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As your loved one ages or becomes incapacitated, you may notice signs that they can no longer make medical, financial or even day-to-day decisions on their own.

You can appoint a legal guardian to assist your family member in making these decisions, but when is the time to take this life-changing and emotional legal step?

There are signs that you can look for, such as:

• Compromised decision-making ability – If you are to secure guardianship, you must prove incapacity. For example, you will usually have to confirm that your mother or father has difficulty making decisions about assets, health, or safety. Additionally, specific medical conditions (such as  Alzheimer’s disease or dementia) may impair them from making sound decisions.
• Evidence of undue influence  – Your elderly parent may require help with everyday duties, and a part-time  “caretaker” may be hired to assist them. It’s sad, but some unscrupulous individuals may unduly influence your aging parent and give them access to funds or even rewrite their will, naming the caretaker as a beneficiary. 
• Disagreement over medical care – Your aging relative or parent should have the right to make their own health care decisions. Certain medical conditions can interfere with their ability to make these choices. Your parents may refuse to do what is necessary, such as taking medication, eating, or moving into an assisted living facility. In these cases, pursuing guardianship may be a valid option.  

It is never enjoyable, but sometimes extremely necessary, to petition the Pennsylvania Orphans’ Court for guardianship of your elderly parent. However, doing so (as hard as this decision may be) would be in their best interest.

Obtaining the legal guidance of a  knowledgeable, empathetic and professional Blue Bell guardianship lawyer will be invaluable in helping you make this decision and do so as objectively as possible. It’s mandatory to remember that, when the time comes, you usually must pursue guardianship to safeguard your aging relative’s health and financial interests.

Can a Guardian Be Appointed In an Emergency Situation?

In some specific cases, yes, then can. The Pennsylvania Orphans’ Court can appoint an emergency guardian if it finds, using clear and convincing evidence, that your loved one is incapacitated and that failure to appoint a guardian immediately may harm a loved one or their estate.

The court will use similar guidelines and hearing requirements used in permanent guardianships, but a hearing will be scheduled sooner due to the emergency.

An emergency guardian of the person is appointed for 72 hours and this appointment can be extended for an additional twenty days if needed.  An emergency guardian of the estate is appointed for 30 days. The emergency guardianship is intended to allow a guardian to act quickly to protect an incapacitated person’s health, medical or financial welfare until a plenary or permanent guardianship hearing takes place.

However, the “emergency guardianship” may be limited by the court according to the specific needs of your loved one at the time. For example, if your aging parent needs emergency medical care and they are not able to independently make a decision.

In this case, you must consult with a professional guardianship lawyer to move quickly and correctly.

Are There Different Types of Guardians?

Guardianships can be done for various reasons, and several types of guardianships may follow different rules and guidelines.

For example, a “plenary guardian” of your loved one holds all the authority and may make all the necessary decisions regarding your loved one’s well being. For example, the guardian may deem it necessary to place your loved one (known as the “ward”) in a nursing home or possibly make life-or-death decisions.

Alternatively, a “limited guardian” only holds specific powers detailed in the court’s decree. Their decision-making capabilities are limited.  For example, a court can authorize a limited guardian to make decisions only about the sale of an incapacitated person’s house and exclude the guardian from making any other decisions.

If you are considering guardianship, it’s vital that you discuss the current and expected needs of the incapacitated person with your guardianship lawyer. They will advise you appropriately on what type of guardianship is needed and how far the guardian’s decision-making powers may extend.

Who May Be Appointed As a Guardian?

In Pennsylvania, the courts have specific guidelines regarding who can be appointed as a guardian. Simply, a guardian could be any qualified person (a relative or non-relative), a corporate fiduciary, a non-profit agency, a guardian support agency, or a county agency.

However, the courts will ensure that the guardian has no interests that conflict with the interests of your loved one, and if they do, they usually cannot serve as a guardian.

Being a relative of the incapacitated person, however, will commonly not be looked at as being a conflict of interest.

It’s always wise to note that Pennsylvania recognizes that every citizen (no matter how old)has unique needs and diverse levels of comprehension. Each case differs, and the court has an established system for caring for all incapacitated or impaired persons.

To the extent of their capabilities, an incapacitated or impaired individual will, to the extent possible be a part of the decision-making process.

You (as the concerned relative) and the Pennsylvania court also recognize that it’s critical to find a trusted and suitable person (or institution) to serve as your loved one’s guardian.

Also, it is important to note that at any time during their lives, a person can become incapacitated due to an accident, illness, or myriad other reasons. It’s not only the elderly that require guardians.

If any person in your household cannot function properly, or make their own decisions daily, consult with your local guardianship lawyer immediately. Don’t wait until they are harmed financially, or their health is in danger. Your competent, knowledgeable lawyer will know how to proceed to protect those you love and care for.

I Need To Know More About Guardianship; How Should I Proceed?

If your aging family member is having difficulty making decisions daily, you must discuss this dire situation with a local Blue Bell guardianship lawyer. Your aging parent or relative may desperately need this help, but always remember that some of their rights are being taken away. For this reason alone, appointing a guardian can be a sobering, stressful, and emotional decision.

Therefore, this decision as to the reach of the guardians’ powers and how to legally proceed should be thoroughly thought out.  By obtaining the professional advice of your lawyer, you can best ascertain what is best for all concerned.

Don’t wait until an accident or harm forces this decision; obtain the experienced, empathetic, and professional knowledge needed to ensure everyone’s rights are protected and served. 

As we age, life can change dramatically, and we are confronted with questions we never thought we’d have to address. Most older couples are on Medicaid and have Social Security income, but medical costs, everyday living expenses, and especially the cost of a nursing home can be overwhelming.

One of the most common situations is that one spouse must enter a nursing home due to health or mental issues, but the other is capable of living in their family home and desperately wants to do that. This can be an emotional, heart-wrenching situation, but an experienced, empathetic Blue Bell estate planning lawyer can be of significant help.

The federal government has legal protections that ensure that you, as a healthy spouse, do not go broke or are left without a place to live after your spouse enters a nursing facility.

Usually referred to as “Spousal Impoverishment Protection,” or Division of Assets. The law states that you, as the spouse living at home, have enough money to live by protecting certain income and assets.

So, very simply put, if you are the community spouse and wish to continue to live in your home, you will not lose it. This usually holds, no matter how valuable your current home is worth.

In addition to your home being exempt, there are other specific assets that fall under this law, and you are permitted to hold onto them.

Some of these assets are:

• Most household items.
• Personal effects, and one vehicle.
• Pre-paid funeral expenses and plans, including burial plots.
• Life insurance policies that have a face value no greater than $1,500 (but this can vary).

All rules and government laws are not as simple as stated, and each situation is unique. Your lawyer will familiarize themselves with your case and ensure you know all the available legal options.

Are There Any “Conditions” I Must Meet to Keep My Home?

As stated, the legalities of dealing with the rules and regulations of Medicaid, etc., are legally confusing and challenging to navigate.

If your spouse must enter a nursing home in Pennsylvania, you can be eligible for nursing home medical assistance and keep your home if you express an intent to return to that home.

Even if your spouse has little chance of returning, the house is exempt if you legally state that they intend to return home.

The laws intend that your home be there in case your spouse returns. This allows you to have a nursing home bill paid by medical assistance and still keep your own home.

As always, there may be “catches” to this benevolent attitude, and even though your house is exempt while you’re living, the Department of Human Services is, on the sidelines, waiting. They may have a legal claim on your estate based upon all the nursing home benefits you have previously received through medical assistance. So, upon the death of your spouse in the nursing home, it may now be necessary to sell the house to pay back medical assistance benefits.

There are many “hoops” to go through and overcome to ensure that all your rights are preserved and you can provide for your spouse and yourself. Your Philadelphia, Montgomery, Delaware, Chester, or Lehigh County estate planning lawyer is experienced in dealing with all of these legal details and will fight to ensure that all your options are covered.

Are There Are Other Measures Available to Help, Such as “Transferring” My Home?

Yes, it is sometimes possible for you to transfer your home to another and live there. However, you can usually do this only under specific circumstances.

Some of the rules and circumstances involved are:

• Your home can usually be transferred to you as the spouse.
• If you have a child living with you who is under 21 and is blind or disabled.
• You may transfer your home to a sibling if they have an interest in the house and lived there for at least one year before a spouse enters a nursing home.
• Also, you may be able to transfer your home to a child if they lived in the home years before you moved to a nursing home and the child provided care to you which helped you remain at home rather than enter a  facility.

This legal remedy can be, at the least, “tricky,” and you must have the help of a Blue Bell estate planning law team that will help ensure you are doing the right thing for you and your family.

How to Protect Assets if Your Spouse Goes Into a Nursing Home?

“Estate planning” is the usual term used to describe the process of organizing and planning the orderly transfer of property and assets upon death. Estate planning deals with death, inheritance tax issues and much more.

However, long-term care planning combines estate planning with the many concerns of protecting and preserving your hard-earned assets from the enormous costs of long-term care.

Your experienced estate planning lawyer is very adept at “Long term” care planning, which is concerned with questions such as: “What if I, or my spouse, become seriously ill or disabled and need extensive care or have to live in a nursing home?”

Your Blue Bell estate planning and elder law attorney will thoroughly analyze your financial situation and prepare a viable plan for both death and disability that may require long-term nursing home care. This plan will be formed to fit the needs of your situation as you and your spouse age and ensure that you both have the best quality of life possible.

My Spouse Needs to Enter a Nursing home; How Should I Obtain Guidance?

Unfortunately, the time has come, and you realize that your spouse is facing an impending health crisis, dementia, or another illness and she can no longer live at home.

This is an emotional and overwhelming situation, but you still must take care of yourself and find answers on how to remain living at home.

Your Philadelphia, Montgomery, Delaware, Chester or Lehigh County elder law attorney’s key role is to help solve the numerous issues that arise and provide professional, empathetic legal guidance to ensure that optimum “quality of life” is preserved for you and your spouse.

Don’t try to navigate these legal issues alone, as too much is at stake. Consult with your local elder law attorney and plan your moves carefully so that you, and your spouse, are cared for with the dignity and respect you both deserve.

It’s not uncommon for older adults to rely on their adult offspring to help them with various functions. That informal level of assistance can be formalized through a power of attorney that allows the parent to authorize someone to handle certain matters on their behalf, primarily financial. This is a good idea in general because a power of attorney is a vital piece of estate planning. But there are times when it can cause friction within a family, particularly between siblings. The sibling with the power of attorney may use conflict as an excuse to isolate the parent from the other siblings or even from family friends. Is that allowed with a power of attorney?

What Can Someone With a Power of Attorney Do?

Powers of attorney vary in terms of what responsibilities they assign depending on the needs of the person authorizing someone else to have the power of attorney for them. Power of attorney can be very narrow, or it can encompass a wide range of items, which can include any or all of the following:

• Access to someone’s digital communications and assets
• Access to financial documents and decisions
• Ability to create or change trusts
• Ability to change survivorship and beneficiary designations

In Pennsylvania, all powers of attorney come with a notice to the person who will have the power that they must act with due care on behalf of the person they’re representing; act in good faith, and act only within the scope of duty as defined by the power of attorney.

What Is Not Included in a Power of Attorney

A power of attorney covers matters related to property and finances. Some additional powers of attorney can address health issues as well. In that case, the representative can refuse to let the parent see people if the representative believes (in good faith) that those people could harm the parent’s health.

But for powers of attorney that only address property and finances, the representative does not have the right to bar access. If this happens to you or someone you know, and the sibling with the power of attorney refuses to cooperate, it could be time to bring in legal assistance to enforce your rights.

Let Me Advise You

If you or someone you know needs legal assistance with powers of attorney, call me at 610-718-6368.

Incompetence and incapacity: They sound similar, but are there differences? And when should each term be used? In Pennsylvania, how they’re used has changed over the years. At one point, “incompetent” wasn’t used legally, but it returned to legal use in 2007. Here’s what you need to know.

Incompetence

In Pennsylvania, incompetence became a standard applied when close family or friends wanted to be able to make certain medical decisions on behalf of someone. For the court to approve, a doctor needed to examine the person and declare them incompetent for medical purposes. That means the doctor didn’t believe the person had the mental capacity to understand what they needed to in order to provide consent for medical treatments. It’s only used in cases where medical decisions are required, but no one was appointed medical power of attorney to step in. This isn’t the end of the line, though; a healthcare representative or even the person diagnosed as incompetent can have the assessment overturned.

Legal Incapacity

Incapacity is similar to incompetence in that it describes a person who can no longer take care of themselves, their health and safety, and daily life and is unable to enter into contractual arrangements knowledgeably. Whereas incompetent is used in medical situations, incapacity is used only in legal matters. For someone to be deemed legally incapacitated, a judge must conduct a hearing in which evidence, medical and otherwise, is presented, and the judge determines whether or not the evidence proves incapacitation. A judgment of incapacity cannot be overturned and can be used in both medical and financial situations.

What Estate Planning Can Do to Help

These types of legal situations arise when someone hasn’t prepared for the future of their estate. Planning and setting up various trusts and powers of attorney can prevent legal hearings and other stressful outcomes. Talk to an experienced estate planning and elder law lawyer about what steps to take.

Let Me Advise You

If you or someone you know needs assistance with estate planning or elder law, call me at 610-718-6368.

How Does a Living Trust Apply in Pennsylvania?

A living trust is a form of estate planning which, unlike things like wills, becomes active while the person is still living. How such trusts work varies from state to state. Here’s what you need to know about living trusts in Pennsylvania.

What Is a Living Trust?

A living trust is a legal document in which a person (the testator) places assets, including bank accounts, property, or other financial assets, into a trust managed by someone else. This could be the testator themselves, or it could be another individual or a corporation such as a bank. Whoever manages the trust is called the trustee.

The trust specifies the trust’s beneficiaries when the testator dies. The testator continues using the assets while alive but has prepared them to be fully transferred after death.

Advantages of a Living Trust

One of the most significant advantages of a living trust is avoiding having the assets go through probate court. Assets that belong to the trust can be distributed to the heirs quickly, as opposed to a will that needs to go through probate court, which can take months or longer and run up significant legal fees.

Another advantage is that a trust is a private transaction. Wills that go through probate become part of the public record. For those who would like to keep their estate details more private, a trust is a way of accomplishing that.

One thing to note: People often erroneously believe that a trust will significantly reduce estate taxes. That’s rarely the case. But Pennsylvania doesn’t have a state estate tax, although it does have a state inheritance tax.

If I Have a Living Trust in Pennsylvania, Do I Still Need a Will?

There are two major reasons you should have a will, even if you have a living trust:

• Guardianship of minor children. Trusts don’t have a mechanism to appoint guardians for orphaned minor children. Only a will accomplishes this. Without a will, the court will assign an orphaned minor a guardian.
• Assets not included in the trust. Any assets not transferred to the trust will not be distributed by the trust. The probate court would handle that.

Let Me Advise You

If you or someone you know wants to investigate setting up a living trust in Pennsylvania, call me at 610-718-6368.

The Importance of Durable Powers of Attorney

There are various aspects to planning an estate, and there are various forms of paperwork to make those aspects viable in the long term. One important document is the power of attorney. There are different types of powers of attorney, but one to consider is the durable power of attorney. Here’s what it does and why it’s valuable.

What Is a Durable Power of Attorney?

A durable power of attorney is how someone (the principal) can appoint someone else (the agent) to act on their behalf and make critical decisions if the principal becomes mentally incapacitated. In this type of power of attorney, the agent can handle decisions regarding business, financial, and legal concerns. The power of attorney details how much responsibility the agent has and how much they’re allowed to handle.

Why Is a Durable Power of Attorney Valuable?

Having a durable power of attorney in place can allow the principal to attend to other matters in their life, knowing they’ve ensured their intentions and wishes have been made known and are in the hands of a responsible person who will oversee them. It also can make the principal’s family members more at ease, knowing they won’t have to make difficult decisions during a time of grief and stress.

Things to Consider When Selecting Someone to Act as Your Durable Power of Attorney

The agent will have a considerable amount of responsibility and authority over the principal’s affairs, so it needs to be someone that can be fully trusted. Family members are often selected, but there are times when that isn’t advised. If there is already conflict among family members, appointing one of them as the agent can lead to increased conflict. Then it might be better to have a non-family member involved.

It’s also essential to define the things the agent has the authority to do. This is where the advice of an experienced estate planning attorney can be valuable, as they could have insights and advice others haven’t thought of. That can help avoid issues down the road.

Let Me Advise You

If you or someone you know would benefit from exploring various aspects of estate planning, including powers of attorney, call me at 610-718-6368.