It was the holidays, and Mabel always got a lot of joy out of generosity, but Mabel’s children were concerned that Mabel would need long-term nursing-home care in the near future. Her children had heard that people in Mabel’s circumstances should not give gifts because the risk of losing her Medicaid Eligibility.
The concern is real. For Medicaid to cover the huge expense of nursing-home care, Mabel would have to show that she owned nothing more than around $2,000. And she must also show that she had not given away money or assets over the prior five years (2.5 years in California). That Medicaid rule – the “look-back period” or the “transfer penalty” – would charge Mabel dearly for her generosity. Depending on the size and number of the gifts, the penalty could be substantial.
A trust was created by your friend Rose and she has appointed you as the trustee. You want to help, but you’re concerned about all that responsibility. You would be managing Rose’s property for her and for others whom she names as beneficiaries. You might be paying her bills and taxes, overseeing bank accounts, making investments, collecting rent or unpaid debts, getting insurance if needed, and doing whatever else the trust directs you to do. People named as trustees are considered in law as “fiduciaries.” “Fiduciary” stems from the Latin for “trust.” To merit that trust, you must act in Rose’s best interests, to the highest ethical standards of good faith and honesty.
It is a lot of responsibility, but the government is here to help. The Consumer Financial Protection Board (CFPB) has issued a guide: “Managing Someone Else’s Money: Help for Trustees Under a Revocable Trust.” Download your free guide here.
Having family present in the life of a senior citizen can have numerous benefits on their mental and physical health. Family creates a consistent social network and connection that directly impacts the senior's overall quality of life. Prioritizing family relationships provides continuity as a senior experiences changes in their social network. Friends may change, become ill and unavailable, or even pass away, but family is multi-generational and, as such, has an enduring presence for an aging family member. The stability of family relations, even with the ups and downs of disputes, is a familiar source of social and emotional grounding, as well as practical help. A study by the United Health Group reports more than half of older Americans will cite faith or spirituality, and a loving family as the top reasons they have a positive outlook. That positive outlook brings tremendous benefits to a senior’s health and well being.
Whether you are the heir of the probate estate or the Personal Representative, knowing the lawyer’s role is one of the first steps you should take at the beginning of the probate process.
One of the biggest sources of conflict in probating the estate is understanding the role of the lawyer hired by the Personal Representative of a probate estate. Many Personal Representatives do not understand the probate process and leave the tasks up to the lawyer. The heirs of the estate may hear only from the lawyer or may hear the Personal Representative say, “This is what the lawyer says we have to do.” This often raises the question, does the lawyer owe a fiduciary duty to the heirs of the estate since the Personal Representative owes a fiduciary duty to the heirs?
The answer to that question depends on the state in which the estate is being probated. To be clear, this question is specifically about whether a lawyer owes the heirs of a probate estate a fiduciary duty, and not whether a lawyer owes a fiduciary duty in other contexts, such as to the beneficiaries of a trust when hired by a trustee, or a ward when hired by a guardian or conservator. The answer varies depending on each different circumstance.
As much as you want to and as hard as you try, you might not be able to take care of your ill spouse at home anymore. At this emotionally difficult time, the last thing you need is the stress of not knowing where to find the money to pay for the steep costs of institutional care.
Advance planning is a must. As as soon as you can – ideally at least five years before serious health problems arise – take advantage of many elder attorneys’ willingness to talk with you for free, or for a modest initial-consultation charge.
The information on this website is for education purposes only and is not, nor is it intended to be, legal advice. An attorney consultation is necessary for you to receive advice regarding your particular situation.