Nevada Elder Law Lawyer
Elder law is the area of legal practice that supports older Americans. The three main components of elder law are estate planning and administration, Medicaid planning (i.e. nursing home planning), and guardianships.
If an elderly person wants to stay in control of future decisions as they age, they need their own estate plan; while each estate plan should be customized to fit the individual’s situation, these are the basic components of an estate plan: will, revocable living trust, financial power of attorney, health care power of attorney, living will, and organ donation authorization.
If the elderly person does not have their own estate plan, the state of Nevada and the courts will essentially make one for them. For example, if there is no will, the courts will decide who administers the estate and handles the debts. State law will determine who gets the assets. In addition, if there is no financial power of attorney or trust, the court will decide, through a guardianship proceeding, who will be in control of the person’s finances. And, it may not be who the person would want; this is how they may lose control of their choices.
Estate administration is the settlement of a person’s estate after death. The executor (i.e. personal representative) gathers, protects, values, and manages the assets; pays last bills; files all appropriate tax returns and distributes assets to the beneficiaries, all while following the instructions of the probate court.
Medicaid planning (i.e. nursing home planning) is the practice of helping elderly people qualify for Medicaid paid long term care. Medicaid is a federal program, administered by the states, that provides health care to low-income people. Often special trusts, caregiver contracts, and gifting programs are used as part of a Medicaid plan.
Guardianship proceedings, also called conservatorship proceedings, are mandated when an elderly person becomes disabled or incapacitated and can’t manage their day-to-day business affairs but they have not executed a legally valid financial power of attorney or revocable living trust. The court hears evidence, determines whether the person is indeed incapacitated, and if so, appoints an individual to take over and manage their finances. This person is called a “guardian.” The guardian can be a family member or a stranger, such as a local attorney. The guardian must report back to the court periodically and follow all court instructions.
Related elder law legal issues include fraud, consumer protection, discrimination, elder abuse and neglect, end-of-life planning, medical care, advanced health care directives, disability, Medicare, Social Security, retirement planning, long term care, real estate, landlord/tenant, and tax issues.
Elder Law FAQs
Can my executor sign my name if I am sick?
No. An executor only has authority after you die. This is because in a will, a testator/testatrix (i.e. you) provides instruction as to who shall serve as executor (i.e. personal representative) to settle the estate and how assets will be distributed. A power of attorney, not a will, is used to provide assistance, such as signing documents for you, while you are alive, but sick.
How can I avoid going to court?
To stay in control of your assets and avoid court interference as much as possible, you should have a strong, up-to-date estate plan in place. This includes having an executed will, health care power of attorney, and a financial power of attorney. Unsigned or incomplete documents do not help – be sure you finalize things. Let your family know that you’ve done estate planning, where you’ve stored your documents, and who to contact (i.e. the attorney that helped prepare your documents) should you become incapacitated or die.
Will my revocable living trust protect my assets from the nursing home?
No. While your trust can be used to provide asset protection for your beneficiaries after you die, it cannot be used to protect your own assets during your lifetime. You need Medicaid planning to protect assets from the nursing home.
Elder Law Glossary
A living will is an advanced medical directive used to tell your family and medical providers what end-of-life medical decisions you have made if you are unable to convey them at a particular time, such as whether you want them to use life support for you if necessary. For example, you must execute a living will if you don’t want to be hooked up to machines if you are ever in a persistent vegetative state or irreversible coma.
Elder abuse and neglect includes physical, emotional and financial abuse of an elderly person.
Physical abuse and neglect and emotional abuse may be in the form of threats, hitting, slapping, withholding food and medicine. The signs of physical and emotional elder abuse are malnutrition, dehydration, bruises, cuts, sores, scars, sprains, broken bones, frequent falls and injuries, injuries that don’t heal, emergency room visits and changes in behavior such as depression, anxiety, withdrawal, angry outbursts, fear, shaking and rocking. Financial abuse includes forcing or manipulating an elderly person to give away money and/or stealing money or belongings. Signs of financial abuse include unexplained changes in estate planning documents, a new friend with unusual interest in the elderly person, large ATM withdrawals, changes in financial activity the elderly person can’t explain, changes in bank or investment account ownership or beneficiaries, unusual charges on credit cards or debit cards.
An elderly person is “incapacitated” or “disabled” if they are unable to manage day-to-day affairs such as paying bills, managing assets and making financial decisions. In addition, an elderly person may be deemed to be incapacitated or disabled if they cannot provide informed consent for medical treatment.