I believe you can never really be sure if you’re safe unless you have an iron-clad estate and longevity plan.
Estate planning today must be more than just “death planning.” Your goal is to never be out of money and never out of quality health care options before you’re out of breath. You may also want to leave as much of your life’s savings as possible to your loved ones, with the least amount of taxation, delay, and excess cost.
When you sign up for my free e-course:
Powers of Attorney
A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor (of the power), and the one authorized to act is the agent, donee, or attorney or, in some common law jurisdictions, the attorney-in-fact. Formerly, a power referred to an instrument under seal while a letter was an instrument under hand, but today both are under hand (i.e., signed by the donor), and therefore there is no difference between the two.
A power of attorney may be special or limited to one specified act or type of act, or it may be general, and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.)
Durable Power of Attorney
Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes “incapacitated,” meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). This type of power of attorney is called “power of attorney with durable provisions” or “enduring power of attorney”.
Health Care Power of Attorney
In some jurisdictions, a durable power of attorney can also be a “health care power of attorney”, which empowers the attorney-in-fact (proxy) to make health care decisions for the grantor, up to and including terminating care and ending life supports that are keeping a critically and terminally ill patient alive. Health care decisions include the power to consent, refuse consent or withdraw consent to any type of medical care, treatment, service or procedure.
Relationship with Advance Health Care Directive
Related to the health care power of attorney is a separate document known as an advance health care directive or “living will”. A living will is a written statement of a person’s health care and medical wishes but does not appoint another person to make health care decisions. Depending upon the jurisdiction, a health care power of attorney may or may not appear with an advance health care directive in a single, physical document.
For example, the California legislature has adopted a standard power of attorney for health care and advance health care directive form that meets all the legal wording requirements for a power of attorney and advance health care directive in California. Compare this to New York State, which enacted a Health Care Proxy law that requires a separate document be prepared appointing one as your health care agent.
Springing Power of Attorney
In some U.S. states and other jurisdictions, it is possible to grant a springing power of attorney; i.e., a power that only takes effect after the incapacity of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power but cannot be invoked before the incapacity. This may be used to allow a spouse or family member to manage the grantor’s affairs in case illness or injury makes the grantor unable to act, without the power of an attorney-in-fact before the incapacity occurs.
If a springing power is used, care should be given to specify exactly how and when the power springs into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal information relating to capacity of the principal unless the power of attorney specifically authorizes them to do so.
Determining whether or not the principal is “disabled” enough for the power of attorney to “spring” into action is a formal process. Springing powers of attorney are not automatic, and institutions may refuse to work with the attorney-in-fact. Disputes are then resolved in court, which is of course a costly, and usually unwanted, procedure.
Unless the power of attorney has been made irrevocable (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney-in-fact it is revoked; however, if the principal does not inform third parties and it is reasonable for the third parties to rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.
Nursing Home Care - Services
Our Nursing Home Guide takes you through the step-by- step process of selecting the right nursing facility, while keeping the needs and wants of your loved one in mind.
It includes an extensive Nursing Home Evaluation Form to help you make the right choice. This 57-point rating system helps you accurately evaluate the building and surroundings, the staff, policies and practices, your loved one’s concerns…and family considerations.
With it, you will feel confident in the facility you choose. You’ll be at ease, knowing that your loved one is in a comfortable environment with people who care.
The FREE Nursing Home Guide also covers other important topics, such as:
- How to Get Good Care in a Nursing Home
- Division of Assets and Medicaid Planning
- How to Pay for the Nursing Home Without Going Broke
- Exempt Assets and Countable Assets: What Can You Keep and What is at Risk?
- Extensive list of 330 Facilities in the Heart of Texas
Including Williamson, Travis, Bell, and Burnet Counties
The Guide also includes a number of real-life examples and case studies. They will help give you a true-to-life understanding of what you need to know to select the best nursing home for the one you love.
Nursing Home Care - Solutions
Are nursing home expenses causing an undue strain on your family or loved one? Do you feel like you have to choose between getting professional care or protecting your loved one’s home and savings? If so, we can help.
All too often, we hear stories of families having to drain their savings, sell off their loved one’s home or other assets, and then, when the well is dry, they apply for financial assistance from the Medicaid program.
This process is, quite frankly, unnecessary. Armed with sound information and the right strategies, it is possible to qualify for financial assistance for long-term care without having to sell off your home or give up your hard-earned savings.
Medicaid already finances at least a portion of as many as two-thirds of the nation’s nursing home residents. With proper planning and the right strategies, you could be eligible for nursing home financial assistance from Medicaid too!
In collaboration with my staff, I have developed an essential free report to outline the process and address — in plain, easy-to-understand language — the concerns we hear most often from people in situations just like yours.
Comprehensive Estate Planning, Wills, & Trusts
Estate planning is the process of anticipating and arranging for the disposal of an estate. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. Guardians are often designated for minor children and beneficiaries in incapacity.
Estate planning involves the will, trusts, beneficiary designations, powers of appointment, property ownership (joint tenancy with rights of survivorship, tenancy in common, tenancy by the entirety), gift, and powers of attorney, specifically the durable financial power of attorney and the durable medical power of attorney. After widespread litigation and media coverage surrounding the Terri Schiavo case, many estate planning attorneys now advise clients to also create a living will. Specific final arrangements, such as whether to be buried or cremated, are also often part of the documents. More sophisticated estate plans may even cover deferring or decreasing estate taxes or winding up a business.
Many people confuse a living will with a durable medical power of attorney. A living will sets out directives concerning end of life decisions, whereas a durable power of attorney gives all medical decision making authority to an appointed individual upon incapacity, including end of life decisions. Some people have both a living will and a health care power of attorney. In some countries, legal trust lawyers and estate planning attorneys may require or prefer to have some form of accreditation or licensing, such as an MTI or CSEP designation.
Where a person dies leaving a will appointing an executor, and that executor validly disposes of the property of the deceased within England and Wales, then the estate will go to probate. However, if no will is left, or the will is invalid or incomplete in some way, then administrators must be appointed. They perform a similar role to the executor of a will but, where there are no instructions in a will, the administrators must distribute the estate of the deceased according to the rules laid down by statute and the common trust.
Certain property falls outside the estate for administration purposes, the most common example probably being houses jointly owned that pass by survivorship on the first death of a couple into the sole name of the survivor. Other examples include discretionary death benefits from pension funds, accounts with certain financial institutions subject to a nomination and the proceeds of life insurance policies which have been written into trust. Trust property will also frequently fall outside of the estate, but this will depend on the terms of the trust.
Since the Land Transfer Act 1897, the administrator (sometimes known as the administratrix, if female) acts as the personal representative of the deceased in relation to land and other property. Consequently, when the estate under administration consists wholly or mainly of land, the court will grant administration to the heir to the exclusion of the next of kin. In the absence of any heir or next of kin, the Crown has the right to property (other than land) as bona vacantia, and to the land by virtue of the historic land rights of the Crown (and the Duchy of Cornwall and Duchy of Lancashire in their respective areas). If a creditor claims and obtains a Grant of Administration, the court compels him or her to enter into a bond with two sureties that he or she will not prefer his or her own debt to those of other creditors.