Frequently Asked Questions
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What is Elder Law?
Elder Law attorneys define our practice by the population we serve. The rights and
requirements of the senior and disabled population are not limited to one issue but cover a
wide variety of needs.
“Under this holistic approach, the Elder Law practitioner handles general estate planning issues and counsels clients about planning for incapacity with alternative decision-making documents. The attorney would also assist the client in planning for possible long-term care needs, including Medicaid, Medicare, nursing home care. Locating the appropriate type of care, coordinating private and public resources to finance the cost of care, and working to ensure the client's right to quality care are all part of the Elder Law practice.” National Academy of Elder Law Attorneys.
Do I surrender any rights when I execute a power of attorney?
The answer is a common law school answer – It depends. There are two types of Powers
of Attorney – Standing and Springing. A standing power of attorney is effective at the
time of signing. Your agent under the power of attorney can exercise the powers that you
authorize – just like an insurance agent or a real estate agent, A springing powr of
attorney provides the authority to the agent only if some event happens in the future –
like if your doctor says that you are not able to make good decisions on your own.
When you sign a standing power of attorney for medical decisions, you may be giving up
the right to say whether you are placed in a nursing home or an assisted living facility.
When you sign a power of attorney for financial decisions, you may be giving your agent
the right to spend your money.
The real test for any agent under a power of attorney is “Will this person honor my wishes and let me decide” ”If I were to give this person $1,000,000.00, do I trust they would spend it on me and not on themselves?”
What is mediation?
Mediation is a process in which a neutral individual, the mediator, helps two disputing
parties communicate. The goal of mediation is for both parties to reach a deeper
understanding of the issues in dispute and come to an agreement.
Some key elements of mediation are:
(1) Mediation is a voluntary process – Nobody can force you to participate. Either party is free to end the mediation at any time and for any reason. (2) Self-responsible and informal – Mediation allows both parties to reach an agreement in an informal setting, without going to court.
(3) Confidential – By law, any statements or proposals for settlement made in mediation are confidential. What anyone says in mediation cannot be used against them later in court or in some other setting outside the mediation.
(4) Impartial – The mediator is responsible to help both parties reach their goals. The mediator cannot favor one party’s interests over the other’s.
Should I try mediation of family disputes in will contests or guardianships?
Absolutely you should. Studies show that agreements reached in mediation are more
likely to be kept and significantly reduce family tension. Mediation is conducted by a
third party who does not have a stake in the outcome. A good mediator can provide
ideas, help communication, and may resolve conflict with minimal cost.
Abraham Lincoln said, : Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Is it illegal to transfer assets for the purpose of obtaining Medicaid benefits?
Yes. Any gift or transfer to another person for the purpose of obtaining Medicaid is illegal, even though it is a legal gift for tax purposes. If you give away any assets during the 60 months prior to applying for Medicaid, you will incur a penalty up to five years of no benefits. You may lose benefits for life if you are found to have committed Medicaid fraud. You need to contact a Medicaid lawyer to prevent losing benefits. However, there are certain transfers that are legal because they are for the purpose of providing assets for the spouse or for disabled children.
If I must go into a nursing home, are they going to take my house away?
No. A nursing home or assisted living facility has nothing to do with what happens to your assets. As stated above, there are some instances in which you can give the house to a family member without a penalty. You can also keep your house throughout your life, even if you are not giving it away by using a little-known provision of Medicaid law called an intent to return home. This intent is subjective, meaning that you may have the ability to return home, but you intend to go home even if it is not possible. Contact me to discuss protecting your assets from Medicaid estate recovery.
What is the difference between a guardianship and a conservatorship?
Because Guardianship and Conservatorship is complicated, you should consult with an
Elder Law Attorney.
In Colorado, a Guardianship is a court appointed person to make decisions for you when you cannot. This person may be a family member or a professional person. You must be incapacitated to have a guardian. The definition of an incapacitated person under the law “means an individual other than a minor, who is unable to effectively receive or evaluate information or both or make or communicate decisions to such an extent that the individual lacks the ability to satisfy essential requirements for physical health, safety, or self-care, even with appropriate and reasonably available technological assistance.” Colorado Revised Statutes Section 15-14-102(5). A Conservator is a court appointed person who handles your finances for you. This person may be a family member or a professional, but under Colorado Law, a professional cannot be both a Guardian and a Conservator. A person does not have to be incapacitated to have a conservator; however, the standard for appointing a Conservator is a court determination that:
“(I)By clear and convincing evidence, the individual is unable to manage property and business affairs because the individual is unable to effectively receive or evaluate information or both or to make or communicate decisions, even with the use of appropriate and reasonably available technological assistance, or because the individual is missing, detained, or unable to return to the United States; and
(II) By a preponderance of evidence, the individual has property that will be wasted or dissipated unless management is provided or money is needed for the support, care, education, health, and welfare of the individual or of individuals who are entitled to the individual's support and that protection is necessary or desirable to obtain or provide money.” Colorado Revised Statutes section 15-14- 401.
Do I need guardianship if I have power of attorney?
You may need a guardian if your agent under the power of attorney cannot provide you with the care or decisions that you need for your health, safety, or welfare. For instance, a wife names her husband as her agent and then she suffers from Alzheimer’s. Husband has a stroke and there is no other person named to be the successor agent. A Guardian would have to be appointed because the wife is not able to sign any contract due to her dementia.
How long does guardianship last?
There are two types of Guardianship – an Emergency Guardian and a Permanent Guardian. An emergency Guardian can be appointed by the court to take care of an immediate situation but does not last longer than 60 days without the court’s approval. A Permanent Guardian is appointed by the court for as long as there is a need for a Guardian. For instance, say your mother has a stroke and is in a rehabilitation facility. At the time of the stroke, she cannot make any decisions due to her condition but she recovers to the point that she is able to make sound and reasoned decisions. She can go to the court and ask that the guardianship be terminated due to her improved condition.
What is a "probate estate" and what are "non-probate assets"?
When you pass away, everything you own is an asset, but not every asset has to go through the court. A probate estate is all assets, whether they are disbursed by the court or not. Non-Probate assets are those that can be distributed without a court order. These types of assets are held in joint tenancy with right of survivorship or have a beneficiary designation. For instance, if your house is owned JTWROS, that means that the person who survives owns the home in joint tenancy with right of survivorship. In Colorado, your can designate a beneficiary to own your home after you pass away by using a Beneficiary Deed. In either case, JTWROS or Beneficiary Deed, once the owner dies, you can take a Death Certificate to the clerk and recorder and the ownership of the home is transferred without going through the court probate process.
What is a small estate affidavit?
If your assets total less than a certain amount (in 2019, $64,000.00) then your personal representative can use a form provided on the Colorado Supreme Court Website called “Collection of Personal Property by Affidavit Pursuant to § 15-12-201, C.R.S.” You cannot use this form to distribute real estate or a car, but you can use this form to close bank accounts or distribute other personal property.
What happens to your assets when you die without a will in Colorado?
If you are married and have no children and your parents are not living, your spouse will inherit your entire estate. However, if there are parents or children still living, there is a different distribution that changes each year to reflect cost of living adjustments. The Colorado Secretary of State must publish these changes in January each year. The better idea is to have a will and to plan your asset distribution in advance.
What is informal probate?
In Colorado, we can open and close an estate without going through the court process. This is called Informal Probate. In order to go through informal probate, the estate needs to be one that is not contested or have a problem that would require court approval. If the estate can be probated without court, the Personal Representative can follow the instructions on the Colorado Supreme Court Website and fill out the proper forms to file. Once the papers are filed, the Personal Representative must file an inventory, publish the notice to creditors, and distribute the inheritance. In one year from the date of death, the Personal Representative then files a final inventory and a request to close the estate. All of this can be done without going to court.
Do I need a will or a trust?
There are several factors to review to determine whether you need a trust. Even if you
have a trust, you will also have a will. In Colorado, there are several ways to avoid
probate, so if the only reason you want a trust is to avoid probate, you probably do not
need the additional expense of trust preparation.
(1) If you own real estate in more than one state, then you'll need to establish a Trust and deed the out of state property into the trust. Otherwise, your family may be faced with two separate probate estates —one in the state where you live, and a second in the state where your real estate is located, which is referred to as an ancillary estate. (2) If you have specific instructions regarding your estate, i.e. who can live in your house or use your business assets, you may need a trust to make sure your wishes are followed. (3) If you have a second or third family, you may need a trust to be specific as to what happens to each member of the family, i.e. your children from a previous marriage, your stepchildren, previous wives and separation agreements, etc.
(4) If you are lucky enough to have a large estate, a farm or a ranch, or need some tax planning, you may need a trust.
What factors are considered in determining undue influence exists?
The Colorado Supreme Court determined that there are 4 elements to prove undue
(1) whether there was a confidential relationship;
(2) whether the preparation of the will or other document was under the direction of the influencer;
(3) whether the influencer would enjoy benefits from the will or gift proposed when, at the time of the signing of the will or making the gift, the person under the influence was fatally ill, mentally and/or physically; and
(4) whether the influencer kept the execution of the will or the gift secret from other members of the family.