Fireside Chats During the Holiday Season

Posted on December 18, 2018January 22, 2021 by Lin Law

As the holidays approach and families gather together, topics like long-term care and estate planning are likely to be the last thing on your mind. However, the holidays are the perfect opportunity to discuss these difficult issues with your loved ones. For older relatives, it is important to discuss whether he or she has planned for future incapacity and/or assisted living or nursing home care needs.

In addition, if you and your older family members already have existing advance health care directives and powers of attorney for finance in place, the holidays are a good opportunity to ensure that your health care agents understand your wishes with regard to end of life care, and that your attorneys-in-fact have a good understanding of your finances, or that they know where to find that information if and when they need it.

If you and your family will be gathering together for the holidays, remember that the most difficult conversations are often the most important, and that when it comes to long-term care and estate planning, the earlier you begin planning, the better.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author. Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation.

Evan Y. Lin Named to the 2018 Wisconsin Super Lawyers List

Posted on November 19, 2018January 22, 2021 by Lin Law

Evan Y. Lin, an attorney and managing member of Lin Law LLC, has been named to the 2018 Wisconsin Super Lawyers list by the publishers of Super Lawyers® Magazine. Each year, only 5% of attorneys in Wisconsin are named a Super Lawyer. Evan was previously named to the 2015, 2016 and 2017 Wisconsin Super Lawyer list and was also named five times to the Wisconsin Rising Star list in Estate Planning and Probate by the same publication.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

Up the river without a paddle – is one power of attorney as good as the next?

Posted on November 15, 2018January 22, 2021 by Lin Law

Not all powers of attorney are created equal. When planning for future incapacity, particularly if you anticipate requiring governmental benefits such as Medicaid, it is important that your financial power of attorney provide your agent(s) with all the powers he or she might need to provide for your elder law or special needs objectives. These powers may include, but are not limited to, the ability to:

– Create and fund revocable, irrevocable, or supplemental needs trusts;

– Make gifts above the annual exclusion amount or to him or herself, if necessary;

– Execute estate planning documents and other agreements, such as a caregiver agreement; and

– Change beneficiary designations on life insurance policies and retirement assets.

If you are planning for your future incapacity, make sure that your power of attorney grants your agent the powers he or she will need to accomplish your elder law and special needs objectives, so that your agent does not find themselves up the river without a paddle.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

We get by with a little help from our friends – Supported Decision-Making Agreements for functionally impaired adults.

Posted on November 5, 2018January 22, 2021 by Lin Law

In April 2018, the Wisconsin State Legislature passed legislation to create Chapter 52 of the Wisconsin Statutes, authorizing the use of Supported Decision-Making Agreements in the State of Wisconsin. Wis. Stat. § 52.01(6) defines “supported decision-making” as “a process of supporting and accommodating an adult with a functional impairment to enable the adult to make life decisions… without impeding the self-determination of the adult.”

Accordingly, a Supported Decision-Making Agreement can authorize the principal’s supporter (or supporters, if the principal desires more than one) to assist the principal in a number of ways, including:

a. Providing supported decision-making to the principal, including assistance in understanding the options, responsibilities, and consequences of the principal’s life decisions, without making those decisions on behalf of the principal;

b. Assisting the principal in accessing, collecting, and obtaining information that is relevant to a given life decision, and in understanding said information; and

c. Assisting the principal in communicating his or her decisions to the appropriate persons.

A Supported Decision-Making Agreement cannot be used as evidence of incapacity or incompetency of the principal, and is revocable by the principal at any time. Because of their flexibility, Supported Decision-Making Agreements may (and in many cases, should) be used in conjunction with powers of attorney for finances and healthcare. Importantly, Supported Decision-Making Agreements must now be considered as a potentially less restrictive alternative to guardianship, and may also be used in conjunction with a full or limited guardianship.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Medicare vs. Medicaid: Do you know the difference?

Posted on October 1, 2018January 22, 2021 by Lin Law

When speaking about public benefits, people often confuse Medicare and Medicaid. After all, they do basically the same thing, right? Not exactly…

Medicare is available to all individuals age 65 and older, in addition to chronically disabled individuals of any age, irrespective of resources (i.e., assets). It is federally administered and beneficiaries are often responsible for co-pays and premium payments. Medicare has four parts, each providing distinct benefits:

1. Part A (Hospital Insurance) – provides coverage for hospital costs and related

services (e.g., skilled nursing facility care, home health care, and hospice care).

2. Part B (Supplementary Medical Insurance) – provides coverage for physician services

and certain outpatient services that are not covered by Part A.

3. Part C (now known as Medicare Advantage) – provides expanded coverage beyond

Parts A and B.

4. Part D (Voluntary Prescription Drug Benefit) – provides prescription drug coverage

through private insurance companies.

Medicaid, commonly referred to as Medical Assistance (MA), receives federal funding but is administered by the individual states. Unlike Medicare, Medicaid is a needs-based program, and beneficiaries are subject to strict financial eligibility requirements. Medicaid covers a broad range of health services, but is primarily known for providing long-term care (i.e., nursing home) coverage. Individuals may be eligible for both Medicare and Medicaid, and receive benefits from both programs at the same time.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

What is guardianship and how do you avoid it?

Posted on August 23, 2018January 22, 2021 by Lin Law

Guardianship is a court procedure in which an individual is appointed to make certain decisions for another person (the “ward”). The purpose of a guardianship is to protect or assist an individual who, due to mental incapacity, is unable to make decisions, defend him or herself against exploitation, or otherwise provide for his or her needs.

The proposed ward may require a guardian of the estate and/or a guardian of the person. A guardian of the estate handles the ward’s financial matters, similar to a power of attorney for finances, whereas the guardian of the person handles day-to-day matters such as the ward’s living arrangements, medical care, etc. In addition, the person petitioning the court to appoint a guardian for the proposed ward may request a temporary or permanent guardianship. A temporary guardianship can generally be established within a few weeks and lasts for sixty days, with up to one sixty-day extension. A permanent guardianship, on the other hand, remains in effect until removed by the court. In order to establish a guardianship, the proposed ward must be found legally incompetent by two physicians or one physician and one psychologist.

The ultimate goal of a guardianship is to impose as few restrictions on the ward as possible (i.e., remove as few of the ward’s rights as possible), while also ensuring that his or her needs are being met. However, even the most minimally restrictive guardianships results in the loss of some of the ward’s rights. One way to prevent a guardianship from becoming necessary is to plan ahead and execute a Financial Durable Power of Attorney and Power of Attorney for Healthcare. These documents will usually provide the principal’s power of attorney or health care agent with sufficient authority to protect or provide for the principal’s needs without petitioning the court to establish a guardianship, thereby avoiding the time and expense of a court proceeding.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author. Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation.

Special Needs Trusts

Posted on August 2, 2018January 22, 2021 by Lin Law

Are you planning to leave assets to a disabled beneficiary upon your death? If so, consider establishing a special needs trust (“SNT,” also known as a supplemental needs trust) for your beneficiary’s benefit.

An SNT is an irrevocable trust (i.e., the trust cannot be revoked or amended) established for the benefit of a disabled individual and managed by a trustee. Because the trust is not owned by the beneficiary, the trust assets can be used to provide for the disabled person’s needs over and above the essential primary care provided to the disabled person through public assistance programs such as Medicaid or SSI, without compromising his or her eligibility for those benefits. SNTs are divided into two general categories, first-party or third-party, depending on who the trust is funded by.

First-party SNTs are, as you may expect, funded with the disabled person’s own assets. A first-party SNT is established by the disabled person or on his or her behalf by a guardian, parent or grandparent, or the court. While a first-party SNT is a good option for a disabled person who wants to preserve assets he or she already has, upon his or her death the State can recover against the disabled person’s estate for benefits paid during his or her lifetime, including recovery against non-probate assets.

Third-party SNTs, on the other hand, are created by a third-party’s Will or Revocable Trust for the benefit of the disabled person and funded upon the third-party’s death from the proceeds of the third-party’s estate. There is no limitation on who may create a third-party SNT for the benefit of a disabled person, and upon the beneficiary’s death there is no estate recovery by the State.

While many SNTs are privately managed, they can also be created as a pooled and community trust (PACT) which is run by a nonprofit entity. While each PACT beneficiary has a separate account, the assets of all participating beneficiaries are pooled for investment purposes. PACTs, like private SNTs, can be either first- or third-party.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

What is Elder Law?

Posted on July 2, 2018January 22, 2021 by Lin Law

Elder Law is a fast-growing practice area due to the steadily aging population of both Wisconsin and the nation as a whole. However, many may not have a good understanding of what Elder Law is, or the services an Elder Law attorney can provide.

The practice of Elder Law encompasses the provision of legal services to older and disabled individuals and their families. For older clients, this can include planning for incapacity and long-term care needs, coordinating available private and public benefits, and working with the client’s family, healthcare providers, other advisors, and fiduciaries to ensure that his or her objectives and needs are being met.

Planning for incapacity will often include implementing durable powers of attorney and advance healthcare directives, such as powers of attorney for health care, declarations to physicians (also known as a Living Will), and authorizations for final disposition. If the individual in question is already incapacitated and is unable to care for him or herself, an Elder Law attorney may assist that person’s family in petitioning the court to establish a guardianship.

An Elder Law attorney can also assist an older individual in planning for his or her long-term care needs. This can include planning geared towards Medicaid eligibility or working with the individual’s financial advisor to ensure that he or she is able to pay privately for long-term care.

For disabled individuals, planning opportunities can include special needs trusts, which are used to provide for a disabled individual’s needs while maintaining his or her eligibility for governmental assistance and benefits. Special needs trusts may be established by or on behalf of the disabled person and funded with his or her own assets, or by a third party for the disabled person’s benefit.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Is your child turning 18? Consider suggesting that he or she execute a durable power of attorney and advance healthcare directives.

Posted on June 18, 2018January 22, 2021 by Lin Law

As your child prepares to begin college or enter the workforce, estate planning is likely the last thing on his or her mind—or yours. However, there are numerous situations in which young adults can benefit from executing basic estate plan documents. For example, should a child be in an accident and become disabled or incapacitated, even temporarily, his or her parents may not be able to act on the child’s behalf without court approval. Alternatively, the child may be out of the country (or simply out of town) and require his or her parents to do something as simple as signing a lease or sending money to the child from his or her bank account.

A Durable Power of Attorney for financial matters, if activated, allows a parent or other individual designated by the child to act on the child’s behalf with respect to most financial and/or business matters. Similarly, a Power of Attorney for Health Care authorizes the child’s agent to make medical decisions on his or her behalf, including decisions regarding medical consent and life support issues. Further, a HIPAA Authorization provides the child’s parent or other designated individual access to the child’s healthcare and treatment information.

For these reasons, we strongly recommend that all adults, even those who have just turned 18, execute a Durable Power of Attorney, Power of Attorney for Health Care, and HIPAA Authorization for Release of Protected Health Information.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Someday, Even Your Estate Plan Will Be Electronic

Posted on June 1, 2018January 22, 2021 by Lin Law

In today’s day and age, most transactions may be accomplished electronically. However, there is still one field where old-fashioned pen and paper is typically still required: Trusts and Estates. Given the sensitivity of estate planning documents, difficulties in authentication, and the potential for data loss or hacking, many people would be (rightfully) hesitant to create or store such documents electronically. Despite these obstacles, interest in electronic wills and other estate planning documents has increased in recent years.

The Uniform Electronic Transactions Act (UETA) of 1999, setting forth nationwide rules for electronic transactions, has been adopted in 47 states (including Wisconsin) and the District of Columbia. The Electronic Signatures in Global and National Commerce Act, passed by Congress in 2000, allows the use of electronic records and signatures in interstate commerce. However, both Acts specifically exclude application to the creation and execution of wills, codicils, and testamentary trusts.

Currently, Nevada and Indiana are the only states to have enacted legislation explicitly authorizing electronic wills (although, electronic wills have been successfully admitted to probate in other jurisdictions under the harmless error doctrine). Efforts to pass similar legislation in Florida, Arizona, New Hampshire, and Virginia have been unsuccessful.

In late 2017, the National Conference of Commissioners on Uniform State Laws (NCCUSL) formed a Committee for Electronic Wills. According to the NCCUSL website, the Committee will “draft a uniform act or model law addressing the formation, validity and recognition of electronic wills.” See http://www.uniformlaws.org/Committee.aspx?title=Electronic%20Wills. In addition, the Committee will consider expanding its mission to address other estate planning documents, including advance medical directives and powers of attorney for health care and finance.

It will be years, or even decades, before electronic wills and other estate planning documents become commonplace, but the trend is clear: someday, even your estate plan will be electronic.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.