Bob Linhares Estate Planning & Elder Law

12/29/2022

I represent clients who are seeking to be appointed by the probate court as guardian and/or conservator over children under the age of 18 years old or adults who are unable to care for themselves and meet the standard required under Missouri law.
A guardian is responsible for caring for the person's (called a "ward") medical care, safety, living arrangements and conditions, education, support and maintenance. In general, the guardian "stands in the shoes" of the ward in making all decisions that are in the best interest of the ward.
A conservator is responsible for the ward's property. Property includes any real estate, bank accounts, stocks, vehicles, insurance proceeds, inheritance or other types of personal property that ward has. As a conservator, the court authorizes you to take possession of the ward's property and maintain or use the property for the ward as authorized by the Court.
Under what circumstances is it necessary to be appointed as a guardian or conservator? The following are a few common examples:
1) Conservatorship for a minor: A child under age 18 years old receives property. An example would be when a child is the beneficiary of a life insurance policy or investment account or is a beneficiary on a beneficiary deed for real estate. In these cases the minor child cannot receive the funds or own the property in their name because of their status as a minor. In such situations, the parent or legal guardian of the child has to actually apply through the probate court to become conservator for the child and maintain the property or hold the funds for the minor child until the child reaches 18 years old. This may seem confusing or surprising to a parent, but it is required. The conservator must set up a separate bank account for the minor ward and get the court's permission in order to spend funds from the account. An annual accounting has to be provided to the Court each year.
Guardianship for a minor: A child under 18 years old does not have parent or the parents of the minor child have abandoned the child. A common example would be where the grandparent, aunt or other relative is caring for a child because one parent is deceased and the other parent has not been involved in the child's life. In such a case, the grandparent, aunt or relative will need to apply to be appointed a the child's guardian. If the living parent who has not been involved in the child's life signs a consent form the case can be handled through an uncontested court hearing. However, if the living parent does not agree to sign the consent form or cannot be located, the hearing is treated as a contested hearing and the person seeking to be appointed as guardian will need to establish that the parent has abandoned or neglected the child.
Guardianship and Conservatorship for an adult: The standard in Missouri for a guardian or conservator to be appointed over an adult is as follows:
Guardian: Determination by a physician or other medical expert that the person is unable to receive and evaluate information or to communicate decisions to the extent that he or she lacks the capacity to meet the essential requirements for food clothing, shelter, safety or other such care and that serious physical injury, illness or disease is likely to occur.
Conservatorship: Determination by a physician or other medical expert that the person is unable to receive and evaluate information or to communicate decisions to such an extent that he or she lacks the ability to manage his or her financial resources.
In all guardian and conservatorship matters the court appoints an attorney for the ward and depending on the circumstances and level of competency the ward has he or she may seek to contest the appointment of a guardian or conservator. In certain circumstances only a limited guardianship or conservatorship may be needed. For example a limited guardianship may allow the person to be able to retain voting rights, but not enter into legal contracts or have a bank account in their name.
In future posts I hope to get into some more of the details concerning guardianship and conservatorship appointments. If you or someone you know has questions or needs help with a guardianship or conservatorship matter please do not hesitate to reach out to me.

12/15/2022

For those individuals who receive Supplemental Security Income (SSI) or Medicaid benefits, having a Special Needs Trust may be very important. These types of trust have been approved by Congress and the Courts as a way to help an individual receiving certain public benefits from not becoming disqualified from receiving those benefits in situations such as when they inherit money, receive gifts or recover money from a personal injury damages award or settlement. The money in the Special Needs Trust can be used to supplement or pay for certain products or services that are not covered by their Medicaid and or SSI benefits.
There are two types of Special Needs Trust. They are sometimes referred to as first-party trust and third-party trust and the type of trust that is needed depends on a number of factors and circumstances.

For example, a third-party trust would typically be set up by someone such as a parent or grandparent of an adult or minor child receiving SSI and Medicaid benefits. If the child on public benefits received an inheritance directly in his or her name, the inherited funds could very well end up causing the child to lose their benefits. However, if a third-party special needs trust is set up for the child before the inheritance is received, the third-party special needs trust could be designated as the beneficiary of the funds, and the child would not lose public benefits and the inherited funds could be used to pay for services or products the child may need that are not covered by the benefits they are receiving.

A first-party special needs trust is funded with the assets of the individual who has the disability. As an example, first-party special needs trusts are frequently used when a disabled person on public benefits under age 65 receives an inheritance but no third-party special needs trust was in place. First-party special needs trusts also can be used when a person under age 65 becomes disabled through a stroke or other disease or illness and needs to qualify for Medicaid in order to go into a skilled nursing care facility or receive special care services at home. In such a case, if the person who has become disabled has assets that are over the limits allowed to qualify for Medicaid, the first-party special needs trust may be used to help the person qualify for Medicaid.

There are strict requirements that have to be met and followed in qualifying for, setting up and administering third-party and first-party special needs trust and many details that cannot be explained in this brief post, but I would be happy to meet with you to discuss these trusts in greater detail and see whether they can be of help.

12/15/2022

https://www.cnn.com/2022/12/07/success/retirement-savings-secure-2-0/index.html

Congress Is Debating New Retirement Rules: Seven Changes Are on the Table
New retirement rules could make it easier for Americans to accumulate retirement savings — and less costly to withdraw them — if lawmakers pass a retirement reform package before the end of the month. The House already passed its own version of retirement plan rule changes, and two key Senate committees passed their own versions. Since the summer, lawmakers have been trying to stitch the three bills together into one large package known as "Secure 2.0." After it’s finalized, one idea is to attach that package to an overall government spending bill that may be voted on by both chambers of Congress before the holidays. But if lawmakers can’t agree on such an omnibus spending bill, Secure 2.0 likely would have to be reintroduced next year for the new Congress’ consideration. Although the details are still under wraps and no legislative language has been released, here’s a look at seven of the savings provisions very likely to make it into any final retirement package, according to two retirement policy experts who have been following the process closely. Click on the link below for the possible changes.

SOURCE/MORE: CNN BUSINESS

New retirement rules could make it easier for Americans to accumulate retirement savings — and less costly to withdraw them, if lawmakers pass a retirement reform package before the end of the month.

08/19/2021

Check out my video regarding how an unmarried individual who has to enter into a skilled nursing facility can save his or her assets using the Medicaid Gift/Annuity Strategy.

01/08/2021

As we begin a new year it is always a good idea to consider whether you have an estate plan in place that protects you and your loved ones. Maybe you have been putting off creating an estate plan thinking it is too complicated or you just don’t know where to start or are uncertain about your options. Maybe you already have an estate plan but you need to make some changes and make sure it is up to date. I can help. I will sit down with you, listen to your concerns, answer questions, provide you with options and ultimately create an estate plan that you feel good about. I encourage you to give me a call at (314) 725-1118. I enjoy talking with people and helping them through this process.

08/19/2020

How has Covid-19 changed you and your family? According to an article published by Kaiser Health News (https://khn.org/news/what-seniors-can-expect-as-their-new-normal-in-a-post-vaccine-world/), people over age 60 (and probably younger) are rethinking what is important to them and how they will live differently going forward, especially once a Covid vaccine becomes available. Perhaps you and your family members have already made the following changes described in this article:
* Telemed visits with doctors rather than in-person exams.
* Less in-restaurant dining and more delivery or curbside pickup.
* Road trips instead of air travel.
* Living at home or with family members versus an assisted living residence, or in-home care versus nursing home care.

I can help with this last potential change in your life. If you are a caregiver for an older family member, or if you receive care from a family member, please consider working with me to create a Caregiver Agreement. This Agreement will specifically spell out the kind of care to be provided and the compensation the caregiver will receive. Generally, income received by a caregiver for a family member is taxable. A Caregiver Agreement is especially important if the older adult receives government benefits for in-home care or at some point needs to go into a skilled nursing care facility that is paid for by Medicaid. Without such an agreement, any payments to the caregiver family member are considered to be an “improper transfer” that results in a penalty period being imposed, which may delay an older or sick family member from receiving Medicaid benefits that pay for his or her stay at a skilled nursing care facility. A Caregiver Agreement may also help other family members avoid misunderstanding about how money is paid out to the caregiver.

Finally, under the Medicaid Child Caregiver Exemption, if the caregiver is a child of the person receiving care and lives full time for a period of at least two years in the home of the person who is being cared for, and a doctor indicates that the care being provided is necessary to keep the older or sick person from having to go into a skilled nursing facility, then if certain other criteria are met, the child may be eligible to apply for the Medicaid Child Caregiver Exemption and, if approved, the home can legally be gifted or transferred to the caregiver without being considered an “improper transfer” for Medicaid purposes. This means that no Medicaid lien would be placed on the home of the older or sick family member if eventually he or she needs to go into a skilled nursing facility and receive Medicaid coverage that pays for the stay. The Caregiver Agreement and related time-keeping and payment records of the caregiver can provide important documentation necessary to establish that the caregiver provided care for the two-year period. There are strict requirements for and specific language which should be included in a Caregiver Agreement, and an attorney should be consulted before preparing such an agreement. Likewise, an attorney should be consulted concerning the full list of requirements that need to be considered in determining eligibility under the Medicaid Child Caregiver Exemption.

08/17/2020

A revocable trust is only valuable to you and your loved ones for avoiding probate if it is properly funded. In other words, certain assets should be titled in the name of your trust or the trust should be designated as the beneficiary. For example:
Real Estate - A General Warranty Deed should be recorded to title your real estate in the name of your trust.
Investment Accounts - Your regular investment accounts should be titled in the name of your trust or the trust should be designated as the beneficiary.
Retirement Accounts - Your IRA accounts will remain in your name, but the particular beneficiary designation will depend on considerations such as the amount of funds in the IRA, your age and marital status, and the age and health conditions of your spouse and children.
Bank Accounts - Your checking and savings accounts should be titled in the name of your trust or include a “Payable On Death” (POD) designation identifying your trust as the recipient of the funds upon your death.
Vehicles and Watercraft - Your vehicles, boats, trailers and motors should include a “Transfer On Death” (TOD) designation to your trust on the title.

My service to you as your estate planning attorney doesn’t stop after you sign your trust and last will and testament. I work with you and your investment advisors to be certain your trust is funded correctly and follow up to confirm that the requested changes are made.

Funding your trust properly will assure that the assets will be distributed properly for any purpose for your beneficiaries. Your trust should include provisions for beneficiaries who are disabled or eligible for needs-based governmental benefits, like Medicaid, to protect the assets by placing them in a trust that doesn’t count toward qualification for benefits.

What would happen if you die after creating a trust but one or more of your assets was not titled in the trust or did not have a designated beneficiary? The personal representative you designate in your last will and testament would have to file the will with the probate court and open a probate estate in the county where you resided at the time of your death. The will would then direct that the asset be transferred into your trust and distributed according to the terms of the trust. Probate estates have a cost in dollars for fees for court filing, publishing notices and your attorney’s billing. Also, there will be a cost in time for court approval, which varies by county (from a few weeks to several months) and, in the case of a full estate, a waiting period of six months after the notice of the issuance of Letters Testamentary is published for any claims to be filed before the estate can be closed.

05/29/2020

Here's my latest video, which describes financial and healthcare durable powers of attorney and why they're important elements of your estate planning. Because I believe in the importance of these documents, I'm offering a healthcare durable power of attorney free of charge for anyone who views the video and calls me and mentions the promo code from the video.

Learn how to protect your financial and physical health from an experienced estate planning and elder law attorney

04/21/2020

Last week I used the quote, "The past no longer exist and the future is not yet here..." to illustrate the point that instead of worrying and creating anxiety and stress about the future, the healthier approach to life involves developing and implementing a plan of action. As an estate planning attorney that means developing and implementing a comprehensive estate plan that assures your property is passed on to your spouse, family or whoever you choose to be your beneficiaries in a way that hopefully makes their life a little better.

Today I want to focus on the first part of the quote which says "The past no longer exist...". The point here is not to forget about the past or our ancestors. There is always something that can be learned from the past, whether it is from our own mistakes or successes or those of others. Our ancestors are always with us, both physically in our DNA and spiritually. The point being made in the quote is that we do not need to torment ourselves by reliving the past in our mind over and over. We have a choice. We can learn the lesson and then live out the lesson in a positive way.

As an estate planning attorney I often have people who come to me to develop an estate plan because they had a parent or loved one who did not have an estate plan and they experienced first hand the needless difficulties and strife it created and do not want their family to go through the same thing they experienced. Alternatively, I have people who come to me to develop an estate plan because their parent or loved one had a good estate plan in place which made the experience much less stressful and they want to do the same for their family members.

Make the decision to develop and implement an estate plan that can make a positive difference.

04/14/2020

"The past no longer exists and the future is not yet here. There is only one single moment in which we can truly be alive and that is the present moment. Being present in the here and now must be our practice." From the book "you are here" by Thich Nhat Hahn.

Reflecting on the meaning of this quote can be helpful in not letting your mind take control of your body and emotions. It points to a simple but elusive truth. So often our minds are either obsessing over something that happened to us in the past or racing ahead and worrying about concerns we have about the future.

As an estate planning attorney who helps people plan for the future, these words might seem to be contradictory. But I believe planning for the future is not the same as worrying about the future. Stress and anxiety occur when all you do is worry but never move forward with a plan. I can help you develop and implement an estate plan, whether it be a Will, Trust, financial or health care power of attorney.

04/08/2020

Many thanks to clients who wrote reviews on my profile on Avvo, a lawyer search website. Follow this link to see more:
https://www.avvo.com/attorneys/63105-mo-robert-linhares-1074991.html