Trusts & Estates and Elder Law Services


Advance Medical Directives/Living Wills*

Advance medical directives, also occasionally referred to as living wills, are legally recognized instructions to healthcare providers that describes a person's healthcare wishes and names an agent to make healthcare decisions on their behalf in situations where the person is not able to communicate those wishes themselves. This estate planning document is one of the primary three estate planning documents because it provides a great deal of security for family members who are faced with a difficult decision regarding their loved one.


Estate Administration & Probate

When a person passes away there are certain steps that need to be taken in order to ensure that the deceased person's wishes are carried our correctly. This ordinarily involves probating a will and having an Executor appointed to handle their estate. The Simmons Law Firm frequently is named as Executor when a person creating a will does not wish to place that workload on a family member. The job of the Executor is to carry out the will provisions correctly and efficiently and report their progress to the court. This ordinarily includes providing an accounting to the Commissioner of Accounts that has been appointed to oversee the will.


Guardianships & Conservatorships

This is a type of proceeding where a court appoints a person to take care of an incapacitated family member. Guardians are court appointed individuals who are tasked with taking care of a person who has been adjudicated by a court to be incompetent. Conservators are court appointed individuals who are tasked with taking care of an incapacitated person's finances and property. The guardian and conservator are frequently the same person. To initiate this process a family member must petition the court to appoint them in this capacity.


Long-term Care and Medicaid Planning

Medicare will only pay for up to one hundred days of nursing-home care. On the other hand, Medicaid is a means-tested government benefit that will pay for long-term nursing home care indefinitely for eligible persons. However, there are strict rules that must be followed in order to be eligible for Medicaid. The process of creating a plan to provide for long-term care for yourself or a family member is a daunting and difficult task to undertake. That is why it is so commonly delayed, however, the best strategy is to start creating a plan approximately six years before such services are expected to be needed. This is a complex area of law that requires a lot of advance planning, but that can result in substantial savings for you and your family when completed successfully.


Powers of Attorney

A power of attorney is a legal instrument that allows the person creating the document to name someone to carry out specific tasks on their behalf. Powers of attorney only allow the agent named to act with regards to finances and property, such as selling a house.

Durable Power of Attorney*

The durable power of attorney is one of the primary three estate planning documents. This type of power of attorney survives beyond the incapacity of the person who created the document and allows for the person named to help manage the incapacitated person's financial affairs. This includes paying bills on their behalf, entering into contracts on their behalf, such as with a nursing home, and other financial transaction related activities. Individuals frequently create this document along with a will in anticipation that there may come a time where they can no longer manage their affairs and they wish to have a trusting person help them when that time comes.

Limited Power of Attorney

The limited power of attorney is a grant of a specific power to an individual to accomplish a task that is limited by time and also by subject matter. For example, it is common for military members to grant a limited power of attorney to a family member if they go oversees to serve. Another common use of a limited power of attorney is where a person might need to sell land under certain time conditions and they will not be available to oversee the day-to-day details of the transaction so they grant a person to oversee the sell on their behalf.


Trusts

The word 'trust' is a relatively simple word that describes a variety of complex legal constructs that all involve controlling what happens to a person's property over a period of time. Trusts can be as complicated as an actively managed brokerage account, or as simple as an ordinary checking or savings account. There are as many types of trusts as a person can imagine and they can contain creative terms and conditions tailored to the goals of the individual establishing the trust. Below I will describe four common types of trusts.

Inter-vivos Trusts

Inter-vivos simply means while someone is living. An inter-vivos trust is a trust established by a person during their live. The creator can either retain the power to revoke the trust, or can make it irrevocable. This decision may have various different tax consequences. The primary purposes of an inter-vivos trust are for tax benefits and also to avoid the probate process.

Testamentary Trusts

Testamentary trusts are trusts located in the Last Will & Testament of an individual and they do not become effective until the person passes away. There are many reasons why a person may want to have a testamentary trust, but the most common reason to set up a testamentary trust is to allow parents to control the timing of when their children may receive assets if both parents pass away before their children reach a certain age. For example, the testamentary trust could contain terms that state that if both parents die before their child attains the age of twenty-five, then their assets shall be used to pay for college for their child. Then upon the child completing college, the remainder of the parents' assets could pass outright to their child. This allows parents to create an incentive for their children to finish school and prevents their children from receiving a substantial amount of property while they are at an irresponsible age.

Special Needs trusts

The special needs trust is a highly specialized form of trust that stands apart from other types of trusts because it was created at the federal level to provide for the care of individuals that have special needs such as autism or a disability from a personal injury. Congress created the special needs trust to allow for family members of a person with special needs to provide additional care and services to the person without jeopardizing their asset-tested government benefits, such as Medicaid services. There are both first party and third party special needs trusts and each have separate and complex rules that are too extensive to describe here. However, every family caring for an individual with special needs who is also receiving government benefits needs to speak with a lawyer about setting up a special needs trust.

Trust Administration

Whenever a trust is established, the person creating the trust must select someone to make sure that the terms and conditions are followed correctly. This is a service The Simmons Law Firm offers to its clients when they want to have a professional and neutral third party making decisions regarding the trust.


Last Will & Testament*

The will is the primary estate planning document that legally describes what should happen to a person's property after they pass away. Creating a will is a very easy task to put off. However, I warn all of my clients that for how relatively simple a will is to create, the failure to create a will can result in the most disastrous consequences. Whether a will is standard or complex depends on the extent of a person's assets and their family structure. Creating a will begins with obtaining this information and then planning appropriately for the information learned.


* The Last Will & Testament, the Durable Power of attorney, and the Advance Medical directive make up the three primary estate planning documents.

Areas of Practice

The Simmons Law Firm focuses on the following areas of law: