Q&A

The following are common questions we hear. Click the question below to see our answer.

In most cases, we do not charge a fee for the first meeting with a potential new client.

The attorneys in our firm each have a different hourly rate; however, we typically do not do hourly rate work.  We often charge a flat fee for our services.  Every case is different, and it’s hard give general information about fees, but for Estate Planning and Asset Protection Planning cases, our fees can range from $500 to $5,000 depending on what we do.  Crisis Planning for medicaid or VA benefits can be more expensive.  Fees in a typical Crisis Plan can range from $5,000 to $15,000, depending on a number of factors.  But we always explain in detail the benefits and draw backs of any plan we propose and let our clients know the fees for all options up front.

CELA is an abbreviation for the designation of Certified Elder Law Attorney.  There are only three Certified Elder Law Attorneys in the state of Arkansas, and Justin Elrod and Todd Whatley are two of them.  To receive this designation, an attorney must specialize in Elder Law for at least five years, participate in significantly more continuing education courses than most attorneys, and pass a specialized test written and graded by other Certified Elder Law Attorneys.

No, not necessarily.  Some firms that indicate that they do “elder law” primarily have Estate Planning practices and do not do Asset Protection Planning or Crisis Planning for Medicaid and VA Benefits.  Others who do accept these cases work in the Medicaid field but do not handle VA Benefits cases.  Elder law is a broad field, and those in need of elder law services should make sure they work with an attorney experienced in all areas of elder law, not just one or two, so that they can consider all available options.

Wrong.  A will is, by definition, a probate document.  It is a set of instructions you leave for a probate judge to make sure your final wishes are carried out.  A will does nothing to help keep your family out of probate court.

Probably, if your goal is to stay out of probate court.  You can keep certain assets, such as bank accounts, out of probate with death beneficiary designations.  However, many people use trusts to maintain control of their home during their lifetimes while avoiding probate court at death.  Probate generally costs between 3% and 5% of the value of the estate, so the probate for a $150,000 home can cost as much as $7,500, even if there are no other probate assets.

Right now.  Even if you don’t have significant assets, you should have estate planning documents designating who you would want to take care of your children if you were gone.  And whatever assets you may have should pass to your children in trust, not outright, so that someone else can look out for your children’s finances.  Also, if you have life insurance, you may be leaving more to your children than you thought.  It is wise to have a trust for your children’s benefit designated as the beneficiary of your life insurance to ensure your children are taken care of.

Yes, use of one or more trusts can accomplish this goal.  Many people in this situation don’t realize that without proper estate planning, all of the marital assets would likely pass from one spouse to the other at the death of the first spouse, then everything would pass to that surviving spouse’s children when he or she dies. That would completely leave out the children of the spouse who died first.  It is especially imperative for families in situations like this to explore all estate planning options to ensure something like this doesn’t happen to them.  We can even set up plans that become irrevocable when the first spouse dies to ensure that the surviving spouse doesn’t make changes that are inconsistent with the wishes of the deceased spouse.

In almost every trust we draft, we build in protection for the beneficiaries so that if they are go through any type of legal trouble at the time of the parent’s death, such as bankruptcy, litigation, or divorce, the inheritance can be kept separate from the beneficiaries’ personal assets and protected from those legal troubles.

Having a valid set of power of attorney documents minimizes the need for guardianship.  Guardianship is typically only needed when a person becomes unable to make his or her own decisions regarding business or healthcare matters and no one was designated to manage those affairs in advance through a power of attorney.

Unfortunately no.  The person designated as power of attorney has authority to obtain and approve medical treatment for the person who granted the power, but the power of attorney cannot override the wishes of the person who granted the power.  This is an instance in which a guardianship is necessary even when a person planned ahead by executing valid power of attorney documents.

Yes, the Aid and Attendance benefit offered through the VA can help veterans and widows of veterans in need of regular care, whether that care is given at home or in a facility, if they meet all financial and other criteria for the benefit.

What most people don’t know about the Aid and Attendance benefit is that there is a slightly more complex way to determine an applicant’s income.  To determine income for VA purposes, you deduct from the applicant’s gross income all recurring medical expenses such as health insurance premiums, long term care insurance premiums, in-home caregiver costs, or fees for assisted living facilities and nursing homes.  Under this analysis, most people find that their income for VA purposes is in the negative, and they do qualify for the benefit.

When determining asset levels, cash surrender values on life insurance policies and the county assessed values of personal property (such as boats, campers, and recreational vehicles) are often overlooked.  If your mother has a life insurance policy that has cash value, DHS will consider that as an asset available to her, which counts against the $2,000 asset level she is allowed to keep.  If your mother has more than one vehicle on her personal property tax assessment, the first vehicle is an excluded asset for Medicaid purposes but the value of the second (and third) count against that $2,000 asset limit as well.

Under Arkansas Medicaid law the at-home spouse is offered some protection against spousal impoverishment.  If your income does not meet the minimum level set forth by the state you are permitted to keep whatever portion of your spouse’s income that would allow you to reach that minimum level.  This amount is currently around $2,000 per month, so you will be allowed to keep almost $1,000 of your husband’s income, in addition to your own, to meet household expenses.

It is true that there is an income cap for Arkansas Medicaid, but your spouse can still qualify for Medicaid with the use of something called an Irrevocable Income Trust, more commonly referred to as a Miller Trust.  A Miller Trust is essentially a special type of checking account used to pay the nursing home.  Setting up and properly using a Miller Trust allows a person whose income is over the limit to still qualify for Medicaid.