Q & A - Elder Law

Here are some frequently asked questions and partial answers.

The answers are general and are not intended to apply to your specific situation.
The law can often be complex and lawyers can always argue an opposing view. So, it is best to seek legal advice based upon your specific situation.
That being said, these questions and answers may be helpful to you.

1. What is a trust?
   A: A trust is simply a creation governed by law into which you may transfer an asset so that instead of you personally owning the asset, the "Trust" owns the asset. The asset can be real property, like your home, or it may be a bank or investment account. To describe the Trust that you create and how it is to be administered, you generally visit with an attorney who will guide you through the creation process of the Trust. The result will be a legal document that governs who will be the administrator, or more properly, the Trustee, and how assets and income of the Trust are to be administered. There is usually a provision in the Trust that determines how the assets of the Trust are to be distributed upon your death or upon the death of your spouse or other individuals identified in the Trust. See alsoTrustS
2. Are there different types of trusts?
   A: There are different types of trusts.
   Some common types are listed below.
   
   The most common type of trust is a "revocable living trust" that is created
   by a married couple for their benefit during the lifetime, and then upon their death, the trust becomes a benefit for their children.
   
   An "irrevocable trust" is sometimes created but not often because by its very nature it cannot be changed or modified as unforeseen events arise.
   
   A "special needs trust" is fairly common to protect assets for a person who is disabled and may be eligible for governmental assistance. The special needs trust holds assets that can provide to the disabled person additional benefits that would not normally be provided through the governmental programs available. See also Trusts
3. What is a Will?
   A: A Will is a document that becomes effective only upon the death of the testator, the person who executes or signs the will.
   
   The primary purpose of the Will is to set forth how the decedent's estate is to be distributed and identifies the individuals or institutions who are to receive part or all of the decedent's estate.
   
   The Will also should nominate someone to serve as the "Personal Representative" and who is in charge of the decedent's estate.
   
   Everyone needs a Will. Even those with a Trust need a Will. Unlike a Trust, a Will is not operative or effective until you die.
   
   A Will can be simple or complex. However, a Will is no good if it is not written well or if it doesn't conform to the statutory requirements for a Will.
   
   It is generally best to consult an experienced attorney to draft your Will to make sure that your wishes are properly carried out after you die and can no longer control your estate. See also Wills
4. What is the difference between a trust and a will?
   A: The primary difference between a living trust and a will is that the will is only effective upon the death of the testator while the trust is an active instrument that governs the administration of the assets contained in the trust. So a trust can be used to administer assets during one's lifetime while a will is solely intended to dispose of assets upon the death of the person who executed the will.
   
   A will must be probated, that is, it is filed with a District Court upon the passing of the testator. A trust does not have to be presented to a court and can be administered freely without any court involvement. However, if the value of decedent's estate is less than $100,000, the will doesn't have to be probated and the Personal Representative or heir can obtain the assets of the decedent's estate through a Small Estate Affidavit.
5. Do I need a trust or a will?
   A: Everyone should have a will, but not everyone needs a trust. Even if you have a trust, you should have a will in order to transfer assets from your personal estate upon death to your trust. This happens when an asset is purposely or unintentionally left out of the trust and is discovered after the death of a grantor of the trust. When that happens, the will needs to be probated so that the asset can be transferred to the trust. When a person has a trust, the associated will is often referred to as a "pour over will" since the will is intended to pour any assets outside of the trust into the trust.
6. What is a "living will"?
   A: An end of life declaration is often times referred to as a "living will" but it really doesn't have anything to do with a Will as described above. A living will contains your specific directions of how you want you to be treated when you no longer are able to communicate your health care wishes to your medical and care providers. Most individuals prefer, for example, to not be kept artificially alive if death would closely follow the removal of the artificial means, like a respirator or similar device. These instructions can be written by you while you still possess sufficient cognitive capacity to do so. The living will as we once knew it is now incorporated within the Utah Advance Health Care Directive, and this document is further explained elsewhere in Bradford Law Office's web site and also briefly below. See also Utah Advance Health Care Directive
7. What is an advance directive?
   A: An advance directive is like a living will but with the title of "Utah Advance Health Care Directive." See also Utah Advance Health Care Directive
8. What is a Guardianship?
   A: See Guardianship
9. What is a Conservatorship?
   A: See Conservatorship
10. How do I know if my loved one is incapacitated and/or needs protection?
    A: Capacity is diagnosed by medical professionals but ultimately it is a legaldetermination based on the medical evidence. Many cases are clear and common sense comes into play to determine whether a person has sufficient cognitive capacity to make reasonable decisions about his or her care.
    See Guardianship for more information about capacity.
11. Does a guardianship or aconservatorship need to be all or nothing?
    A: No. In fact, the law prefers a limited guardianship to the extent the individual person can make reasoned decisions about his or her care. It is often difficult, however, to actually articulate language in a court order specifically describing the limitations of the guardianship.
12. Who can I have on my team to help me protect my elderly loved one's interests?
    A: You can retain an attorney who specializes or has great experience in Elder Law and in particular, guardianships and conservatorships.
13. Is an attorney necessary?
    A: Technically, "No". However it is often very difficult to wend you way through the complicated Rules and Utah Code to effectuate a guardianship. This is particularly true if there is an contention among family members. Bradford Law Office is a firm that specializes in Elder Law and this includes guardianships.
14. What can I do to protect myself for the future?
    A: If you are asking about protecting yourself from incapacity, that's beyond the scope of our competency. If, however, you are asking how to best protect you in the event that you one day become incapacitated, then you can prepare some legal documents that nominate your choice of individuals to make decisions for you about your care and about your financial affairs. You should consult an attorney with experience in these areas. Bradford Law Office is one of those premier firms who specialize in preparing documents and also the capability to do the nitty gritty court work.
15. What is elder abuse?
    A: This is one of those things that when you see it, you generally know whether or not it is abuse. Physical or mental abuse is mostly obvious. But, there are other things that also constitute abuse. For example, if an elderly person is kept isolated away from friends and family members, that is elder abuse and may also be criminal. It is best to consult with Adult Protective Services or with an Elder Law Attorney.
16. How do I protect my loved ones from elder abuse?
    A: You can first try to assert your own efforts to change the environment where your loved ones are residing, if possible. If not, you have a duty to contact and report the matter to Adult Protective Services ("APS"). The intake telephone number is: 801-538-3567; and a link to their web site is: http://www.hsdaas.utah.gov/ap_referral.htm

17. Why haven't I hired Bradford Law Office yet?
    A: That is one question we actually cannot answer. But, the best answer is, maybe you should.

Again, we provided this as a general starting point for some broad questions. This is not intended to be specific legal advice for your very specific situation. Although we would love to offer whatever assistance we can through the many emotional situations elder law entails, we can only offer specific legal advice on specific facts for clients. If you need specific legal advice, please seek the actual advice of an attorney of your choosing.