Frequently Asked Questions

Why would I or my parents need an elder law attorney?

What is the difference between elder law attorney and an estate planning attorney?

What makes us different?

What is estate planning?

What is a living trust?

What is a will?

What is probate?

What is durable power of attorney?

What is an advanced health care directive?

What is Medi-Cal planning?


Why would I or my parents need an elder law attorney?

We have discovered that, in spite of good intentions, most of us do not plan ahead for old age and all it brings. After all, there are a lot more pleasant things in life to think about.

In the best of all worlds, we would sit down and decide to make this journey into senior citizenship as easy as possible before a crisis arises and takes those decisions from us. Our expertise in this office is focused on protecting the quality of life, financial security, and independence of older citizens.

There are important and overpowering issues to tackle. Unfortunately, if ignored, these matters are left to others, sometimes strangers. The people who love you are stuck with all the consequences and you become uncomfortably aware that you may not receive the care and lifestyle you deserve.

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What is the difference between elder law attorney and an estate planning attorney?

Estate Planning Lawyers are concerned with preserving your assets with focus on taxes, financial plans, wills, trusts, and investments. Our Elder Law Attorneys are very well versed in this field, but in addition have expanded their expertise to include: health care directives, long-term-care planning, asset spend-down, and Medi-Cal/Medicaid planning. Elder Law is also concerned with converatorship and guardianship. You also need an Elder Law Attorney when Medicare and Medicaid have been denied, or your physician has a problem with an HMO that has been denied care.

In a nutshell, it is the Elder Law Attorney who has the ability to arrange care for you once you can't do it yourself, or helps the person you have designated. It's your choice just how you want that care to proceed, and what the hospital may or may not do regarding life-saving measures. Finally, you know how important it is that any assets left after your final expenses are dispersed according to your wishes.

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What makes us different?

Our office is unique in that we have a network of services of support, including: social workers, county and other government agencies, caregivers, physicians, nursing home or residential care centers to make sure that no one slips through the cracks of bureaucracy.

In these complex times, more seniors have to deal with incapacitating illnesses and decreasing financial resources. We find although your physician is the best source for your physical care, he or she may not be aware of other resources that you may need. It is our goal to create a web of mutual support between your financial, medical and personal allies.

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What Is estate planning?

Estate planning is the process by which an individual or family arranges the transfer of assets in anticipation of death. An estate plan aims to preserve the maximum amount of wealth possible for the intended beneficiaries and flexibility for the individual prior to death while carrying out the person's own wishes for the disposition of his property upon his death.

Estate planning takes into account the laws of wills, taxes, insurance, property, trusts, Medi-Cal and business planning, so as to gain maximum benefits of all laws. Estate planning also addresses your welfare and needs, planning for your own personal and health care if you are no longer able to care for yourself.

Wills and trusts are common ways in which individuals dispose of their wealth. Trusts, unlike wills, have the benefit of avoiding probate. Sometimes it will be useful to make gifts while the donor is alive in order to minimize taxes. A power of attorney and an advanced healthcare directive are other documents needed to fully address your welfare and needs.

Before seeking advice

Before you seek the advice and services of a qualified estate planning attorney you should consider these question.

Planning and managing your estate

A qualified estate planning attorney will discuss with you the various documents that will comprise your estate plan, and will provide advice concerning such issues as title to assets, taxes, and the prudent management of your estate. If your estate is large, your attorney will discuss with you various ways to preserve your assets for your beneficiaries and to reduce or postpone the amount of estate tax which otherwise might be payable on your death. Planning for the resources needed to pay estate tax at your death is another important part of the estate planning process.

Estate planning is a dynamic process. Just as people and assets and laws change, it may well be necessary to adjust your estate plan every so often to reflect those changes. If you already have an estate plan, it is even more important that you have it reviewed by an estate planning attorney when you get married, divorced or have a new baby.

Conservatorship

If a person does not create an estate according to law, then California law provides for a court to appointment someone to take responsibility for your personal care and assets when you cannot do so yourself. This is called "conservatorship".

Intestate succession

California law also provides for the distribution of assets in your name to your heirs pursuant to a set of rules to be followed if you die without a will. This is known as "intestate succession".

Dying without a will

Contrary to popular belief, if you die without a will, everything does not automatically go to the state. Your relatives -- and in some cases the relatives of your spouse -- will have priority in inheritance ahead of the state.

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What is a living trust?

A living trust is a legal document that contains instructions for what you want to happen to your assets when you die and when you lose the mental or physical capacity -- such as Alzheimer's, stroke, and heart attack -- to manage your assets. When you set up a living trust, you transfer assets from your name to the name of your trust. All the assets transferred are no longer your property, but are assets of the trust. As such they are not subject to probate when you die, and they are not subject to court-imposed conservatorship if you become incapacitated. As trustee of your trust, you keep full control of all trust assets. During your lifetime, you can do anything with your assets that you could have before making the trust, by changing (or even canceling) your trust.

Advantages of having a trust

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What is a will?

A will is a legal document that contains instructions for what you want to happen to your assets when you die -- either by outright gift or in trust -- and is effective only upon your death.

In a will, you may nominate an executor, and the guardians of your minor children and their estates.

Only assets or property interests in your name alone at the time of your death will be subject to the will, and subject to the administration of the probate court, generally in the county where you were residing at the time of your death.

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What is probate?

Probate is the legal process through which, after your death, a court sees that your debts are paid and your assets are distributed according to your will, if you have left one. If you have not left a valid will, then your assets are distributed according to state law.

Advantages of probate

Disadvantages of probate

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What is durable power of attorney?

A durable power of attorney for property management is a legal document, in which you appoint another individual (the "attorney-in-fact") to make property management decisions on your behalf. The attorney-in-fact manages your assets without court supervision. The authority of the attorney-in-fact to manage your assets ceases upon your death.

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What is an advanced health care directive?

A durable power of attorney for property management is a legal document, in which you appoint another individual (the "attorney-in-fact") to make property management decisions on your behalf. The attorney-in-fact manages your assets without court supervision. The authority of the attorney-in-fact to manage your assets ceases upon your death.

An advanced health care directive is a durable power of attorney for health care -- a legal document that allows your attorney-in-fact to make health care decisions for you when you can no longer make them yourself. It may also contain statements of wishes concerning such matters as life sustaining treatment and other health care issues and instructions concerning organ donations, disposition of remains, and your funeral.

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What is Medi-Cal planning?

We assist our clients with various options for dealing with the expense of long term care, including lifetime care agreements, long term care insurance, reorganization of assets and qualifying for veteran’s and Medi-Cal benefits.

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