Trust & Estates
Elder law takes its name from the clients it serves – senior citizens and their families. Due to the nature of their work, elder law attorneys also handle the unique legal issues of persons with disabilities. It is recognized by the American Bar Association’s Standing Committee on Specialization as a holistic approach to the practice of law, closely akin to estate planning, trusts and estates, that focuses on the concerns of people as they age including:
Asset protection and estate planning (wills, living and irrevocable trusts)
- Asset management (durable general powers of attorney, living trusts)
- Health care planning (health care powers of attorney, advanced directives, and POLST documents)
- Legal incapacity (guardian and conservatorships and how to avoid them)
- Estate administration (formal and informal probate, probate alternatives, trust administration, etc.)
- Fiduciary representation (executors, trustees, and attorneys-in-fact)
- Public benefit counseling (Medicaid, SSI, VA, ABLE accounts, etc.)
- Special needs counseling (special needs trusts, housing, employment)
- Insurance advice (life, disability, long-term care, Medigap insurance, Medicaid compliant annuity products)
- Senior and disabled housing issues (assistance with independent living, nursing home and residency rights, personal care contracts, etc.)
- Taxes (income, estate, capital gains, and gift)
- Litigation and advocacy (contested guardianship, elder abuse, nursing home torts, will contests)
Experienced elder law attorneys understand and regularly deal with diminished capacity clients and can often find solutions to problems where other attorneys and professionals cannot.
Most serious elder law attorneys are members of the National Academy of Elder Law Attorneys (NAELA), a national organization of elder law attorneys which offers advanced continuing legal education programs, information, networking, and lobbying for elder law attorneys. Membership in NAELA requires the attorney to affirm and adhere to an enhanced set of ethical Aspirational Standards that go well beyond the standard Model Rules of Professional Conduct to which all attorneys are subject.
Attorney KELLY DAVIS has been a member of the National Academy of Elder Law Attorneys since 1997. He served on the Governor’s Select Task Force on Elder and Vulnerable Adults in 2016-17 which was instrumental in the adoption of the Uniform Power of Attorney Act in Wyoming.
In 2018-19 Attorney DAVIS served as the Chairman of the Wyoming State Bar Estate Planning, Elder Law, Trusts & Probate Section. He was a charter member of the Academy of Special Needs Planners.
You can learn directly about Elder Law by following this link and watching a brief introduction to this practice.
Is My Estate Plan up to Date?
This is a question we must all ask ourselves from time to time. As we grow older, our needs change and our estate plans should change to reflect those needs. When we were younger, our biggest estate planning concerns may have been providing for our spouse or children if something happened to us. Perhaps later we were more concerned about avoiding estate taxes or probate. Our priorities change over time and so, too, should our estate plans.
Unfortunately, too many people have just kept putting off making any decisions for themselves, doing nothing except watch what has happened to friends and family. Eventually we may get to the point where we think about the possibility of someday needing help in handling our affairs, staying out of a nursing home, or our protecting assets from long-term care costs. This is the time to see if your estate plan still meets your needs.
With over 40 years of experience in the legal issues faced by seniors, attorney Kelly S. Davis can help review your existing estate plan, help you determine whether it still reflects your wishes, and if not, come up with a new one. As a member of the National Academy of Elder Law Attorneys, he has the knowledge you need to make the right choices to define and reach your goals. Some of the common tools used in estate planning are discussed below.
Durable General Powers of Attorney
A durable general power of attorney is a legal document that appoints someone of your choosing to handle your affairs when you are no longer able. It is one of the most valuable documents you can have. It can make the difference between retaining control over your life or having the court appoint a guardian to make decisions for you.
Because we often cannot tell if our power of attorney will work until it is too late to change it, it is critical that you get it right before it is needed. Relying on “Do-it-Yourself” forms off the Internet can be as big a problem as trying to put a size 10 foot in a size 7 shoe. If your power of attorney is not carefully drafted or if it does not contain the right language, it can prove disastrous just at the time when you need for things to go right. Having an experienced elder law attorney like Kelly S. Davis draft your documents now can help avoid problems in the future.
Things to consider when looking at your durable power of attorney include: When will it be effective? Is the person you named to handle your affairs able to do the job? What happens if that person is no longer around? Does your document contain language that will be needed to preserve your estate if you end up in a nursing home? It is not the fact that the document says “durable power of attorney” at the top of the page that makes it work. It is the language contained within that controls.
If you are ever unable to make a healthcare decision for yourself, and you have not left clear instructions, the decision can be made by your next of kin, provided they all can agree! Unfortunately, that is not always the case. They may argue! The result may be that something you did not want may happen!
With a durable healthcare power of attorney, you can name one person that you trust to make decisions. If you include an advance directive in your document you can even tell that person what decision you want made and when. By describing your value system in your healthcare power of attorney, you can retain control and maintain your dignity up until the very end.
When considering your durable healthcare power of attorney, think about appointing a strong person as your agent. If that person should be unable to serve at the time they are needed, who will you name as the successor? Is there someone you do not want making healthcare or end-of-life decisions for you? How do you feel about the use of morphine to relieve pain? Do you want to be kept alive with a feeding tube? These are questions that only you can answer. Elder law attorney Kelly S. Davis can guide you through the process.
Last Wills and Testaments
If a person dies holding property in their name, without having made a survivorship or beneficiary designation, something needs to be done to transfer title to the heirs. Your Last Will and Testament is your set of instructions on how you want your property divided and who you want to handle it. To be effective, upon your death your Will needs to be “probated” to prove it is indeed your Last Will and Testament. Without a valid Will the legislature has decided who gets your estate. You lose control!
People often say, “I don’t have much. I just need a simple will.” That may or may not be the case. The question is not just about how much money, land, or other stuff you have. You need to say who do you want to inherit from you? What if that person dies? How old should someone be before they get their share? What if someone is or later becomes disabled? Are there any special bequests you want to make? What about heirlooms and tangible personal property? Is there someone that you absolutely do not want to inherit from you? Who do you trust to carry out your wishes?
The Will kits or forms you can get on line generally do not ask the key questions that address your needs. They cannot give you advice or counsel regrading your estate and how to achieve your wishes. A skilled attorney can help you define and reach your goals.
Trusts have long been recognized as a useful tool for estate planning. There are many kinds of trusts to choose from: living trusts, testamentary trusts, revocable trusts, irrevocable trusts, charitable trusts, A/B trusts, QTIP trusts, ILITs, IDGTs, special needs trusts, and more. Each has its own purpose. Selecting which one to use and when to use it requires special knowledge.
Living trusts are the most common form of trust. They are used in three primary situations: 1) To avoid or reduce federal estate taxes for married couples; 2) To avoid probate; and, 3) To speak from the grave as to how you want your estate used. But as you grow older, your goals may change. The federal estate tax may not matter anymore. You may have purchased or inherited property located outside of the state which would be subject to a foreign probate when you die if nothing is done. Your heirs may have grown up and their needs may have changed. Perhaps you are looking at nursing home care and have learned that your current living trust will do nothing to protect your assets. An experienced elder law attorney like Kelly S. Davis can help review your estate plan and give you appropriate advice.
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Davis, Johnson and Kallal
1807 Capitol Ave., Suite 200, Cheyenne, Wyoming 82001.