The areas covered by the broad field of “Elder Law” and “Probate” are far-reaching, and affect for more than just the senior citizens among us.  A consultation with a reputable Probate and Elder Law Attorney can go a long way toward ensuring that you feel confident that your needs, and the needs of your family members, are provided for, both now and in the future.

Many people who consult an Elder Law attorney are concerned about the cost of paying for long-term care for themselves or for a close relative. Health insurance and MediGap insurance do not cover the costs of long-term care, although Medicare does provide limited coverage under some circumstances. However, insurance companies sell long-term care insurance (“LTCI”) that is designed to cover those costs. Additionally, for those who require the level of care needed in a nursing home, it may be necessary to investigate possible eligibility for Nursing Home Medicaid, a program which can assist in covering the difference between the income of eligible persons and the cost of the facility at which they reside.
The rules governing Medicaid eligibility are complex, and it is important to thoroughly understand these rules prior to making any major changes in your estate in an effort to qualify for Medicaid.

In Georgia, each county has a Probate Court, which handles wills, supervises estates, grants guardianships and conservatorships over minors and incapacitated adults, and hears incompetency proceedings. An attorney who states that they practice in Probate Court may primarily handle the probate of estates, or may both handle the probate of estates and also handle guardianship and conservatorship proceedings. It may be helpful, when choosing an Elder Law attorney, to inquire if they have experience in the particular aspect of Probate Court proceedings in which you find yourself involved.

If an individual fails to sign a power of attorney prior to becoming incapacitated, it may become necessary for other to seek guardianship and conservatorship over them. A “guardianship” may be set up to take care of an adult who is not capable of making personal and/or financial decisions for himself or herself. Under a guardianship, a person or an institution, called the “guardian,” has the legal power and duty to handle the personal affairs and a “conservator” the financial affairs of an incapacitated adult, called the “ward.” For example, the guardian may need to consent to medical treatment, and the conservator may need to own and manage property.
In Georgia, the county Probate Courts set up guardianships and conservator-ships and appoint guardians and conservators. Many attorneys who practice in the area of Elder Law represent individuals who are seeking guardianship and/or conservatorship over someone else, as well as serving as counsel for the person over whom guardianship and/or conservatorship is being sought.

A will is your statement of your desires for handling and distributing of your money and property after your death. The need for a will is not a matter of age or monetary status. You need a will unless you want the handling and distribution of your money and property to be distributed as provided by Georgia law.
A will is an essential planning tool for all stages of your life. You can change your will at any time, and you should change it to match changes in your personal or financial affairs. In fact, you should review your will or have someone review your will periodically to ensure that there have been no substanitla changes to your circumstances that would affect this document.
A trust may be set up if a person wants help with handling and distribution of his or her money and property, and can be set up during his or her lifetime, or as part of an estate plan. Competent financial and legal advice is needed when considering setting up a trust, as there are many factors to be considered prior to choosing a trust as a vehicle for managing your property during lifetime or after your death.
People often ask about “living trusts” or “revocable living trusts.” While these can be very helpful in certain situations, the expense and management of these trusts should be considered, and the pros and cons weighed carefully, before any decision is made to establish a revocable living trust. The goal of a revocable living trust is to avoid probate, but there is wide variation in states as to the expense and difficulty of the probate process, and we are fortunate in Georgia that our probate process is relatively straightforward and inexpensive.

A financial power of attorney allows the principal to name one or more agents to handle the principal’s financial affairs. A financial power of attorney will not give the agent(s) the power to make health care decisions or personal decisions for the principal.
It is very important to consider carefully a decision to use a financial power of attorney. You should think about what financial decisions you would want your agent(s) to make and who would be the best agent(s) to make those decisions. You should not let anyone pressure you into setting up a financial power of attorney or into giving any power to your agent(s) that you do not want to give.
Durable Powers of Attorney for Health Care (Advance Directive for Health Care)
A Georgia law specifically authorizes the use of a durable power of attorney for health care (“DPAHC”) or Advance Directive for Health Care. A DPAHC or Advance Directive for Health Care is a power of attorney in which the principal gives the authority to one or more agents to make health care decisions for the principal if he or she becomes disabled, incapacitated, or incompetent.
A new format was approved by the legislature and became effective as of July 1, 2007. The new form is entitled “Georgia Advance Directive for Health Care” and incorporates much of the same information as the previous form, with some specific differences. The most obvious change is that the Living Will has now been incorporated as part of the Advance Directive for Health Care, under a section entitled “Treatment Preferences.” DPAHCs and Living Wills signed prior to July 1, 2007 are still valid.

A “power of attorney” is a legal document in which a person, called the “principal,” gives to another person, called the “agent” or “attorney-in-fact,” the authority to make decisions for the principal. A “general” power of attorney gives broad power to the named agent to act on behalf of the principal, while a “limited” power of attorney is generally used for one specific purpose. Traditionally, it is recommended that all adults who have capacity to do so, regardless of age, execute powers of attorney for finances and for healthcare, so that, if an emergency arises, they have had the opportunity to designate the individual whom they want to handle their healthcare decisions and financial issues.
By signing a power of attorney, the principal does not give up any rights. The principal may, while competent, always make his or her own decisions. In fact, a power of attorney can provide that it does not become effective unless and until the principal becomes incapacitated.

Many people have heard the word “probate” or have seen the phrase “Elder Law” in various publications, but find that they do not understand what these really mean. Elder law began in the early 1980′s as an area of practice in the legal field, in recognition of the fact that our population is steadily aging—the population of those over 65 is expected to double in the next 25 years—and that the issues that older Americans face are sometimes different than those that younger generations face.
By 2030, almost one out of 5 Americans will be over 65. The age group of those 85 and older is the fastest growing segment of population. As the population ages, issues arise. For the senior citizen, the issue may be his or her own care, or the care of a spouse. For the children of senior citizens, the issues are often related to finding a balance between independence for their parents, ensuring that seniors are living in safe and healthy environments, and, ultimately, how to cover the costs of those living arrangements, whether living at home, in a retirement community, or in a facility with greater levels of care.
The first step towards ensuring that an optimal arrangement is reached is making sure that planning documents are in place. There are a number of potential documents which may or may not be needed, and consulting an elder law attorney can help individuals to narrow down which documents they already have, and which documents they still need.