Practice Areas
My practice focuses mainly on estate planning and elder law. Estate planning involves the discussion, preparation, and execution of wills, revocable living trusts, irrevocable trusts, special needs trusts, powers of attorney, advance directives (living wills), real estate deeds, corporations, adoptions, name changes, and other related documents and proceedings.
The practice of elder law can include the above well as incapacity planning, Medicaid planning, special needs planning, guardianships, and powers of attorney. Additionally, it may also involve personal injury, wrongful death, settling family disputes, advising Agents acting under powers of attorney and long term care planning.
For more details, please see below.
Elder Law
Elder Law covers any variety of topics that would normally concern senior citizens, their care givers, or family. It can include estate planning, incapacity planning, asset protection, Medicaid planning, personal injury, or consultation about related issues. What differentiates an elder law attorney from another attorney is that an elder law attorney should have additional knowledge and expertise about how seniors may be specifically affected regarding those issues and an understanding of the different institutions, such as the IRS, Probate Court, or Department of Community Health, that may be involved. For a more detailed explanation see The National Academy of Elder Law Attorneys' discussion of this issue.
For example, an attorney who prepares wills for clients may not be able to address how qualifying for Medicaid services, with the advent of Estate Recovery, would impact how an estate would be distributed by the will after the State of Georgia enforced a lien against real property owned by the deceased. An elder law attorney should be able to explore the details of how estate recovery may effect a distribution and even suggest alternatives, if available, to the client if a will was not the best vehicle for circumnavigating estate recovery.
Wills
A will is a legal document that directs the distribution of a person's probate assets and possessions at death. In a will the testator (the person who makes a will) appoints an executor (also referred to as a personal representative) who undertakes the task of carrying out the instructions of the will. Often, an executor will hire an attorney to help with this task. The executor is in charge of gathering the assets of the estate, keeping them safe, paying off the creditors of the estate and distributing the assets of the estate to the beneficiaries, according to the terms of the will.
A properly executed will should name the beneficiaries of the estate and describe in sufficient detail what each beneficiary will receive, when the beneficiary should receive the proceeds, and what to do if the primary beneficiary is deceased. A will is also used to name a guardian for minor children of the testator. This can be reason enough for a person with a minor child to execute a will. Without the nomination of a guardian for your minor children the Probate Judge will ultimately decide who will be the guardian of a minor child whose parents have both passed away. A nominated guardian in a will would get approval from the Judge provided there was no compelling evidence to show that appointment of the nominated guardian was not in the minor's best interest.
In order for a will to be effective, it must be executed, or signed, in the presence of two witnesses, some states require three witnesses. It is also recommended that a notary public sign and seal the will as well, in order to prove the witnesses signatures on the self proving will affidavit. The testator must also have the mental capacity to understand what they are doing, who are their beneficiaries and what is in their estate.
Probate
Probate is the process used by the Probate Court to establish or authenticate a will. To probate a will an executor files a petition with the court establishing the evidence required to authenticate the will. A probate petition requires the original will, signatures from the next of kin, and verification from the nominated executor. The Court will then issue Letters Testamentary to the executor if the petition is granted by the Court. The executor is then legally authorized to gather the assets of the deceased and administer the estate.
The Probate Court's role is to serve as a forum for disputes regarding the estate and to ensure the executor does his or her job correctly. For example, if a beneficiary of the will believes the executor is not doing his or her job, then the beneficiary can have the Probate Court force the executor to do his or her duty or have the executor removed if the executor has neglected his or her duties.
Recently, the probate process has become a topic of much debate regarding its usefulness in comparison to its costs and time delays. Some people have had terrible experiences with Probate Courts. However, their experience is usually due to an improperly drawn will or a contested will, which is not the fault of the Probate Court. Much of the bad publicity about Probate Courts comes from the cumbersome statutory requirements of Probate Courts from other states.
However, in Georgia the probate process is relatively quick, has minimal expenses, provided the will has been properly executed, the heirs are available, there are no caveats, and or difficult creditors. Many expenses and delays from the probate process arise from executors who do not do their job properly and disgruntled heirs or beneficiaries. Even though probate is not cumbersome for most, there are still those who want to avoid probate at all costs, and there are other options for those individuals, such as using a revocable living trust.
Trusts
A trust is a legal entity capable of owning property and assets. It can be either revocable or irrevocable. The ever popular revocable living trust a.k.a inter vivos trust, is a good option for people who want to avoid probate. But it can also be used to help avoid estate caveats, avoid dual probate in another state if real property is involved, and can be an excellent incapacity planning tool. Because a trust is capable of existing for an infinite period of time, it can also be used to hold your assets while you are alive for your benefit and then for the benefit of your beneficiaries after your death.
A testamentary trust is a potential trust that can be placed inside a person's will or revocable trust and activated under certain conditions. For example, a testamentary trust may be activated if a testator dies with minor children. In such a case the trust would hold the assets for the minor children. Trusts can also be used to provide for special needs beneficiaries or adults who lack the necessary financial skills to properly manage money or assets, as well as for adults who have creditor problems.
Testamentary trusts are also vital for proper estate tax planning. For married U.S. citizens with a combined estate of $2,000,000.00 or more in 2008, a trust is essential for capturing the unified tax credit of the first spouse to die. If your estate is over $2,000,000.00, in 2008 and you have not done any estate tax planning you should seek immediate tax advice regarding estate tax consequences.
Another type of trust is an irrevocable trust. Irrevocable trusts are often used for estate tax planning, gifting programs, long term care planning, Medicaid planning, asset protection planning, and special needs planning. The uses are varied, however, all irrevocable trusts are just that, irrevocable. Once such a trust is established, it cannot be changed by the grantor (person who created the trust). Using an irrevocable trust should never be considered lightly as their consequences can be far reaching and devastating, and there are no guarantees that the laws will not change.
Health Care Directives
Sometimes called a health care proxy, health care power of attorney, advance directive for health care, and/or living will, this document appoints another person to make decisions about another's health. Until recently the State of Georgia had code sections for Georgia residents that allowed for the creation of a separate health care power of attorney and living will. In 2007, the legislature passed new laws which combined the older code sections into one, thus combining the benefits of the two previous documents into the current advance directive for health care which addresses the appointment of a health care agent and makes determinations regarding end of life decisions.
Durable Financial Power of Attorney
When a person (known as the principal) is still competent, he or she can execute a financial power of attorney and appoint an agent to act on the principal's behalf. The power of attorney does not take any decision making power away from the principal, and the principal can determine when their agent would have the power to act on the principal's behalf. While this document is recommended for anyone over the age of 18 it is most often executed by senior citizens as a way to transfer authority to another family member in the event of the principal's incapacity, for financial matters.
Domestic Relations
I handle various family matters including uncontested divorces, adoptions, name changes, guardianships and conservatorships for adults and minors.
Guardianship
I represent petitioners who are attempting to have a proposed ward declared incapacitated and in need of a guardian over their person and/or Conservator of their property. Guardianship is a formal process where the Probate Court declares a person legally incapacitated and gives their decision making power to another person, usually the petitioner or the county administrator. It is similar to having the courts create a judicially supervised Power of Attorney.
A guardian can be appointed to manage either an individual's person or property. When someone is appointed to manage a person's property the court requires that a bond be posted and annual accounting for the incapacitated adult's money be posted to the court. A guardianship can often times be avoided by executing powers of attorney when a person is competent. Contested guardianships have the potential to be lengthy, complicated, and expensive.
The guardianship process can be a frustrating and humiliating process, for the proposed ward as well as the petitioner and family. Such an action should not be under taken lightly and all other options should first be considered. However, there are certain situations where seeking a guardianship over an individual can be a useful way to halt financial abuse of a senior citizen or allow a more qualified person to handle an impaired adult's finances.
Long Term Care Planning
Broadly defined, this involves the analyzing of an individual or family's situation as it may relate to long term health care and its costs. This process can involve dealing with Medicaid, the Department of Community Health, nursing homes, health care providers, the Probate Court, and other related institutions or individuals. By structuring assets within the laws provided it is possible to mitigate the potential losses from devastating long term health care costs and preserve assets for a surviving spouse or the individual whose health is in crisis.
|