Practice Areas - Denver, Colorado Elder Law Attorneys
Estate and Asset Protection Planning
Don't lose your family home and life savings due to poor advice or planning. If you don't have answers to important questions such as what will happen to your assets when you die, who will make medical and financial decisions for you, or how will your family be taken care of if something should happen to you, you are setting your family up for personal and financial disaster.
Estate planning is the process of developing answers to these questions and giving both you and your family peace of mind and the tools to prepare for the unthinkable. A proper estate plan can also provide you with protection from creditors, allow you to avoid paying estate tax, and provide financial support for your family on your terms.
Trusts and Wills
TRUSTS: Whether you are young or old, rich or poor, everyone must have a plan to ensure that their loved ones are taken care of in the event of the unthinkable. The decision as to whether or not a person needs a trust or a will, or a combination of the two known as a testamentary trust, is based on each individual's needs and comfort level. Generally speaking, a trust may be necessary for those who:
- own real property in more than one state;
- have a need for asset protection;
- are terminally ill;
- want to avoid probate;
- own pets;
- have a potentially taxable estate; or
- want a greater control over the way that their assets are distributed.
Also, keep in mind that there are many different kinds of trusts available to suit different needs. The most common type of trust is a Revocable Living Trust. A trust is considered revocable when the person creating the trust retains the power to revoke it at any time. Upon the death of the person creating the trust, a revocable trust will become irrevocable and its contents may not be changed. A trust provides for the distribution of property owned by the trust, however a pitfall that many fall into is that although they go through the time and expense of creating the trust, they never fund the trust, or transfer any assets into the trust. If you have any questions about forming a new trust, funding a trust or whether or not your current trust meets your needs, call (303) 758-0680 or email and one of our professional attorneys will be happy to assist you.
WILLS: Wills allow you to designate beneficiaries for your assets, to name the personal representative, also known as executor, of your estate, and to designate who will be the guardian of any minor children that you may have at the time of your death. Wills, on the other hand, are documents that require going through the probate process. The probate process may be simple or difficult, depending on the estate and the individual circumstances involved. If a person in Colorado dies without a will, they are said to have died intestate. When someone dies intestate, their personal property will be distributed pursuant to the Colorado intestacy laws. If you want to leave bequests of property to people who are not related to you, it is very important to have a will directing these distributions, otherwise, those people will be left out of your estate. If you have any questions about probate or the probate process, just ask one of our professional attorneys by calling (303) 758-0680 or emailing rhughes@thehugheslawfirm.net.
Powers of Attorney and Living Wills
POWERS OF ATTORNEY: Not only should you plan for the well being of your family members in the event of your death, but you also need to make sure to plan for you! In the event of a serious illness or disability, it is important to designate a person you trust to make medical decisions on your behalf in the case that you are not able to do so yourself. If you do not name someone, your family will have to go through the costly process of having a court name someone for you through a Conservatorship or Guardianship. Having a proper medical power of attorney will allow you to name the person that you trust the most to care for you and make medical decisions on your behalf in your time of need. If you are concerned about maintaining your good credit, making sure that your property is taken care of or making sure that your business affairs are kept in order, a power of attorney naming someone to manage your financial and business affairs is another important tool to have in place. Many financial institutions require that a financial power of attorney be dated within a certain time of when your agent tries to use it. If you have an existing financial power of attorney, call your financial institutions to make sure that your financial power of attorney is still acceptable to them.
There are different types of powers of attorney, springing and immediate. A springing power of attorney is only effective upon the determination of your incapacity, generally by the certification of 2 physicians. This means that the person designated to act on your behalf will not be able to use that power of attorney until you are certified incapacitated and unable to make your own decisions. An immediate power of attorney is effective instantly upon your signing the document, which means that immediately after you sign it, the person you name will be able to transact business on your behalf. The decision as to which type of power of attorney is right for you depends on your goals and individual circumstances. If you currently have a springing power of attorney, beware of HIPAA (Health Insurance Portability and Accountability Act). If you do not have special language in your springing power of attorney to make it HIPAA compliant, the person you designate as your agent will not be able to access your medical records to determine that you have been certified incapacitated. If that occurs, your named agent will not be able to prove your incapacity in order to make the power of attorney effective and give them the power to act on your behalf. If you need powers of attorney, or have a question on your existing powers of attorney, do not hesitate to call us at 303-758-0680 or email us at rhughes@thehugheslawfirm.net. One of our professional attorneys will be happy to assist you.
Also, there are durable and non-durable powers of attorney. If your power of attorney is non-durable, it is essentially ineffective as of the time you become incapacitated. If it is a durable power of attorney, it will remain effective after you become disabled. Remember that regardless of whether a power of attorney is durable or non-durable, all powers of attorney terminate at the time the person who made the power of attorney dies.
LIVING WILLS: Don't put a family member through the pain of having to make an end of life decision for you. Do it yourself by having a Living Will in place to handle it. A Living Will may also help to take the pressure of lawsuits off of your family doctor and your local hospital. A Living Will also helps to conserve your estate and protect your assets from mounting medical bills.
Probate Administration
Undertaking the probate process can be a very daunting task. The most difficult part is often where to begin! There are several forms, and depending on the estate, several court appearances that need to be made to properly handle an estate. In addition to this, there is also the administrative hassle of distributing the estate assets, liquidating property, transferring accounts and even cleaning the house! If you are the named personal representative or executor under someone's will, this is all your responsibility, on top of handling all of your own personal affairs and keeping your life in order. The bad news is that you only get one chance to properly manage and administer the estate; if you don't properly manage the estate, the estate's beneficiaries could sue you personally.
At the Hughes Law Firm, we have a professional, caring and helpful staff of attorneys and legal assistants to help you along the way. We are there to help you whether or not you want full service assistance in managing and administering an estate or whether you just want a few simple questions answered along the way. If you are a beneficiary of an estate, have been named personal representative or executor under someone's will who is not yet deceased, or if you are a personal representative or executor administering an existing estate, call 303-758-0680 or email and our professional team of attorneys will be happy to answer any questions that you may have regarding your rights and responsibilities.
Conservatorships and Guardianships
A conservatorship is a court proceeding where someone is appointed by the court to handle another person's financial affairs. This occurs when a person does not have a power of attorney in place, or is already incapacitated and unable to execute a power of attorney. Although conservatorships in Colorado used to be relatively simple, now they are very complex and often highly contested, requiring several court appearances to get a conservator appointed. The court may appoint a family member or friend as conservator, or the Court may appoint an independent professional conservator.
A guardianship is a court proceeding where someone is appointed by the Court to handle another person's medical and personal care matters. This occurs, again, when a person does not have a power of attorney in place, or is already incapacitated and unable to execute a power of attorney. Guardianships, like conservatorships, are also expensive and cumbersome to deal with and require several court appearances to have a guardian appointed. A court may appoint a friend or family member as guardian, or may appoint an independent third party as guardian.
Medicaid and Disability Planning
Understanding Colorado Medicaid requirements, including qualifications and coverage, can be complex. The Hughes Law Firm can help you understand your Medicaid qualifications and coverage. In order to understand Medicaid qualification, you first need to know how Medicaid treats your assets. Basically, they break your assets down into two separate categories, exempt and non-exempt assets. Exempt assets are those which Medicaid will not take into account (at least for now). Generally the following assets are exempt:
- The home, no matter what its value. The home must be the principal place of residence. The nursing home resident may be required to show some "intent to return home," even if this never actually takes place.
- Household and personal belongings, such as furniture, appliances, jewelry and clothing.
- One vehicle, there may be a limitation on the value.
- Prepaid funeral plans and burial plots
- Cash value of life insurance policies, as long as the face value of all policies added together does not exceed $1,500.00 in total face amount, then the cash value in these policies is countable. Also, term life insurance is exempt.
These are the assets that Medicaid will ignore, for now. Keep in mind that Medicaid may come back after the death of the recipient to recoup from the recipients estate payments made on the recipients behalf. All other assets which are not exempt, including but not limited to bank accounts, stocks, bonds, mutual funds, IRA accounts and pensions, are countable in determining a person's eligibility for Medicaid benefits. While there are some exceptions to these rules, for the most part, all money and property, as well as any item that can be valued and turned into cash is a countable asset, unless it is one of those listed earlier as exempt.
While the Medicaid rules themselves are complicated and somewhat tricky, for a single person it is safe to say that you will qualify for Medicaid so long as you have only exempt assets plus a small amount of cash, (i.e. $2,000.00).
For a married couple, the community spouse (i.e. the one not needing nursing home care) can generally keep exempt assets and other assets worth $92,760.00. Of course, this does not mean there are not things which can be done to protect assets beyond these levels. With advance planning, there are ways that single persons can often protect 50% or more of their assets and married couples can often protect all of their assets.
If you have questions or would like to speak to one of our professional attorneys, call (303) 758-0680.
Elder Law
At the Hughes Law Firm, our full service approach to offering Elder Law services includes:
- ensuring that you have proper estate planning in place to meet your needs, minimize any potential estate tax liability and allow you to care for your family;
- ensuring that you have proper disability planning in place to protect both you and your family;
- making sure that your assets are protected from Medicaid and other potential creditors;
- assisting in the conservatorship and/or guardianship appointment process;
- assisting in the nursing home selection and/or application process;
- assisting in the Medicaid application process; and
- offering guidance with Medicaid, Medicare and/or social security issues.