Basic Law

Q: Why do I need an attorney?
Attorneys are trained legal professionals who can explain the laws to you; help you evaluate your options; negotiate or mediate conflicts with other people; prepare letters, court forms or other legal documents for you; and represent you in court. When deciding whether to hire an attorney, ask yourself, “what is at stake?” If anything significant is at stake, it is usually a good idea to at least meet with an attorney to discuss your options. The second question to ask yourself: how complicated is this? Unfortunately when it comes to the law, there are not very many things that are simple and easy to understand. Little mistakes in procedure or wording can seriously compromise your rights.

Q: What happens during our first meeting? How should I prepare?
Be prepared to briefly outline your problem, and be sure to bring copies of important papers. We will usually talk to you about several different ways to approach your problem, which vary in price, possible outcomes and time. We will also tell you about ourselves, so that you understand of our experience in handling your type of problem.


Elder Law

Q: What do elder law attorneys do?
Elder law attorneys help clients and their families deal with issues that confront people as they age and as they enter into the golden years of their life.

Q: What makes elder law unique?
Elder law is the only area of law defined by the clients we serve rather than the areas of law in which we practice. We like to deal “holistically” with our clients in talking about long-term health care planning including but not limited to Medicaid planning, financial viability, family dynamics, personal values, and personal preferences.

Q: Why do I need an Elder Law attorney?
The legal aspects with regard to the planning and administration of evolving healthcare options, benefits, and personal assets are complex and difficult to navigate. Elder Law attorneys specialize in a wide variety of areas that will help you weave through the legal maze while you obtain the best available care for your loved one, while making the best financial decision for yourself and your family. We will help you develop a comprehensive elder care plan integrated with your estate plan to help your family avoid the numerous pitfalls and common mistake that senior citizens face in their golden years.  Taking a proactive approach to legal planning can mean the difference in being prepared for the inevitable changes or being totally surprised. Pre-planning will help you to optimize the preservation of your lifetime savings and home.

Q: What should I expect from the initial meeting?
You will have an in-depth discussion with us that results in a tailored roadmap to meet your specific situation. We will provide comprehensive counseling on the legal aspects of health and long-term planning, public benefits, surrogate decision-making, tax considerations and other legal issues surrounding the planning and administration of elder care law.

Q: How can I plan financially for my senior years?
Financial planning has changed dramatically in the recent years because most individuals are outliving their funds. An excellent place to start is to invest in a long-term care insurance policy, maximizing the retirement benefits offered by your employer as well as consulting with a financial manager to create a personal savings and investment plan.

Q: What is Life Care Planning?
Life care planning is a holistic, integrated plan that concentrates on your estate planning needs,with a focused approach that helps families plan for, pay for, coordinate and secure quality of care for life.

Q: What is Long-Term Care insurance?
Long-term care insurance is a type of insurance developed specifically to cover the costs of long-term care services, most of which are not covered by traditional health insurance or Medicare. These typically include services in your home such as assistance with Activities of Daily Living as well as care in a variety of facility and community settings. You can select a range of care options and benefits that allow you a great deal of choice and flexibility in long-term care insurance policies.


Medicaid and Medicare

Q: What is the difference between Medicaid and Medicare?
is the federal health insurance program for persons who earn Social Security retirement benefits and are 65 years of age or older. Medicare also covers individuals of any age who have end-stage renal (kidney) disease and need dialysis or kidney transplants. It also covers people approved for Social Security Disability. Medicaid is a jointly funded, federal-state health insurance program for low-income and needy citizens. It covers children, the aged including, blind, and/or disabled and other people who are eligible to receive federally assisted income maintenance payments.

Q: Does Medicare cover the cost of an Assisted Living Facility?
NO.  There are three ways to pay for the cost of an Assisted Living Facility: 1) privately pay the monthly rate; 2) The Veteran’s Pension with Aid & Attendance benefit can contribute to the cost of your care; 3) long-term care insurance.

Q: Why Plan for Medicaid?
You plan so that if you need it, you will be eligible to receive Medicaid benefits, while preserving your hard earned assets for your family. As long-term care costs continue to rise, the challenge quickly becomes how to pay for these services. Many people cannot afford to pay $6,000 per month or more for the cost of a nursing home. Even those who can pay for a while may find their life savings wiped out in a matter of months, rather than years. Fortunately, the Medicaid Program can help. But in order to be eligible for Medicaid benefits, you have to meet certain financial tests that place limits on the amount of income and assets that you can have.

Q: How much income can I make and qualify for Medicaid?
The Medicaid income cap is $2022.00 per month in gross income. If your income exceeds this limit, you will need a Medicaid Income Trust to be eligible for Medicaid.

Q: My parents’ income is over $2000.00 per month. Can they still qualify for Medicaid?
There is a common misconception that an individual who makes over $2022.00 per month cannot qualify for Medicaid. If the resident’s gross monthly income is over $2022.00, you simply need a Qualified Medicaid Income Trust to reduce his/her countable income each month.

Q: What is a Medicaid Income Trust?
A Medicaid Income Trust is an Irrevocable Qualified Income Trust. It allows people who cannot afford nursing home care, but who have a monthly income that exceeds the Medicaid income cap, to be eligible for Medicaid coverage. The trustee is typically a family member, and the Medicaid applicant is the Trust beneficiary. The Miller Trust serves no purpose other than being a tool for Medicaid qualification.

Q: Isn’t it wrong to hide assets in order to qualify for Medicaid?
Hiding assets in order to qualify for Medicaid is a crime. That’s not what elder law attorneys who help their clients become Medicaid-eligible do. The cardinal rule is full disclosure to the government’s Medicaid agency. It is not illegal to structure one’s assets in an effort to qualify for Medicaid nursing home benefits. We advise our clients on the Medicaid law and what can and cannot be done within the law.

Q: Are there other ways to protect my assets?
Yes. The Medicaid law does not penalize you for spending your assets, only for giving them away. For example, you can make fair market value purchases to benefit yourself or your spouse, such as for home repairs and improvements or a burial plan.

Q: How can I protect my house?
The Medicaid applicant may retain a principal residence. The homestead is exempt property. After the Medicaid recipient’s death, however, the house can be sold and Medicaid must be reimbursed unless there is a surviving spouse or disabled or a minor child living in the home. You can, however, transfer the house to your spouse to remove it from consideration for estate recovery.

Q: If my spouse goes on Medicaid will I lose my house?
South Carolina is an Estate Recovery State but there are rules associated with Estate Recovery that do protect the well spouse. The simple answer is NO. Your house is protected from estate recovery during your lifetime. The state can place a lien on the property after your death for the amount of money they spent on your spouse’s care.

Q: Can I transfer my assets to my children just before I go into a nursing home and still qualify for Medicaid?
No. Under the 60-month Look-back Rule, eligibility for Medicaid may be denied or delayed if the person going into the nursing home transferred assets for less than fair market value within 60 months before his application for Medicaid benefits.

Q: Will my parents receive a lesser level of care if Medicaid makes the nursing home payments?
No -The nurses and CNAs are not aware who pays privately for their nursing home bed and who is a Medicaid patient.

Q: What happens to my Medicaid if I relocate to another state?
Medicaid varies by state, and your benefits may change depending on which state you move to.

Q: Do I have to spend all of my parents’ money before they can receive government benefits?
Not necessarily. There are legal avenues to preserve assets for future care needs and still qualify for Medicaid or VA Benefits. The key is full disclosure of all transactions to the appropriate government agency. You will need an attorney to help ensure that any asset preservation methods are allowed under the regulations for each program.


Wills and Trusts

Q: Why do I need a will; won’t my children equally divide what’s left of my estate?
Under SC Law, if you do not have a will, the government decides who will receive the assets of your probate estate.  If you have a surviving spouse, he/she is entitled to ½ of your probate estate, and your children would share the other ½ of your probate estate equally.  If you do not have a surviving spouse, your children may share the estates assets equally.  However, there are other concerns that can be addressed in a will. In the will you can provide for stepchildren, grandchildren and others who by law have no right to inherit without a will. Also you can waive inventory, appraisal and the posting of a bond, which will assist the Personal Representative named in your will in quickly probating the estate’s assets.

Q: What is a Revocable Living Trust (RLT)?
An RLT is an instrument where the trustor, trustee, and beneficiary are usually the same person or persons (i.e. – an individual or married couple). Assets can be placed into the RLT and taken out again by the trustor. The trustor can also revoke or amend the RLT.

Q: What is a Trust?
A trust is a legal way of holding, managing, and distributing property. There are a variety of different trusts available, and we can advise you on which trust is right for you, if any at all, based on your situation and future needs and/or concerns.  For instance, an A/B Trust can help decrease your tax exposure upon your death.  Another key advantage of having a trust is the fact that your assets are not required to go through the probate process upon your death.  In some cases, a trust can protect your assets or the assets you leave to your loved ones from creditors/liability.  In other cases, a trust is a great way to protect your children’s assets if you’re in a second marriage.

Q: My mother’s will is 20 years old. Do I need to update it?
Any important legal document should be updated or reviewed every ten years or when there is a change in your circumstances (death, marriage, birth, divorce, change in state of residence, etc.). For a will to be valid in SC it needs to be signed by the testator and two witnesses. An important part of a will is a self-proving affidavit signed by the witnesses and notary. The self-proving affidavit streamlines the probate process both in terms of time and costs involved.

Q: My father just passed away. Do I need to probate his will?
The simple answer is yes.  However, it depends on how your father’s assets are titled. If he owns any real property (land) and it is titled only in his name or titled with someone else without “right of survivorship,” you will have to probate his will to transfer title. Also, you must probate his will to transfer any personal property that is titled in his name that does not have a paid on death “designation” (POD) or a named beneficiary.

Q: What does it mean to probate an estate?
Probate is a court-supervised procedure for administering the assets of a deceased person. The function of probate is to pass title to the decedent’s assets to the named beneficiaries in his/her will, or in the alternative, the takers of his/her assets under the SC Probate Code intestacy statute.

Q: My parents just moved to South Carolina. Do I need to replace their estate planning documents?
Maybe. It’s best to schedule an appointment with an attorney in South Carolina to review your documents to determine if they comply with our state statutes.  The laws regarding Wills, Trusts and other Estate Planning Documents vary from state to state and documents valid in one state may not be valid in another.

Q: Do I need a Special Needs Trust?
Special Needs Trusts are for individuals with disabilities that cannot provide for themselves; a way to provide for a better quality of life for these individuals without them losing their governmental benefits. Money placed in a properly executed Special Needs Trust can provide for transportation, recreation, entertainment, special therapies, equipment, and other comfort items without that money being counted as an asset of the special needs person. A Special Needs Trust can be made by the disabled individual with his/her own funds or it can be made by someone else and funded with assets that belong to someone other than the individual with the disability.

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Q: Who should I name as my agent under my POA?
Traditionally, for married couples, each spouse will name the other spouse to act on their behalf. A matter that should always be considered in making this appointment is the individual’s capacity. In other cases, a competent child is usually chosen to act on behalf of a parent, or both parents, if capacity is an issue.

Q: Can I revoke my power of attorney (POA)?
Yes, a simple letter notifying your current attorney in fact (agent) that you have revoked your power of attorney is usually sufficient. Be sure to execute a new power of attorney so that you always have someone to act on your behalf if the need arises.

Q: I have most of my property and bank accounts held jointly with my spouse and/or adult child. Isn’t that good enough if I become incapacitated?
In order for someone to act on your behalf for all your affairs, you must have a properly drafted power of attorney in place. Although your spouse or children may have access to the accounts you hold jointly with them, they have no right to the accounts that are not held jointly and, more importantly they cannot act as your agent in any matters. For example, without a power of attorney, they cannot sell any real property you own, they cannot make any business decisions for you, they cannot sign for you on any documents that need your signature, etc. All good estate plans include a General Durable Power of Attorney to protect you in case of incapacity.  If you or your spouse were to lose capacity (i.e. – stroke, car wreck, etc.) and there is no Power of Attorney in place, then your loved ones will be forced to institute Guardianship/Conservatorship proceedings in court.  This option is much more expensive and takes a lot longer to achieve the same result.

Q: What is the difference between an advance directive and a power of attorney?
An advance directive is for healthcare matters, whereas a power of attorney is for financial and property matters.

Q: Can I act on my father’s behalf immediately once he has signed his Power of Attorney?
That depends on whether the Power of Attorney is immediate or springing? An immediate Power of Attorney allows the designated individual to act immediately with the powers defined in the document. A springing power of attorney defines what must happen before the designated person can act, such as, two doctors declaring the “principal” incapacitated.

Q: What is a Durable Power of Attorney?
Durable means that the Power of Attorney remains effective even if a person becomes incapacitated. Review your power of attorney and make sure it has the special wording that states the power survives the principal’s incapacity.

Q: What is a DNR?
A DNR is the acronym for “do not resuscitate” and means that no cardiopulmonary resuscitation efforts will be used to prolong the life of a patient. A doctor writes a DNR order after a conversation with a patient or the patient’s healthcare power of attorney (if the patient does not have capacity). Some institutions are now using the term “AND” which means, “allow natural death” instead of using the term DNR.

Q: What is a Guardianship?
A Guardianship is a legal relationship wherein a court appoints a person (a Guardian) to make decisions for another person (a Ward) who has lost sufficient capacity to make or communicate significant responsible decisions concerning his or her health and safety. The relationship between the Guardian and the Ward is much like that between a parent and a child. The decision-making power removed from a person should be as limited as possible and every effort should be made to observe the adult’s individual rights and dignity. A Guardian is in charge of the physical person of the Ward.

Q: What is a Conservatorship?
A Conservatorship is similar to a Guardianship except that the adult has lost sufficient capacity to make or communicate decisions regarding the management of his or her property.

Q: I have a Power of Attorney; do I still need to get a Guardianship?
Maybe, although a POA affords you the ability to handle someone’s financial and legal matters; it does not give you authority over the physical person. When someone has a guardian appointed, they generally lose the right to contract for marriage, consent to medical treatment, establish a residence or change their domicile. The guardian makes decisions regarding that person’s support, care, education, health and welfare. The guardian takes custody of the person and establishes a dwelling place for them. For example, if your mother does not want to move to an assisted living your POA does not give you the authority to keep her there. You may need to file for Guardianship in her local court to have the authority to keep her in the assisted living.


Assisted Living

Q: What care options are available for the elderly?
There are a multitude of options available for elderly care. There are providers available from the lowest level of care that is delivered in the home and can be requested by the hour or entire day (24 hours) facilities that provide daily care.

Q: How do I find a quality nursing home?
All nursing homes in South Carolina have to follow the same state mandates so theoretically they should all deliver the same quality of care. Realistically, some are better than others and the only way to know is to schedule tours of at least three facilities so that you can make comparisons. It is best to choose nursing homes that are convenient to where the family lives so that they can visit. As you tour the nursing homes, take along a nursing home checklist of things to look for and questions to ask. In addition, ask neighbors, friends, church members and healthcare professionals for recommendations. Once your family member is in a nursing home the quest for quality care continues. You must advocate for your loved one so that they get the care that they need and deserve.

Q: Is it difficult to find a nursing home that will take a resident that is on Medicaid?
It can be difficult to find a nursing home if you are in a crisis situation and your family member is coming from home rather than from the hospital. Most nursing homes prefer that the residents come for rehabilitation after a hospital stay. After they finish rehabilitation the nursing home will often offer them a long-term place at the facility. At that point a Medicaid application can be submitted to the state. If your family member is coming from home or is not going to receive rehabilitation then it can be more complicated and your loved one may be put on a waiting list. It is often helpful if you can offer one month of the cost of the nursing home upfront to get them into the nursing home.

Q: If my plan is to stay home, what in-home and community services are available?
Most communities are filled with resources to help you “age-in-place.” Staying at home is the goal for many individuals, and companies have responded by providing: Home Care Assistance, Adult Day Programs, Meals on Wheels and Home Modification to make your home more accessible.  However, each medical situation is different and depending on the level of care required for the individual, staying at home may not be an option.

Q: Will Medicare pay for my nursing home costs?
No. Medicare does not the pay the expenses of long-term care incurred for nursing home care.
In the United States, the government program that pays for most nursing home care is Medicaid, which is a federal and state medical program for persons who meet certain asset and income levels. Medicare pays limited nursing home benefits for patients who have had a three-day hospital admission and are released for rehabilitation to a nursing home. Some veterans are entitled to veterans benefits to help pay for their nursing home care.

Q: My dad needs nursing home care, but my mom is still independent and healthy. How can my mom have enough money to live at home after paying for dad’s nursing home care?In SC, Medicaid allows the at-home or “community spouse” to retain up to $66,480.00 in assets and the institutionalized spouse or “nursing home spouse” still qualifies for Medicaid, so long as dad (nursing home spouse) has less than $2000 of assets in his name and his monthly income is less than $2022.00/month. The community spouse can also retain the house and a car. In addition, mom’s income is completely protected from Medicaid. There are a variety of ways to preserve your assets that exceed these figures and still qualify for Medicaid.  Our office will put together a Medicaid plan that is right for you, by helping preserve your hard earned assets for your children and grandchildren rather than spending them on nursing home care.  

Q: If my spouse is going into a nursing home, can he or she transfer all of his or her assets to me and qualify for Medicaid?
Possibly. The community spouse can retain the house, one car and up to $66,480.00 in other assets. The institutional spouse can retain $2000.00. Any transfers to people, other than the spouse, can result in a penalty for Medicaid, but there are a variety of non-countable resources that we can help you fund and still qualify for Medicaid.

Q: What can I expect to pay for a skilled nursing facility in the SC Upstate?
In South Carolina the average cost of a skilled facility is $5644.12. In the SC Upstate, the cost is generally between $6000.00 and $8000.00 per month. That does not include the cost of prescriptions, supplies, etc.

Q: I was just told my mother no longer qualifies for rehab. What do we do now?
If an individual stops making progress while in rehab, Medicare will stop paying for their rehabilitation care in the nursing home. If your loved one is unable to go home or back to an assisted living facility, then a long-term stay at the skilled nursing facility may be necessary at private pay rates.

Q: What is hospice care?
Hospice care provides humane and compassionate care for people in the last phases of an incurable disease so that they may live as fully and comfortably as possible. Health professionals and volunteers give medical, psychological and spiritual support. The goal of the care is to help people who are dying have peace, comfort and dignity. The caregivers try to control pain and other symptoms so a person can remain as alert and comfortable as possible. Hospice programs also provide services to support a patient’s family.