McLaughlin & Quinn, LLC - Providence | Boston

Elder law is defined by the client rather than by specific legal distinctions.  It is a practice that focuses on the legal issues facing older and disabled clients and the families who care for them.  The most common areas of practice are Medicaid and long-term care planning, guardianship and conservatorship issues, estate planning and probate.

If a person is dependent on someone to provide care assistance to them permanently or for an extended period of time they require long-term care services. Long-term care can be provided in nursing homes, at home , or in adult day care or an alternate living facilities.  The need for long-term care is determined based on a person's ability, or inability, to perform Activities of Daily Living (ADLs) without assistance or prodding.  Essential ADLs are bathing, dressing, eating, ambulating and toileting.

Planning ahead allows you to have more control over your future.  There are several options available to pay for long-term care depending on your level of assets, specific needs and budget.  Individuals with few assets, or "poor" people, will qualify for Medicaid relatively easily.  Those with significant assets, or "rich" people, will use their own money which may diminish the value of their estate or deplete it completely.  Most "middle-class" individuals may benefit from long-term care insurance and some valuable advanced planning.  Wherever you may fall, professional advice is essential.

Medicare is a government-sponsored program for the elderly and disabled.  In general, individuals who are over 65 or disabled and who are eligible to receive social security retirement or disability benefits qualify for Medicare.  Medicare covers basic services including doctors visits, inpatient hospital services, surgery, laboratory and X-ray services, and medical and surgical dental services.

Medicaid is a joint Federal and state government program that pays medical costs for people with limited incomes and resources.  There are strict eligibility requirements and they change from state to state.  Usually, your income and personal resources as well as your care needs determine eligibility.  In some cases people need to "spend down" their assets in order to qualify.

Long-Term Care Insurance is an insurance plan that can help pay for or reimburse you for costs associated with long-term care services.  Plans are varied and can be customized to meet your specific budget and personal needs.  A plan can provide for items that can help keep you in your own home, such as home modification or durable medical equipment.  They can also provide for nursing home specific features such as bed reservation and respite care.  Other features may include waiver of premium, caregiver training and spousal discounts, inflation protection, survivorship benefits and non-forfeiture benefits.

Probate is the legal process of settling a decedent's estate.  The court must qualify the "Last Will and Testament" and appoint an executor to probate the estate.  Proceedings may be formal or informal depending on the size of the estate.   Only assets owned in the decedent's individual name are subject to the probate process and considered probate assets.  Wills do not govern the transfer of certain property that passes outside of probate including joint tenancy property or assets with beneficiary designations.  Examples of non-probate assets are joint bank accounts, transfers with TOD (transfer on death) or POD (payment on death), life insurance policies, retirement accounts and interests in trusts.

• Life insurance policies
• Retirement accounts
• Assets held in joint tenancy with survivorship rights
• Assets with transfer on death (TOD) designations
• Assets with payment on death (POD) designations
• Interests in trusts

A testator is the creator or maker of a will. If someone dies without a will or leaves an invalid will they die "intestate." Accordingly, the distribution of their assets is determined by the Laws of Intestacy in their state possibly resulting in the loss of a tax-advantaged transfer and the failure of personal wishes to be met.  Usually, the closest adult relative or friend is appointed to administer the estate.  The administrator is under a fiduciary duty to act fairly and honestly on behalf of the estate.

• Undue Influence - this ground asserts that a third party coerced the Testator or maker of the Will into creating the challenged Will
• Mental Incapacity - this ground asserts that the Testator was mentally incapable of understanding the significance of creating the challenged Will
• Will formalities not followed - this ground asserts that the challenged Will was not executed in compliance with the law, perhaps due to the fact there were no witnesses, or that the Testator did not actually sign the Will
• Subsequent Revocation - this ground asserts that the challenged Will was revoked, either by a more recent Will or by operation of law (for instance: a subsequent marriage makes prior Wills null and void)
• Fraud and Mistake - this ground asserts that the Testator was deceived by a third party by a misrepresentation, and the challenged Will would never have been created but for the misrepresentation

If someone is entitled or may become entitled to receive public benefits like "Medicaid and/or SSI" a "Special Needs Trust" can be created to provide for the beneficiary without causing them to lose their eligibility status to receive public benefits..  A Special Needs Trust can be self-settled or third-party.  These trusts are complicated and require qualified counsel.