Law firm partner, David W. Silver specializes in Elder Law matters (which includes estate planning, Medicaid planning and guardianship), estate administration cases, civil litigation (including contract litigation and personal injury), and is accredited to represent Veterans by the Department of Veterans Affairs. He obtained his undergraduate degree from Penn State University, received an M.B.A. from East Carolina University, and received his law degree from the University of North Carolina at Chapel Hill. Dave passionately believes that everyone should have the equal opportunity to know their rights under the law. In addition to educating his clients about the law since 1997, Dave has taught business law at East Carolina University since 2007.
ESTATE PLANNING
Estate Planning is a tool to permit you to determine who will manage your affairs, during your life and after your death. In addition, it allows individuals to determine how assets are to be distributed at death. The main documents associated with estate planning are the following:
- Wills.Wills are documents through which you determine how and to whom your assets will be distributed at death. The benefits of having a will are: 1. You, not the State, decide how your property will pass at your death; 2. You decide who will manage your affairs following your death by appointing an Executor; 3. Through direction or instruction in the Will, you can allow the person who manages your estate to do so without the necessity of paying the costly premium for a surety bond to insure their honesty; 4. You may select a guardian for your children in the event they are minors; 5. If there are special gifts of property you wish to leave to certain individuals or if there are special gifts to charities you may designate these items in your Will; and, 6. You may establish a trust to provide for an individual who cannot provide for themselves as a result of illness, age or other disability.
- Durable Power of Attorney. This is a document in which you may appoint an Attorney-in-Fact who would act on your behalf in handling business and personal affairs. The Power of Attorney can have broad, sweeping powers or it can be very limited in scope. It can be limited in scope, that is, it can grant the authority to perform a single task or a limited number of tasks. The Power of Attorney for an unlimited amount of time can give someone the authority to perform almost any act other than writing a Will. The benefit of having a Power of Attorney is that it gives you the opportunity to name the person you wish to act on your behalf at such time as you may become incompetent or unable to act on your own behalf. Without a Power of Attorney in place, your family or loved one may have to go through the Courts (by way a guardianship proceeding described in a later section) to be named as a Guardian.
- Living Will/Health Care Power of Attorney. This document is a combination of the Living Will provisions and the Health Care Power of Attorney provisions. The Living Will allows you to express your wishes as to what actions are to be taken in the event you have an incurable or irreversible condition that will result in death in a short period of time; become unconscious and may never regain consciousness; or, suffer from advanced dementia or other loss of cognitive ability, which is not reversible. The Health Care Power of Attorney allows you to appoint someone to make health care decisions for you in the event that you are unable to make such decisions for yourself. The benefit of having this document is to be able to name the person who will make your health care decisions. Typically, when a physician makes a determination that you are incapable of making your own medical decisions, this decision-making responsibility falls to the next of kin. Usually, this is not a problem however, if the next of kin is a second spouse and there is a disagreement with children from a previous marriage, or when the next of kin is remote (geographically or otherwise), the Health Care Power of Attorney will make clear to your health care providers and family who is responsible for making your health care decisions.
- HIPAA Release. This release gives your health care providers the ability to disclose your protected health information to your Health Care Agents (appointed in the Living Will/Health Care Power of Attorney) so he or she may make an informed decisions. Again, typically, this does not cause a problem since your health care providers may disclose this information to your next of kin. However, if the named Health Care Agent is not the next of kin it is particularly important that this document be executed.
ESTATE ADMINISTRATION
In its simplest form, estate administration, otherwise known as probate, is a multi-step process in which the Clerk of Superior Court oversees the identification of assets of the deceased; the identification of creditors of the deceased; payment of the deceased’s bills; and the distribution of assets of the deceased to the beneficiaries. This process may take anywhere from several months to several years to complete, depending on the nature and complexity of the assets of the deceased. However, options exist for an abbreviated process in some smaller estates.
MEDICAID PLANNING
As we age, it is typically necessary to consider our need of long-term health care. Long-term health care includes, but is not limited to, having home health care or moving in to an assisted living facility or nursing home. As one may expect, these types of care are very costly. Recognizing that government-assistance is needed to assist those having difficulties in paying for the care that is needed, the federal government, in conjunction with each State’s government, provides Medicaid assistance for those who meet the very stringent guidelines to qualify. In order to qualify for this assistance, there are specific income levels and asset limits that must be met. As a result, it may be necessary for individuals or their families to consider whether any transfers or gifts of property should be made.
In addition to receiving Medicaid benefits, it may be possible for certain Veterans to receive long-term care benefits from the Veterans’ Administration. Our firm may be able to help in determining whether our veteran clients, or their surviving spouses, are eligible for these benefits.
GUARDIANSHIP
When an individual is incapable of managing his or her affairs, it may become necessary to establish a Guardianship. A Guardianship is a process before the Clerk of Court to determine whether an individual is able to manage his or her financial affairs, and in some cases, health care. A Guardianship is a two-step process. The first step involves filing a Petition and having a hearing before the Clerk to determine whether an individual is competent. The second step is for the Clerk to determine who should act as the individual’s Guardian.
