Estate Planning & Elder Law

Last Will and Testament

According to studies, over 60% of Americans do not have a will.

If you do not have a will, your assets will be divided according to state law. Having a will allows you to select your personal representative and divide your estate according to your preferences. A will also allows you to name a guardian and trustee for your minor children.

Should you write your own will or download a form from the Online?

Oftentimes, this attempt to save money does not provide what you need or save you money, particularly when a will is poorly drafted or does not reflect Tennessee / Kentucky law. There is a vast difference between simply filling out a fill-in-the-blank template from a website and having a confidential consultation with an estate lawyer.

Senior adult spouses grandparents reading documents, estate planning & elder law

As an experienced estate attorney, Olivia Wann provides guidance on understanding the law and how your family can avoid estate planning mistakes that can cause family tension, broken relationships, devalued assets, and a lost legacy.

Olivia will discuss various estate planning tools if you have children from a previous relationship and are considering re-marriage. These include a pre-nuptial agreement, a revocable trust that becomes irrevocable on death, and a stand-alone irrevocable trust.

Olivia will also give attention to unique estate planning needs if you have a special needs child. The goal is to ensure that valuable government benefits are not disturbed while assuring that supplemental needs are being satisfied. She will also help you plan for a chemically dependent child to avoid depletion of an inheritance.

Options help you accomplish your estate planning objectives.

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General Durable Power of Attorney

A will is operative on death through the probate process. A general durable power of attorney allows you to designate an agent to act on your behalf during incapacity. Typically powers include banking, real estate, and personal property transactions, business operating transactions, retirement plan transactions, access of a bank deposit box. Additonally, other powers depending on your personal situation. Having a general durable power of attorney known as a “POA” is important particularly to allow the agent to gift or otherwise spend down your estate for Medicaid eligibility and planning.

If the documents are signed during competency, this may prevent a costly conservatorship action.

Health Care Power of Attorney

The purpose of creating a healthcare power of attorney is to alleviate uncertainty that may arise concerning decisions about your medical care, promote family harmony, and clarify instructions to your healthcare providers. Your Agent’s authority to act on your behalf concerning your medical care includes:

Decisions concerning artificial life support, medical treatment, surgery, and other medical procedures
Artificial nourishment and hydration
Resuscitation decisions (including Do Not Resuscitate [DNR] orders and Cardiopulmonary Resuscitation [CPR] directives)
Amputation of limbs
Blood transfusions
Experimental drugs and medical procedures
The administration of pharmaceutical agents
Arrangements for your long-term care

Elder Law

Elder lawyers think of Medicaid as an interest-free loan.

If Medicaid pays for your long-term care, the State of Tennessee wants repayment after your death from remaining assets that are probated.

Your home is an exempt asset to qualify for Medicaid; however, recovery of benefits is paid out by a claim made against a probated estate. There are exceptions to a Medicaid recovery, such as having 1) a disabled child or blind child living in the home, or 2) a sibling living in the home continuously for 1-year that prevented you from requiring long-term care, or 3) having a child living in your home continuously for 2-years that prevented you from requiring long term care.

Some elderly folks have wondered, “Why not give away the house now to my kids? My children will get the house anyway.”

If you give away your house, you lose control of the asset. Your benefits may be penalized, meaning you may end up paying out of pocket for your long-term care for a period of time. Your children also lose the step-up basis regarding capital gains. The asset is also at risk for your children’s creditors, including bankruptcy. So what seems like a great idea is not so great after all.

Revocable Living Trust

Estate planners use special tools such as a Revocable Living Trust, an Irrevocable Trust, and a Testamentary Special Needs Trust. A Revocable Living Trust allows you, as the Grantor, to create and manage your trust. If you lose competency, your successor Trustee can manage the Trust and ensure your assets are maintained. This is valuable in scenarios where one spouse may not be capable of managing his/her financial affairs. The Revocable Living Trust avoids probate and is recommended in cases where individuals own property in more than one state to avoid ancillary probates. The Revocable Living Trust, however, does not provide asset protection.

Irrevocable Trust

The Irrevocable Trust allows the Trustee to manage the asset and such assets are now owned by the Trust, not the individual. As such, the asset can achieve protection. This is an effective tool for Medicaid planning, family planning for blended families, protecting family farms, as well as other numerous examples.

Testamentary Special Needs Trust

A Testamentary Special Needs Trust is an effective estate planning tool that can avoid a Medicaid recovery and make provisions for caring for a special needs spouse or child without disrupting government benefits.

Mature Couple Meeting with Financial Advisor, who is pointing with pencil to some contract details.

Attorney Olivia Wann knows how important it is for you to care for your loved one while preserving the assets you have worked so hard to attain. Schedule your appointment today to learn how you can plan your estate.

CarePatrol™

CarePatrol is a free service for families with older adults who are no longer safe at home. We help find the right in-home care, independent living, assisted living or memory care.