Ad Litem -
Latin meaning "for the purposes of the legal action only." Most often the term applies to a parent who files a lawsuit for his or her minor child as "guardian ad litem" (guardian just for the purposes of the lawsuit) or for a person who is incompetent. Either at the time the lawsuit is filed or shortly thereafter, the parent petitions the court to allow him/her to be guardian ad litem, which is brought ex parte (without a noticed hearing) and is almost always granted. A person acting ad litem has the responsibility to pursue the lawsuit and to account for the money recovered for damages. If a child in such a lawsuit reaches majority (18 in most states) while the suit is pending, the ad litem guardianship terminates and the "new" adult can run his/her own lawsuit. Some courts require an order terminating the guardianship ad litem upon proof of coming of age.
Advance Directive -
A document such as a living will or durable power of attorney in which a person expresses his or her wishes regarding medical treatment in the event of incapacitation.
Advisory Opinion -
An advisory opinion is an opinion issued by a court (or a commission) that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. For example, the Florida Supreme Court has ruled in an advisory opinion dated January 15, 2015, that it constitutes the unlicensed practice of law for non-attorney Medicaid planners to engage in and render legal advice with respect to Medicaid planning. You can read the advisory opinion here: https://www.floridasupremecourt.org/content/download/323022/opinion/sc14-211.pdf
Aid and Attendance -
The Veteran’s Administration’s (VA) Pension benefit, offered to low-income veterans (or their spouses) who are in nursing homes or who need help at home with everyday tasks like dressing or bathing. For more information about Aid and Attendance and VA Benefits' Planning, please visit https://elderlawassociates.com/practice-areas/veteran-affairs/.
Assisted Living -
Assisted living bridges the gap between independent living and nursing homes. A type of living arrangement in which personal care services such as meals, housekeeping, transportation, and assistance with activities of daily living are available as needed to people who still live on their own in a residential facility. In most cases, the "assisted living" residents pay a regular monthly rent. Then, they typically pay additional fees for the services they get. Residents in assisted living centers are not able to live by themselves but do not require constant care either.
Assisted Living Facility (ALF) -
Provides supervision or assistance with activities of daily living, coordination of services by outside health providers, and providing activities, in an effort to ensure the health, safety and well-being of residents. ALFs vary in size from very small to large facilities that can house hundreds of residents.
Attorney at Law vs. Attorney-in-Fact -
An attorney at law is a lawyer who has been licensed by the state in which he or she practices. An attorney-in-fact is an agent, for example, under a Durable Power of Attorney, who is authorized to act on behalf of another person but isn't necessarily authorized to practice law.
Bar Association -
A bar association is a professional association of lawyers. Some state bar associations are mandatory organizations that regulate the admission to practice law in that jurisdiction, while other states have voluntary bar associations that are professional organizations dedicated to serving their members. In many jurisdictions, it is both mandatory and a professional organization.
A broad definition for any person or entity (like a charity) who is to receive assets or profits from an estate, a trust, an insurance policy or any instrument in which there is distribution. There is also an "incidental beneficiary" or a "third-party beneficiary" who gets a benefit although not specifically named, such as someone who will make a profit if a piece of property is distributed to another.
A bequest is property given through a will to a beneficiary.
A person who helps care for someone who is ill, disabled, or aged. Some caregivers are relatives or friends who volunteer their help. Some people provide caregiving services for a cost.
Caregiver Contract -
A cargiver contract is typically drawn up between a family member or another person who agrees to provide caregiver services for a disabled or aging person and the person receiving care.
Case Manager -
Case managers assist people (seniors, people with disabilities, people in long-term care facilities, etc.) by helping them find the healthcare or other services needed, by working closely with attorneys, financial planners and other service providers, and by keeping tabs on their clients' progress.
A person appointed by a court to protect the interests of a minor or incapacitated person in a particular matter; State law and local court rules govern the appointment of conservators (also known as guardians).
Conservatorship is similar to guardianship, in that it is a legal relationship between a protected person and one or more individuals appointed by the court to make decisions on behalf of the protected person. However, while a guardianship may encompass all personal affairs (support, care, health, habilitation, therapeutic treatment, and if not inconsistent with an order of commitment or custody, the residence) of a protected person, a conservatorship is limited to the management of the property and financial affairs of a protected person. As with guardianship, a conservatorship may be full, limited, temporary, or joint.
Cognitive Impairment -
When a person has trouble remembering, learning new things, concentrating, or making decisions that affect his or her everyday life, that person may have cognitive impairement, which can range from mild to severe.
A person who has died.
Diminished Capacity -
Essentially a psychological term that describes the mental state of an individual who, due to emotional distress, dementia or other factors, he/she could not fully comprehend the nature of the legal proceeding at hand.
DNR Order -
DNR stands for "Do Not Resuscitate" in medical parlance. It is also known as "no code" or "allow natural death." A DNR is a legal order, written or oral, indicating that a person does not want to receive cardiopulmonary resuscitation if that person's heart stops beating.
Durable Power of Attorney -
A Durable Power of Attorney contains a provision that allows the powers granted to the Agent to continue even after the principal becomes disabled or mentally incapacitated. A Durable Power of Attorney document must be notarized and witnessed.
Elder Law -
Elder law is a specialized area of legal practice, covering estate planning, wills, trusts, arrangements for care, social security and retirement benefits, protection against elder abuse (physical, emotional and financial), and other issues involving older people and people with disabilities and special needs.
Elder Law Attorney -
An attorney who specializes in providing legal services for the elderly and people with disabilities and special needs, especially in the areas of estate planning and Medicaid planning. Elder Law attorneys handle general estate planning issues, wills, trusts, arrangements for long-term care and other issues, and counsel clients about planning for the management of assets and health care with decision-making documents to prepare for the possibility of becoming incapacitated.
All that one owns in real estate and other assets; Commonly, all the possessions of one who has died and are subject to probate (administration supervised by the court) and distribution to heirs and beneficiaries; All the possessions which a guardian manages for a ward (young person requiring protection and administration of affairs), or assets a conservator manages for a conservatee (a person whose physical or mental lack of competence requires administration of his/her affairs).
Also known as Personal Representative in Florida; The person (also a bank or trust company) appointed to administer the estate of a person who has died leaving a will which nominates that person. Unless there is a valid objection, the judge will appoint the person named in the will to be executor, or in Florida, the person is called a Personal Representative. It is important to note that persons nominated as executor or personal representative in a will MUST be formally approved by the Probate Court before the named individual may begin taking action on behalf of the estate. The executor must ensure that the person's desires expressed in the will are carried out. Practical responsibilities include gathering up and protecting the assets of the estate, obtaining information in regard to all beneficiaries named in the will and any other potential heirs, collecting and arranging for payment of debts of the estate, approving or disapproving creditor's claims, making sure estate taxes are calculated, forms filed and tax payments made, and in all ways assisting the attorney for the estate (which the executor can select).
Ex parte -
Ex parte is a Latin legal term meaning "from out of the party" or "on behalf of the party" referring to having contact with a judge or opposing party without the the other party's lawyer being present. Generally, this is considered unethical or improper, but it can also mean "without a noticed hearing." In this sense, an ex parte order can be made by a judge for immediate relief or on a temporary basis, or when scheduling a hearing and providing notice to the other party is not possible.
In the context of elder law, exploitation is an act of abuse, such as when a caretaker or another person takes unfair advantage of an elderly person or person with special needs, or that person's financial resources, without that person's informed consent, or with consent obtained by misrepresentation, coercion, or threats. Exploitation results in the financial gain or other benefits for the perpetrator, and/or the financial or other personal loss to the older adult or person with special needs.
Someone who owes a duty of loyalty to safeguard the interests of another person or entity, such as a trustee of a testamentary trust, a guardian of the estate of a minor, a guardian, committee or conservator of the estate of an incapacitated person, an executor of a will, an administrator of the estate of a decedent or an advisor or consultant exercising control over a testamentary or express trust; An executor, personal representative, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public or private, public officer or any other person acting in a fiduciary capacity for any person, trust or estate; May be required to hold funds and assets in a special fiduciary account and file periodic accounts and/or inventories with the court; Has a duty not to benefit at the expense of the one they are responsible for; Must avoid "self-dealing" or "conflicts of interests" in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him or her.
Filing Fee -
A fee charged by a government organization to accept a document for processing (e.g., the fee required for the filing of a pleading in a civil proceeding, such as opening pleadings in a probate matter or a petition to determine incapacity and seeking the appointment of a guardian in a guardian proceeding).
A person to whom an estate or interest in real property passes, typically by way of a deed; The person who passes the property is called a grantor. Laws affecting the rights and obligations of grantees are primarily governed by state laws, which vary by state.
A person from or by whom an estate or interest in real property passes, typically by way of a deed. The person to whom the property passes is called a grantee. Laws affecting the rights and obligations of grantors are primarily governed by state laws, which vary by state. In addition, grantor is used to refer to a person who establishes a trust. This person also may be referred to as a settlor, trustmaker or trustor.
A person appointed by a court to protect the interests of a minor or incapacitated person in a particular matter; State law and local court rules govern the appointment of guardians (also known as conservators).
Guardian Ad Litem -
In the course of a legal proceeding involving a minor or an incapacitated adult, a court may appoint a guardian ad litem to serve as an advocate and to protect the person's interests.
Guardianship is a legal relationship that gives one or more individuals or agencies the responsibility of making decisions regarding the personal affairs and managing the property/assets of the protected person.
Health Care Power of Attorney -
A legal document that allows an individual to designate another person to make medical decisions for her/him or when s/he cannot make decisions for herself/himself; Health care decisions include the power to consent, refuse consent or withdraw consent to any type of medical care, treatment, service or procedure; Also referred to as Health Care Proxy, Health Care Surrogate, Medical Power of Attorney and Durable Power of Attorney for Health Care.
Health Care Proxy -
Some states (like New York) use the term "health care proxy" to describe a Health Care Power of Attorney. While state laws on advance directives differ, there is no important difference between the concept of a Health Care Proxy and a Health Care Power of Attorney. Florida uses the term Health Care Surrogate.
Inter vivos -
A Latin term meaning "among the living;" Usually refers to the transfer of property during one's lifetime and by agreement between living persons and not by a gift through a will; A gift made while someone is alive; An inter-vivos trust is also referred to as a living trust. Such a trust commences during the lifetime of the person (trustor or settlor) creating the trust as distinguished from a trust created by a will (testamentary trust), which comes into existence upon the death of the writer of the will.
Not having made a legally valid will prior to death; When used in regard to property, intestate means not effectively disposed of by a legally valid will; A decedent’s estate is the property in the aggregate of a deceased person. If a decedent died intestate, then the decedent’s estate is wholly intestate. If the decedent died testate and the decedent’s will effectively disposes of all the decedent’s property, then the decedent’s estate is wholly testate. If, however, the decedent died testate, but the decedent’s will disposed of less than all of the decedent’s property, then the decedent’s estate comprises both a testate estate, which is distributed in accordance with the decedent’s will, and an intestate estate, which is distributed in accordance with the applicable state’s law of intestate succession.
Joint Tenancy with Right of Survivorship -
Joint Tenancy or ownership is an important tool in asset protection, such as when property is owned jointly with survivorship rights. By leaving property to another, such as when property is owned jointly by husband and wife, the surviving property owner or surviving spouse avoids having to probate the asset and can claim ownership of the deceased owner's interest automatically upon the death of the other property owner.
Living Will -
Also called a directive to physicians or an advance directive; A document that lets people state their wishes for end-of-life medical care, in case they become unable to communicate their decisions. It has no power after death.
Living Trust -
Sometimes called an "inter vivos" or "revocable" trust; A written legal document through which your assets are placed into a trust for your benefit during your lifetime and then transferred to designated beneficiaries at your death by your chosen representative, called a "successor trustee."
Long-Term Care -
A variety of services that help meet both the medical and non-medical needs of people with a chronic illness or disability who cannot care for themselves for long periods.
Look-Back Period (Medicaid) -
Five years from the date of application for Medicaid benefits, and any gifts or transfers made within that five-year period are subject to penalty.
A joint federal and state program that, together with the Children’s Health Insurance Program (CHIP), provides health coverage to over 72.5 million Americans, including children, pregnant women, parents, seniors, and individuals with disabilities. Medicaid is the single largest source of health coverage in the United States.
Medicare is the federal health insurance program for people who are 65 or older, certain younger people with disabilities, and people with End-Stage Renal Disease (permanent kidney failure requiring dialysis or a transplant, sometimes called ESRD). The different parts of Medicare help cover specific services: Medicare Part A (Hospital Insurance) covers inpatient hospital stays, care in a skilled nursing facility, hospice care, and some home health care. Medicare Part B (Medical Insurance) covers certain doctors' services, outpatient care, medical supplies, and preventive services. Medicare Part D covers prescription drugs. These plans are offered by insurance companies and other private companies approved by Medicare. Medicare Advantage Plans may also offer prescription drug coverage that follows the same rules as Medicare Prescription Drug Plans.
Miller Trust -
A special type of trust that adjusts a person's income downward, usually in an attempt for the individual to retain eligibility for certain types of governmental benefit programs. Most often, these trusts are used for the purpose of establishing eligibility for the Medicaid program.
Personal Care Agreement -
A contract typically between a family member who agrees to provide caregiver services for a disabled or aging relative and the person receiving care.
Personal Representative - also known as an Executor -
The person (also a bank or trust company) appointed to administer the estate of a person who has died leaving a will which nominates that person. Unless there is a valid objection, the judge will appoint the person named in the will to be executor, or in Florida, the person is called a personal representative. The personal representative must ensure that the person's desires expressed in the will are carried out. Practical responsibilities include gathering up and protecting the assets of the estate, obtaining information in regard to all beneficiaries named in the will and any other potential heirs, collecting and arranging for payment of debts of the estate, approving or disapproving creditor's claims, making sure estate taxes are calculated, forms filed and tax payments made, and in all ways assisting the attorney for the estate (which the executor can select).
Poverty Guidelines -
The other version of the federal poverty measure. Poverty guidelines are issued each year in the Federal Register by the Department of Health and Human Services (HHS). The guidelines are a simplification of the poverty thresholds for use for administrative purposes — for instance, determining financial eligibility for certain federal programs. The poverty guidelines are sometimes loosely referred to as the “federal poverty level” (FPL), but that phrase is ambiguous and should be avoided, especially in situations (e.g., legislative or administrative) where precision is important. Click here for the key differences between poverty thresholds and poverty guidelines.
Poverty Threshold -
The original version of the federal poverty measure. They are updated each year by the Census Bureau. The thresholds are used mainly for statistical purposes – for instance, preparing estimates of the number of Americans in poverty each year. (In other words, all official poverty population figures are calculated using the poverty thresholds, not the guidelines.) Historical poverty thresholds since 1973 (and for selected earlier years) and weighted average poverty thresholds since 1959 are available on the Census Bureau’s website.
The process of proving a will is valid and thereafter administering the estate of a dead person according to the terms of the will; A general term for the entire process of administration of estates of dead persons, including those without wills, with court supervision; to prove a will in court and proceed with administration of a deceased's estate under court supervision; Reference to the appropriate court for handling estate matters, as in "probate court."
A person who settles property on trust law for the benefit of beneficiaries; A settlor is also referred to as a trustor, grantor or donor. Where the trust is a testamentary trust, the settlor is usually referred to as the testator.
Special Needs Trusts -
Also known in some jurisdictions as a Supplemental Needs Trust; A specialized trust that allows the disabled beneficiary to enjoy the use of property that is held in trust for his or her benefit, while at the same time allowing the beneficiary to receive essential needs-based government benefits; A specific type of irrevocable trust that exists under Common Law.
Supplemental Needs Trusts -
A type of special needs trust; A trust designed to provide benefits to, and protect the assets of, individuals with physical, psychiatric, or intellectual disabilities, and still allow such persons to be qualified for and receive governmental health care benefits, especially long-term nursing care benefits, under the Medicaid welfare program; Often used to receive an inheritance or personal injury litigation proceeds on behalf of an individual with a disability, in order to allow the person to qualify for Medicaid benefits despite their receipt of the settlement.
Testamentory Trust -
A trust created by a will that arises after the death of the settlor.
A person who has written and executed a last will and testament that is in effect at the time of his/her death; Any person who makes a will.
A trust is a three-party fiduciary relationship in which the first party, the trustor or settlor, transfers a property upon the second party for the benefit of the third party, the beneficiary.
A person or member of a board given control or powers of administration of property in trust with a legal obligation to administer it solely for the purposes specified; The holder of property for the benefit of a beneficiary.
A person who establishes a trust. This person also may be referred to as a grantor, settlor or trustor.
A person who establishes a trust. This person also may be referred to as a grantor, settlor or trustmaker.