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- Medicaid
Medicaid consultations include a review of
the current rules governing Medicaid eligibility. By applying those rules
to the Client’s specific financial and medical situation, solutions
are developed. The Client can then weigh the pros and cons of each optional
solution. Hopefully, the Client leaves this consultation with a plan of
action a plan that preserves to the extent legally possible the Client’s
assets for the benefit of the Client’s spouse or family members.
- Protecting Assets
The notion of protecting assets arises from
a fear that assets may be taken by governmental action or lawsuits. One
of the more common fears is that a Client’s assets may be taken in
exchange for receiving governmental assistance, e.g., Medicaid benefits
for long-term care. A Medicaid consultation is generally required to determine
what if any protection may be available.
- Guardianship
A guardianship may become necessary when a
person is incapacitated.
An "incapacitated person" means any person who is impaired
by reason of mental illness, mental deficiency, physical illness or disability,
chronic use of drugs, chronic intoxication, or other cause, except minority,
to the extent of lacking sufficient understanding or capacity to make or
communicate responsible decisions.”
- Conservatorship
A conservatorship is similar to a guardianship,
except a conservator is over the financial affairs of a person needing
protection. While a guardian is over the person, a conservator is over
the person’s assets. To appoint a conservator, the Probate Court
must find that the person
“is unable to manage the person's property and affairs effectively
for reasons such as mental illness, mental deficiency, physical illness
or disability, chronic use of drugs, chronic intoxication, confinement,
. . .”
- Wills
Everyone needs a Will. Even those with a Trust
need a Will. A will provides instructions on how to distribute your estate.
A Will can be simple or complex. However, a Will is no good if not written
well or if it does not conform to the statutory requirements for a Will.
- Living Trusts
A Trust holds your property during your lifetime.
Trusts have been particularly useful in avoiding federal estate taxes.
With changes in the estate tax laws, trusts have become less important
for that purpose. Another benefit of a trust is to protect distributions
to children of previous marriages. That is, each spouse with children from
a prior marriage can make sure that their intended gifts upon death will
be made as planned. Trusts are generally more expensive to create, but
property held by a trust does not have to be probated.
- Special Needs Trusts
A special needs trust is designed to protect
certain assets of a person under the age of 65 who is receiving governmental
assistance. A special needs trust must be irrevocable. That is, it cannot
be changed. A family member or a third party may act as the Trustee. The
special needs trust may not provide for ordinary expenses of food, shelter,
clothing, and/or other incidentals of support currently provided by governmental
entities. The trust must be created by a parent, grandparent, or legal
guardian. It can also be created by a Court Order. A special needs trust
must meet statutory requirements and is best prepared by an attorney who
has previously prepared such trusts.
- Probate
Matters that require “Probate”
include the probate of a Will, appointing a Personal Representative for
a deceased person’s estate, appointing a guardian or a conservator,
and other issues relating to a Trust, a person’s estate, or evening
changing one’s name. The probate of a Will is generally quick and
inexpensive. Anyone contesting a Will, a Trust, or the appointment of a
Personal Representative or Trustee must do so in the Probate Court.
- Small Estates
The term “small estate” is used in the Probate Code to identify those estates that do not require being processed through the Probate Court. In Utah, a small estate is defined as an estate that does not exceed $100,000 in total value. An estate that is $100,000 or less, can be transferred through a Will without going through the Probate Court. A “Small Estate Affidavit” is all that is required. However, if the deceased person owned any real property (meaning land), the Probate Court is necessary regardless of the value of such real property.
- Power of Attorney
A power of attorney (“POA”) is
one of the most common legal documents used to grant someone else power
to do something for and behalf of the person granting the power of attorney.
The holder of a POA acts as the agent for the grantor, or the principal.
A POA can be for something specific or general. It can expire on a date
certain or be good until revoked. It can be “durable” or it
can terminate upon the incapacity of the principal. A POA is widely used
as an important estate planning tool.
- Advance Health Care Directives
Utah recently enacted the Advance Health Care Directive Act (the “Act”), found at Sections 75-2a-101 thru 124, Utah Code Annotated. The Act provides a “form” for individuals to specify how they want their medical treatment to take place, including end of life conditions. The Act repeals the prior Living Will and Special Power of Attorney for Medical.
This became effective January 1, 2008, but was then amended during the 2008 Legislative Session in Senate Bill 161 (Second Substitute).
To facilitate using the statutory form for making an Advance Health Care Directive, Mr. Jensen has prepared a customized Form that may be easier to use than the one outlined in the Act. Mr. Jensen’s Form is available in pdf format by simply clicking below. The Form may be printed (see the “Print Form” Button at the end of the Form), or you can fill in all of the information, except initials and signature, online before printing it. You can also choose to send it by e-mail to Mr. Jensen, provided that you desire to retain his services to review and administer for Form’s execution (initialing and signing). If so, you will need to make that request to him in the message area of the e-mail before clicking on “send.”
Utah Advance Health Care Directive Form
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