Adults over 60 years of age have diverse legal needs and face many unique legal issues. Elder law and estate planning are both fields that use legal tools to ensure that individuals can retain control over financial and medical decision-making as they age. However, not all estate planning attorneys have the necessary knowledge and skill to handle elder law issues effectively, so selecting an attorney with experience in elder law is crucial to achieving the best outcome.
Some people mistakenly believe that elder law is only a concern for seniors with complex life situations, such as high-value estates or terminal illnesses. However, understanding elder law is crucial for all seniors to protect themselves and their assets no matter what tomorrow brings. To safeguard your rights and wishes, call our firm. The Indio elder law attorneys at Bochnewich Law Offices offer a comprehensive set of services designed to assist senior citizens in Southern California.
What Are Elder Law Issues?
Elder law planning gives people the power to make decisions in advance, ensuring their wishes are faithfully executed if they should become unable to speak for themselves. A qualified elder law attorney can help you with everything from protecting your medical rights to asset distribution and setting up trusts.
The most common elder law issues are:
Estate planning and administration
Planning for long-term care, disability, and special needs
Elder abuse, neglect, and financial fraud
Estate Planning and Administration Help
Estate planning refers to the systematic approach of deciding how your assets and property will be preserved, managed, and distributed after death. An estate plan will ensure you have clearly outlined your wishes in a legally binding and enforceable manner, minimize estate taxes, and protect your beneficiaries and assets from poor choices or undue influence. Many people are familiar with the concept of a will, and this is an important document, but it is only a starting point for comprehensive estate planning.
If you die with only a will, your loved ones will be forced to undergo a court-supervised process called probate to confirm the validity of the will, and assets may only be distributed after probate is completed. The probate process is complicated, expensive, and usually takes at least a year—or even longer if anyone contests your will.
A comprehensive estate plan should include:
Last Will and Testament
A will provides an inventory of your assets and property, outlines your intentions for their distribution after your death, designates beneficiaries that will receive an inheritance, and explains which parts of your estate they will receive and under what conditions. It may also include instructions for guardianship of minor children or other dependents. In a will, you name a specific person to serve as executor of your estate and manage your financial affairs, such as paying debts and filing tax returns. This person has the fiduciary duty to follow your instructions and only act in the best interest of your estate and your beneficiaries.
Dying without a will (known as dying intestate) effectively surrenders control of your estate to probate court. A judge will make the final decisions about your property using California’s intestacy succession laws. According to these laws, your property will be strictly divided among your closest surviving family members at the time of your death. If you have no surviving spouses, children, parents, or siblings, your property will go to more distant relatives, such as nieces and nephews, grandparents, aunts and uncles, great aunts and uncles, cousins, and so on.
Durable Financial Power of Attorney
A durable financial power of attorney is a written agreement that gives a person of your choosing (an agent) the authority to handle your financial and business affairs and make decisions on your behalf. If you become mentally or physically incapacitated or otherwise unable to make sound decisions yourself, this agent can take certain actions. These include accessing financial documents, transferring funds in bank accounts, depositing Social Security checks, paying bills, managing investments and retirement accounts, filing tax returns, and signing legal documents. You can give the agent power of attorney to perform specific single transactions or give them full control of your affairs.
Revocable and Irrevocable Trusts
A trust is a type of fiduciary relationship in which one party (the trustor) gives another person or entity (a trustee) the right to hold assets and property for the benefit of designated beneficiaries. There are many types of trusts, but the most common are revocable and irrevocable trusts. A revocable trust can be modified or revoked at any point during your lifetime, and you can still access the property titled to the trust or remove it. This kind of trust can allow your executor to settle your estate without supervision from probate court. However, the property within the trust may still be subject to creditor claims against your estate. An irrevocable trust cannot be modified or revoked after it has been created. The property within the trust is protected from claims by creditors or beneficiaries and estate taxes.
Planning for Long-Term Care, Disability, and Special Needs
Another area of elder law focuses on putting support systems in place to protect seniors if they or can no longer take care of themselves, such as in the event they become mentally or physically incapacitated. Long-term care planning can include designating approved nursing homes or assisted living facilities, purchasing long-term health insurance, and other activities.
If you have a disability or special needs, you likely will be approved for benefits. You and your family members may be entitled to government benefits, such as California Social Security disability benefits. However, you still need to plan in advance to confirm you are qualified for these benefits and will receive adequate assistance to meet your healthcare needs.
Beyond the financial considerations of long-term care, end-of-life planning should also include your intentions for medical treatment. This ensures you remain the ultimate decision-making power over your healthcare and prevents uncertainties, disagreements, and unnecessary suffering for your family members when they are forced to make these difficult decisions themselves.
Healthcare directives are legal instruments that instruct your family members and medical professionals on how you would like to be cared for if you are unable to communicate your wishes. These directives include a living will and durable medical powers of attorney. A living will is a special legal tool that states the kind of medical treatment you want to receive in certain situations, as well as the treatments you wish to decline, including life-extending treatments if you become terminally ill. This is paired with a durable medical power of attorney to create a comprehensive plan, which designates a specific individual to make all other healthcare decisions on your behalf.
If you do not create durable powers of attorney and become incapacitated, a family member or friend must petition for a conservator (guardian) to be appointed by the court on your behalf. If no one is willing or able to serve in this role, the court will appoint a responsible person or agency to this role and stipulate their obligations, how they will be paid, and how they should administer the estate.
A conservator can serve a person (the conservatee), their estate, or both. Duties to the conservatee include arranging for care and protection, making living arrangements, and taking care of meals, clothing, housekeeping, personal care, medical treatment, and other components crucial for general well-being. Duties to the estate include managing finances, compiling and protecting assets, paying bills, and making investments. Conservators must keep the court informed of their actions and the status of the conservatee.
Elder Abuse, Neglect, and Financial Fraud
Unfortunately, seniors become more vulnerable to abuse, neglect, fraud, and other kinds of crimes as they age, especially in nursing homes. Elder abuse inside a care facility can take many forms, including physical, verbal, and sexual abuse, and can be perpetrated by nursing home staff members or other residents.
Outside of nursing homes, other individuals may also commit financial fraud against seniors. This can include phishing, texting, home repair, or lottery scams, embezzling money, creating fraudulent legal documents, posing as part of the Social Security Administration to obtain benefits information, or through other scams, some of them very complex. This sort of fraud most often occurs through telemarketing, mail, or Internet communication.
Why You Need a California Elder Law Estate Planning Attorney
An Indio elder law attorney can help you handle a variety of elder law issues, including:
Drafting end-of-life planning documents such as wills and powers of attorney
Reviewing and updating existing legal directives to ensure they are accurate
Appointing guardians for your minor children or dependents with special needs
Advising you on the tax consequences of various inheritance strategies
Setting up trusts to protect assets or fund a loved one’s care and/or education
Helping executors with administration of the estate
Providing representation during probate or estate litigation
Planning for long-term care, disability, and special needs
Navigating Medicare, Medicaid, Social Security, and other benefits programs
Establishing a conservatorship for management of your personal affairs and physical care
Pursuing legal action after elder abuse, neglect, or fraud
Handling any other matters that could impact your personal or estate interests
Our Law Group Can Help Protect Your Future
Contact us today to discuss your case. When you hire Bochnewich Law Offices to represent your interests, you don’t just get a lawyer. You’re investing in the peace of mind that comes with knowing your rights will be protected, your last wishes faithfully carried out, and your loved ones adequately supported.
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I have to say that Peter is also an unusual attorney in that he is compassionate and has a sense of what is just and appropriate; he will be honest and forthright with his client, but will absolutely fight to right a perceived injustice. I can't say enough great things about this attorney.
With Peter’s guidance, we were able to navigate through a very stressful situation. Throughout the process, Peter was always available for questions and prompt with the right answers. At no time did we feel alone in this process. His compassion and experience were invaluable, and we were able to right a terrible wrong. I would highly recommend attorney Peter Bochnewich for your legal needs.”
Throughout a long and sometimes difficult legal battle, my sister and I were constantly impressed by the depth of Mr. Bochnewich’s understanding of the law, his energy in applying it, and his intelligent and effective presence in court. We were also deeply appreciative of his warmth toward us and the deeply ethical behavior he exhibited both in and out of court. In the end, Mr. Bochnewich’s skills were responsible for removing the executor from the estate, and in our receiving a seven-figure judgment. I would not hesitate to recommend Peter Bochnewich to anyone seeking highly skilled legal assistance with estate and inheritance issues.”