ELDER LAW AND LONG TERM CARE PLANNING.
WILLS AND TRUSTS.
SPECIAL NEEDS TRUSTS.
SUPPLEMENTAL NEEDS TRUSTS.
ESTATE ADMINISTRATION OR PROBATE OF THE ESTATE.
Elder Law and Long Term Care Planning.
We can assist with long term planning for you or your loved ones. We offer advice on asset preservation, inheritance planning, navigating benefits, and receiving all that you or your family member are entitled to. We work with financial advisers and other professionals to develop comprehensive plans that work for your specific situation. We assist with nursing home and care facility accommodations, document signings and family disputes. Comprehensive planning allows us to develop a unique plan that works for your specific situation, versus just preparing a "simple will" that could likely omit many important issues from being addressed. We can also address social security benefits, medicare, medicaid, veterans benefits, senior housing choices, and a variety of other elder law issues.
The probate process can be lengthy, expensive, and emotional. As part of the estate planning process at LawyerLisa, we can consider different probate avoidance techniques and if it matches your goals, develop a comprehensive plan that works for your family and financial situation so that your family members may avoid having to go through the probate process. Examples of some probate avoidance techniques are: joint tenants with the right of survivorship or life estate deeds, use of LLCs or living trusts, and transferring the title to smaller assets that would normally pass through probate so they will instead pass non-probate.
If you own real estate in multiple counties or states, it may be necessary to file probate in each of those locations. In order to avoid having to file multiple ancillary estates in every place you own real estate, we can develop a plan for your real estate that avoids the time and expense of these multiple court filings.
Probate avoidance is not the solution for everyone. Depending on your specific situation, it may be better to set up an alternate plan. If you are considering probate avoidance, we will discuss the benefits and detriments of this at your estate planning consultation.
Wills and TRUSTs.
Drafting the appropriate legal documents that convey your wishes is only half the battle. A will or trust must also be properly funded. Developing a comprehensive plan that includes your wishes and the proper execution of them is important. Discount estate planners or online "lawyer-assisted" document generating websites usually do not address all of the issues that may come up. If you don't know what could go wrong or what you are leaving out, how can you fix it?
We can assist you with selecting the appropriate fiduciaries to manage your finances and make health care decisions in the event you are unable to do so. A fiduciary is someone who has a special relationship of trust and good faith with regard to the transaction for the beneficiary. They generally use their judgment to decide what would be best for the beneficiary.
For Incapacitated Adults:
Under South Carolina law, the definition of an Incapacitated Person is a "person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or property." S.C. Code of Laws 62-5-101
If someone is believed to be incapacitated and unable to make their own health care decisions, a Guardianship Action can be filed with the Probate Court to have that person legally declared an Incapacitated Person and have a Legal Guardian appointed with the authority and responsibility over their health and health care decisions.
If the person was previously competent and designated an Agent in their Health Care Power of Attorney, a guardianship proceeding can generally be avoided and the Health Care Power of Attorney can be used by the appointed Agent to make health care decisions for the now incapacitated person.
In the event of a parent's death:
If you care for a child or incapacitated person, your will or trust should nominate someone to be appointed the legal guardian over them, in the event of your death. A surviving parent who lives with and has custody of a minor child will normally automatically continue to have sole custody, but in the event they are unable or unwilling to, it is important to nominate alternates for this important role.
If someone is believed to be incapacitated and unable to make their financial decisions, a Conservatorship Action can be filed with the Probate Court to have that person legally declared an Incapacitated Person and have a Legal Conservator appointed with the authority and responsibility over their finances and financial decisions.
If the person was previously competent and designated an Agent in their Durable Financial Power of Attorney, a conservatorship proceeding can generally be avoided and the Durable Financial Power of Attorney can be used by the appointed Agent to make financial decisions for the now incapacitated person.
There are a variety of asset protection techniques that can be utilized depending on an individual's unique circumstances. Techniques may range from revocable or irrevocable trusts to protect property and assets from family members, in-laws, spouses, or children to re-titling assets or working with a financial advisor to change the character of assets so they will provide a benefit with less risk. We can set up trusts with spendthrift provisions to keep most creditors from gaining access to assets. Sometimes utilizing an LLC or other corporate structure may be an option to limit liability and protect assets from potential future creditors. We can also advise you on what types of assets may be exempt from creditor claims.
Medicaid planning is generally done in advance of when Medicaid may be needed. Medicaid currently has a five year look-back period on asset transfers. This means that any gifts of any amount can be scrutinized by the agency and a penalty period can be imposed based on the amount of the transfers made during that five year window.
Special Needs TrustS.
The law allows persons with disabilities to retain their own financial resources and still qualify for government benefits such as Social Security Income (SSI) or Medicaid, if those resources are placed in a Special Needs Trust. A Special Needs Trust can be a trust created for the sole benefit of that individual or a pooled trust managed by a non-profit organization.
A Special Needs Trust created for the sole benefit of a disabled person who is under age 65 is generally referred to as a d4a trust, this is short for the code section that created it: 42 U.S.C. 1396p(d)(4)(A). A d4a trust may be created by the disabled person's parent, grandparent, legal guardian, or the court. This type of trust must have a pay-back provision included in it. This means that any amounts paid under the Medicaid program for the benefit of the disabled person, must be paid back to Medicaid upon the person's death from any remaining funds in the d4a trust.
A Pooled Special Needs Trust is also referred to as a d4c trust, this is short for code section: 42 U.S.C. 1396p(d)(4)(C). This type of trust is created and managed by a nonprofit organization. The disabled person's funds are maintained in a sub-account for their benefit, but the total assets are pooled for investment and management purposes. The funds in the sub-account are for the sole benefit of the disabled individual. This type of account can be created by the person's parent, grandparent, legal guardian, court, or by the individual himself. Any funds not used by the individual's death are generally retained by the pooled trust, however, funds not retained are paid back to Medicaid.
Supplemental Needs Trusts.
A Supplemental Needs Trust is a special needs trust created and funded with the assets of a third party (not the disabled individual's assets). The disabled individual does not have control over the trust assets or direction, and therefore, is not a countable resource for SSI or Medicaid eligibility purposes. A supplemental needs trust does not need to include a payback provision to Medicaid. Therefore, the person funding the Supplemental Needs Trust can name the remainder beneficiaries of the assets remaining at the disabled individual's death.
A Supplemental Needs Trust can be created as a stand-alone Revocable or Irrevocable Inter-vivos Trust Agreement, or in a will as part of a Testamentary Trust.
Estate Administration or Probate of the estate.
Let our experience guide you through the estate administration process. If you are unsure of how to proceed or just have questions along the way, we can advise you on various aspects of the process, or handle it for you. There are different strategies that you can utilize depending on the specifics of the estate. Creating a plan to deal with court filings, potential creditor claims, or possible family disputes can be an important part of the process.
We can help plan for future marriages, especially when there are concerns for prior children, lifetime provisions for a spouse, concerns about in-laws, future Medicaid concerns, social security concerns, and more. Contact us for a consultation so we can discuss how to achieve your wishes. Prenuptial agreements address not only possible divorce, but what happens in the event of your death.
We can help plan for the future care of your beloved pets in the event you are unable to care for them or if you pass away before they do. Assets can be preserved and directives can be made for the care of your pets.
We can help plan for unexpected needs of those you love after you death. If you are concerned that a loved one may need government benefits in the future, we can set up a trust to handle the unknown.