Estate Planning Is More Than Writing a Will

“Elder Law” is a comprehensive area of legal practice that includes not just “estate planning” (legal documents that protect you and your family in event of “worst case scenario”) but also any legal action that is needed to plan, protect, or care for a vulnerable adult.   Elder law is one area in which an ounce of prevention is better than a pound of cure.   Everyone needs this sort of planning, sooner or later.

It’s a fact that any one of us could have an accident at any time, at any age.  (For example, if you were to be in a car crash, who would open your mail or pay your bills?)  If you haven’t drafted legal documents that govern what would happen then, (1) it would be too late to fix it yourself and (2) court action could be required to fill the gap.  This is why every person over the age of eighteen should at least have an attorney review their needs and, ideally, draft the appropriate planning documents.

Some examples of the types of documents elder law attorneys can assist with are:

  • Powers of Attorney (general and specific, durable and non-durable)
  • Health Care Powers of Attorney
  • Living Wills
  • Special Needs Trusts
  • Adult Guardianship cases
  • Adult Conservatorship cases
  • Advocacy for Care Issues
  • Referral and Resources for Care
  • Wills
  • Probate Administration

ESTATE PLANNING:  There is more to “estate planning” than filling in a will form off the internet!   Good estate planning demands a comprehensive approach to both strategy and implementation.  Think of it this way:  Anybody can give someone a ball and have them run around a football field, but it takes a bit more than that to score a goal.  In my practice, each client’s unique needs, goals, circumstances are discussed, and the entire plan is designed so that all the moving parts work together.  My goal is for each person to have a custom tailored, comprehensive plan not only for their estate, but for any time of disability or health crisis.   I want my clients to score the goal of having a plan that works well (strategy) and does what they want it to do (gets the ball over the goal line) at their time of need.

ADULT GUARDIANSHIP:  But sometimes, for one reason or another, advance planning for smooth transitions isn’t possible.  A young person is in a car wreck.  An elderly person develops dementia.  A child with mental disability is reaching the age of emancipation.  In these cases, an adult guardianship may be needed.  “What is an adult guardianship?” you might ask.   If an adult cannot take care of themselves or their finances, it is often (not always) necessary for a family member or other concerned party to petition the Probate Court to establish an adult guardianship or conservatorship.  If a probate court determines that a person is incapacitated and in need of protection, the court may appoint a responsible person to manage their care or finances.  In South Carolina, a person appointed to manage care for a person is called a Guardian.  A person who is appointed to manage finances for a person is called a Conservator.   Sometimes only one or the other is needed, sometimes both are.  Although the two roles (care and finances) are usually managed by the same person, they are separate roles and actually require two, separate court actions.

The decision to seek an adult guardianship or conservatorship is not one to be taken lightly.  The petitioner seeking to be appointed guardian or conservator must prove not only that a guardianship or conservatorship is needed for protection of the vulnerable adult, but also that the petitioner is the appropriate person to be appointed.   A finding of incapacity limits the choices and decisions the vulnerable individual is able to make.  After a person is appointed as guardian or conservator is appointed, the guardian or conservator will be held accountable by the court.  Periodic reports and accountings will be required.   Additionally, the process involves numerous professionals such as physicians, attorneys, and social workers.   Services of an attorney are generally required.

SPECIAL NEEDS TRUSTS:   Individuals who have severe disabilities often face sizeable expenses, and often these expenses are covered in whole or in part by public benefits.  Yet, any funds independently received might cause the individual to be disqualified from public benefits.  This is not only expensive, it can also cause significant disruption of the person’s continuity of care.  Special Needs Trusts are a way to enable the person to receive the benefit of funds without becoming disqualified from public benefits.

PROBATE ADMINISTRATION:  It goes without saying that assisting fiduciaries with administration of probate estates, trusts, and reports required of representative payees is part of the work of an Elder Law Attorney.

If you or a loved one has needs in the area of Elder Law or advance planning for any kind of disability, I invite you to contact me to discuss the issues further.  My goal is to provide cost effective, compassionate, and competent representation for individuals and families in need of elder law services, or appropriate referrals in cases outside my areas of experience.  (In the contact form below, please supply general information only, not any confidential information.)

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