Frequently Asked Questions
In this section we address some "nuts and bolts" questions posed by many of our clients. The Questions are in no particular order, but area part of our commitment to delivering straight talk and straight answers, with as little clutter as possible.
The Elder Law Attorneys at Machado and Carden look forward to addressing any of your qestions and concerns in depth. Simply call us at any of the numbers above, or complete the Client Questionaire on the side of the web page.
Choosing a Trustee
Few legal restrictions exist for trustee selection. While some states may limit the ability of individuals or corporations to act as trustee without being licensed or registered by a bank or other appropriate agency, few other restrictions exist. The most obvious choices, along with some of the benefits and disadvantages of each, are listed below (Robert B. Fleming, Choosing a Trustee, Special Needs Trusts, Stetson College of Law, October 22, 1999):
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Your Retirement Benefits
The stock market growth of the past few years has added tremendous value to the retirement plans of many Americans and made it much easier for them to maintain their standard of living once they stop working. However, it has made one of the more difficult financial and legal planning decisions facing most Americans that much more important. Not only are the mandatory withdrawal rules complicated, but it's impossible to predict how long you're going to live. Choices you make today, in retrospect, may appear brilliant or badly mistaken, depending on your lifespan and that of your spouse.
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Rules of Medicaid Nursing Home Eligibility
For all practical purposes, in the United States the only "insurance" plan for long-term nursing home care for many seniors is Medicaid. Medicare only pays for approximately 7 percent of skilled nursing care in the United States. Private insurance pays for even less. The result is that most people pay out of their own pockets for long-term care until they become eligible for Medicaid. While Medicare is an entitlement program, Medicaid is a form of welfare. So to be eligible, you must become "impoverished" under the program's guidelines.
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What is a supplemental needs trust?
Supplemental needs trusts (also known as "special needs" trusts) are drafted so that the funds will not be considered to belong to the beneficiary in determining his or her eligibility for public benefits, such as Medicaid, Supplemental Security Income (SSI), or public housing. These trusts are designed not to provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public assistance funds, such as education, recreation, counseling, and medical attention beyond what is required simply to maintain an individual.
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What is the probate process?
Probate is the process supervised by the probate court by which a deceased person's property, known as the "estate," is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about a year. However, substantial distributions from the estate can be made in the interim.
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Will Medicare pay for the cost of my care if I need nursing home care?
No.
Medicare will only pay for a maximum of 100 days in the skilled nursing facility if you meet certain requirements. You must have moved to the nursing home within 30 days of the hospital discharge and the hospital stay must have lasted at least three (3) days. Also, if you receive a skilled level of care, Medicare will pay completely for the first twenty (20) days.
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Does everyone need a power of attorney and health care proxy?
Absolutely.
These documents allow you to designate who will make decisions for you should you become incapacitated. Without them, it may be necessary for your family to become your legal guardian to the probate court which can be time consuming and expensive.
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What is Guardianship?
Guardianship is a legal relationship whereby the Probate Court gives one person (the guardian) the power to make personal and financial decisions for another (the ward). A guardian may be appointed when a Probate Court determines that an individual is unable to care for herself and her estate by reason of mental illness, mental retardation or physical incapacity.
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What is a power of attorney?
A power of attorney is the grant of legal rights and powers by a person, the "principal", to another, the "agent" or "attorney-in-fact". The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial and business matters. And if you want to choose your attorney you should find some reviews like https://divorceservicesreviews.com. The attorney-in-fact can do whatever the principal may do -- withdraw funds from bank accounts, trade stock, pay bills, cash checks -- except as limited in the power of attorney.
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