Some commonly asked questions relating to Elder Law and Estate Planning, are listed below:
What is Elder Law?
According to the American Bar Association, Elder Law comprises the following areas:
- Health and Personal Care Planning;
- Pre-Mortem Legal Planning;
- Post-Mortem Legal Planning, Probate & Estate Administration;
- Fiduciary Representation;
- Legal Capacity Counseling, Guardianship, and Conservatorship;
- Public Benefits Advice;
- Insurance Matters;
- Resident Rights Advocacy;
- Housing Counseling;
- Employment and Retirement Counseling;
- Income, Estate, and Gift Tax Counseling;
- Nursing Home Litigation
- Public Benefits Administrative Litigation;
- Age Or Disability Discrimination in Employment and Housing.
What is Probate?
In the event that one dies owning personal assets in his/her name, a process must be followed to re-title the assets to the next generation. The process is called probate and requires collecting the assets of the deceased person, paying their taxes and debts, and distributing the assets to the heirs of the deceased. The process is administered by the county Probate Court and is required whether or not the deceased dies leaving a will, so long as the deceased person died owning property solely in his/her name or as a tenant-in-common. Probate is not required to transfer ownership of assets which are titled as joint assets or accounts titled as trust accounts that name a beneficiary at death. If the deceased dies leaving a will, the Probate Court also decides who will receive one’s property under the will and, who will be responsible to oversee the administration of the deceased person’s estate. The Probate Court must decide whether the will was created and signed in conformance with Vermont law before distributing the estate assets pursuant to the provisions of the will.
What is a Trust?
A “trust” is an agreement between the creator of the trust and another individual or entity. The creator of the trust is called the Settlor. The other individual or entity is called the Trustee. The trustee manages the trust assets for particular purposes as outlined in the trust agreement. The trust agreement declares who serves as trustee, what purposes the trustee is to follow in administering the trust, and how and when the trust assets and/or income is managed and distributed. A “testamentary” trust is created by a will and is effective at one’s death. An individual can amend or cancel the testamentary trust only by amending his/her will. A “revocable” trust is created during one’s lifetime by a separate trust agreement. It is effective at the time it is created. One can fund the trust during his/her lifetime or upon death pursuant to instructions contained in his/her respective will. One can amend or cancel the trust during one’s lifetime.An “irrevocable” trust is created during one’s lifetime and cannot be altered or canceled. A “special needs” trust is a trust which allows persons receiving public benefits from the State or Federal government to have monies held in a trust, for their respective benefit, without affecting the individual’s continuing eligibility for the state and/or federal programs.
What is a Power of Attorney?
A Power of Attorney is a legal document by which one person names another person(s) to act on their behalf regarding financial decisions. Such authority can be limited or general and can encompass some or all of one’s assets.
What is a Terminal Care Document or Living Will?
A Terminal Care document, also called a living will, is a legal document wherein one expresses their wishes for medical treatment in the event the person signing the document is in a terminal state, without hope of recovery from such state, and is unable to actively participate in the decision-making progress. “Terminal state” means an incurable condition caused by injury, disease, or illness which regardless of the application of life-saving procedures would, within reasonable medical judgment, produce death and where application of life-sustaining procedures would only postpone the moment of death. The document shall only be effective in the event that the person signing it is incapable of participating in decisions about their care. It is a statement of intent; it does not appoint an agent like a Power of Attorney for Health Care. The Vermont Legislature authorized the creation of Advance Directives for Health Care in Vermont on September 1, 2005 in lieu of Terminal Care documents.
What is a Power of Attorney for Health Care?
A “Health Care Power of Attorney” is a legal document, called an “Advance Directive For Health Care” in Vermont, by which one person names another person(s) to make any and all health care decisions in the event that one cannot make such “health care decisions”. “Health care decision” means the consent, refusal to consent or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose, or treat an individual’s physical or mental condition. Individuals can provide instructions as to their wishes for medical treatment in particular situations. They can also provide directions for the use or withdrawal of life-sustaining treatment, and instructions for the making of anatomical gifts, or instructions regarding the disposition of one’s remains.
What is a Guardianship?
Sometimes people cannot make financial and personal decisions for themselves because they are physically or mentally disabled. If they have not selected a power of attorney, someone else needs to be appointed by a court to handle their personal and/or financial affairs. The person needing assistance is called a respondent. The person appointed by the court is called a guardian, or petitioner. The process is called a guardianship proceeding and is administered by the county Probate Court. The Probate Court decides whether a respondent is in need of assistance, the type of assistance required, and who should be appointed as the guardian. The Probate Court also decides the scope of the personal and/or financial decision-making powers which the guardian needs for the administration of the guardianship. The guardian then reports annually to the probate court on the guardian’s supervision of the ward’s residence, assets and income, medical and dental care, public benefits, and school or employment.