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Frequently
Asked Questions and Their Answers
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Q. What is
an Elder Law Attorney?
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An
Elder Law Attorney is one who provides legal services to older
persons and their families.
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There
are special laws affecting elderly and disabled persons, and an
Elder Law Attorney concentrates her study and practice on these
laws.
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Q. Do you
know the advantages of using an Elder Law Attorney?
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An
Elder Law Attorney works to ensure that the laws affecting you
or your loved one are applied correctly. The agencies who
administer the programs for the elderly establish policy
guidelines. Sometimes, policy guidelines are not permitted by
the governing law.
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Ms.
Weber successfully protects her clients from such mistakes. The
laws and policies affecting elderly and disabled persons do
change over time. In fact, many of the laws require annual
adjustments. Ms. Weber devotes her time and resources to study
these changing laws. She attends conferences each year to stay
influenced and abreast of the ever changing laws and issues of
concern to her clients. A qualified Elder Law Attorney understands the background, purpose, and reason
for the laws and the changes in the
law. As an Elder Law Attorney, Ms. Weber also works closely with
other professionals, such as social workers, nurses, physicians,
nursing home administrators, accountants and Medicaid case
workers. Ms. Weber often provides in-service training for these
professionals. As a result, Ms. Weber learns about the issues
affecting her clients from different perspectives.
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In
short, an Elder Law Attorney like Karen H. Weber is often able
to connect her clients with others to address all the
issues of the client. A qualified Elder Law Attorney is a member
of a network of service providers dedicated to meeting the needs
of the elderly and persons with disabilities. An Elder Law
Attorney frequently assists the family in changing their role
from care provider to care advocate.
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Go
to the NAELA website to see other advantages of using an Elder Law
attorney. They have a brochure called “Elder Law: A Practice
Coming of Age.” www.naela.com
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Q. Must I
sell our home to obtain Medicaid benefits ?
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Generally,
No. The home is an exempt asset for Medicaid qualification
purposes. In other words, it is not counted towards the asset
limit for Medicaid qualification. However, the home is generally
exempt
only as long as either spouse (or other qualified person) is living
in the home or intends to return home. The home will be subject to Medicaid estate recovery
unless appropriate planning has occurred or another exception
exists.
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Q. Is it
too late to save resources if my loved one is already in the
nursing home?
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Generally,
No. It is not too late to save assets just because your loved
one is already in the nursing home. However, there are special and
complicated rules regarding transfers of assets.
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Q. Does my revocable living trust protect our
assets from Medicaid spend down?
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Generally,
No. Assets held in a revocable living trust are “countable”
for Medicaid qualification purposes.
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Q. What is a Durable Power of Attorney?
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A durable power of attorney is a legal document by which one
person, ''the principal'', authorizes another, "the
agent", to act
on the principal's behalf regarding financial and/or medical
decisions. A durable power of attorney is one of the most simple and
important planning tools available today. "Durable"
means the authority granted in the document remains valid and
effective if the principal becomes incapacitated after
executing the document.
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Q. Who should have a Durable Power of Attorney?
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Every person over the age of 18 years should consider
executing a durable
power of attorney. More specifically, all persons wishing to
avoid Court involvement and at the same time provide for the
continued management of their assets and health care in the event of physical
or mental incapacity should have a durable power of attorney in place.
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Q. How long will a
Durable Power of Attorney be effective?
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If properly drafted and executed, a durable power of attorney will continue indefinitely so long as there is not a stated
termination date and provided the power is not limited to a
particular transaction. The principal may, however, revoke the
powers and duties delegated to an agent. A revocation should
be made in writing and acknowledged in the same manner as the
durable power of attorney.
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A power of attorney is automatically revoked upon the death
of the principal. A power of attorney which is not "Durable" will
terminate upon the principal's disability or incapacitation.
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Q. Are there any
disadvantages to a Durable Power of
Attorney?
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Yes. Like most legal and financial decisions, there are
advantages and disadvantages to the durable power of attorney.
The advantages include relatively low cost, privacy, the
opportunity to select dependable people and, until incapacity
actually occurs, the opportunity to revoke or change the power
of attorney. Problems can occur, however, if you are not
careful in the selection of your agent since this individual
will have decision-making authority in the management of
your financial and other affairs.
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Q. What happens if I don't have a Durable Power of
Attorney?
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Without a properly executed durable power of attorney, nobody,
including your spouse, has the authority to make decisions on
your behalf. The assets of a disabled individual will likely
be frozen and inaccessible and no one will have authority to
make medical decisions for you. Without advance directives,
life-prolonging treatments that the patient may not have
otherwise desired will probably continue.
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For many families of
people with disabilities, there is no
choice but to seek Court intervention and petition for the
appointment of guardian and/or conservator. Unfortunately,
such proceedings are costly and require on-going, strict Court
supervision.
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A
durable power of attorney, on the other hand, allows the
agent to act immediately upon the principal's incapacitation.
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Q. What does it mean to be a "fiduciary"?
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This means you will be held to the highest standards of good
faith, fair dealing, and undivided loyalty with respect to the
principal. You must always act in the principal’s best
interest and keep his or her goals and wishes in mind in
making any discretionary decision. However, you do not have
the same responsibility as a trustee or executor, who has
total control over the estate or trust assets, since you share
control with the principal. Your fiduciary
duty as attorney-in-fact covers the discretionary actions you take on
your own as attorney-in-fact for the principal.
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Q. When does the
Durable Power of Attorney take effect?
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Unless the power of attorney is "springing," it
takes effect as soon as it is signed by the principal. A
"springing" power of attorney takes effect only when
and if the event described in the document itself takes place.
Typically, this is the incapacity of the principal. In most cases, even when
the power of attorney is immediately effective, the principal
does not intend for it to be used until he or she becomes
incapacitated. You should discuss this with the principal so
as fiduciary you are aware of and can carry out his or her wishes.
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Q. What if there is more than one attorney-in-fact?
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Depending on the wording of the power of attorney document,
you may or may not have to act together on all transactions.
In many cases, when there are multiple attorneys-in-fact, they
are appointed "severally," meaning they can
each act independently of one another. Nevertheless, it is
important for them to communicate with each another to make
sure their actions are consistent.
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Q. Can a
Power of Attorney agent be fired?
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Yes. The principal may revoke the power of attorney at any
time. He or she must notify the agent of the revocation and
should put it in writing. It is also wise to notify all asset holders of any
revocation. The appointment of a conservator or guardian may not
immediately revoke the power of attorney. Depending on the
state in which the principal lives, the decision to revoke a
power of attorney may lie with the judge appointing the
guardian or conservator. In other states, this decision may
rest entirely with the guardian or conservator.
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Q. What kind of records should
a Power of Attorney keep?
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It is very important that you keep good records of all your
actions taken under the Power of Attorney. That is the best
way to be able to answer questions anyone may raise. The most
important rule to keep in mind is not to commingle your own
funds with the funds you are managing for the principal. Keep
the accounts separate. The easiest way to keep records is to
run all funds through a checking account. The checks will act
as receipts and the checkbook register as a running account.
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Q. Can I be compensated for my work as attorney-in-fact?
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Yes, if the principal has agreed to pay you. In general, the
attorney-in-fact is entitled to "reasonable"
compensation for his or her services. However, in most cases,
the attorney-in-fact is a family member and does not expect to
be paid. If you would like to be paid, it is best that you
discuss this with the principal, agree on a reasonable rate of
payment, and put that agreement in writing. That is the best
way to avoid misunderstandings in the future.
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