Elder Law in Virginia

Elder Law in Virginia gives you the legal tools you need to help you care for your aging loved one.

What is Elder Law in Virginia?

Elder law in Virginia is the practice of taking care of the legal needs of the elderly and aging population. The primary goal of elder law in Virginia is to ensure that your loved ones are protected both financially and medically as they grow in age.

As your loved ones grow in age, a number of issues arise.

Financial Issues

First of all, financial issues will arise as your loved ones reach retirement age. These financial issues include the loss of a source of regular income and rising medical costs. Without a source of regular income, it becomes imperative that your loved ones prepare by smartly and efficiently saving for retirement.

Medical Issues

As your loved ones grow in age, a variety of medical issues may arise. These medical issues can include both diminishing physical and mental health. Due to your loved one’s diminishing health, it becomes crucial that your loved ones have access to the daily and medical care they will desperately need.

Mental Health Issues

Finally, there is even the possibility that your loved ones could become mentally incapacitated. This means that they would lose the ability to understand and communicate effectively.

As a result, your loved ones could become more vulnerable to elder abuse and even make poor decisions.

The primary objective of elder law in Virginia is to prepare for these concerns. Through careful preparation, you can alleviate these issues by ensuring that your loved ones are legally and financially prepared for the challenges of retirement.

What can I do to Protect my Aging Loved One?

Through proper planning, you can help protect your aging loved ones from the inevitable challenges of retirement. There are generally three issues that you should plan for as your loved one grows in age.

These issues include preparing for their long term care, managing their estate, and planning for mental incapacity.

Preparing for Retirement and the Long Term Care of Your Loved One

One of the most important ways to protect your aging loved ones is to plan for their long term care. Planning for long term care includes making important decisions on where your loved ones will live and who will take care of them as they grow in age.

As your loved ones reach retirement age, they will require specialized housing and medical care.

Elder law in Virginia allows you to choose the long term care options that are best for you.

However, before you make this decision it is important to know what your options are.

What are my Long Term Care Options?

Elder law in Virginia provides you with several options to provide for the long term care of your loved ones. The first option is to find an assisted living facility for your loved one.

These include places such as nursing homes or retirement communities.

Assisted living facilities provide your loved ones with the medical care and attention they need. However, assisted living facilities are generally expensive. Another option available to your loved ones would be at home care.

Having your loved ones continue to live at home can be a much more affordable long term care option. While this option may be cheaper, it may require you to hire a nurse or other care provider to look after your loved ones.

What are my Payment Options for Long Term Care?

Elder law in Virginia provides several ways to pay for the long term care of your loved ones. The key to choosing a payment option is to determine what payment option your loved one is eligible for. Furthermore, there are generally five ways to pay for the long term care of your loved one:

(1) Out of pocket or Private pay;

(2) Medicare;

(3) Medicaid;

(4) Veterans Affairs Benefits; or

(5) Long Term Care Insurance.

Managing Your Loved One’s Estate

The most effective way to plan for the long term care of your loved ones is to ensure they have engaged in proper estate planning. Moreover, estate planning is the process of arranging and deciding how your loved one’s property will be managed and distributed upon your loved one’s death.

There seems to be a common misconception in the United States that estate planning is only for the wealthy. However, this belief is not true. Anyone can plan their estate no matter what their economic status. An estate is simply all of your loved one’s property.

An estate includes all of your loved one’s tangible property, financial assets, and personal belongings. Financial assets include real estate, money, stocks and bonds, mutual funds, etc. Furthermore, one of the primary goals of estate planning is to reduce uncertainty.

Elder law in Virginia allows your loved one to determine what will happen to their property after their death.

Without estate planning the decisions about your loved one’s health and property distribution are made by someone else. Important medical decisions will be primarily made by treating doctors without estate planning.

Additionally, if your loved ones do not engage in estate planning before their death the state will determine how your loved one’s property will be distributed.

Elder law in Virginia contemplates two primary types of estate planning services: wills and trusts.

Virginia Wills

A will is the most common estate planning tool used in the United States. A will is a binding legal document that allows your loved ones to make important decisions that become effective upon their death. There are numerous things that can be addressed by creating a will.

If your loved ones have any minor children, a will can name a guardian to look after the children upon their death. Additionally, a will can name the person that your loved one wants to serve as an executor of their estate.

The executor of your loved one’s estate is the individual sworn to carry out the wishes expressed in their will. [1] The executor oversees the distribution of your loved one’s property and ensures that to the best of his or her abilities their wishes are performed. [2]

Finally, the primary purpose of a will is to distribute your love one’s property. A will provides your loved one the flexibility to distribute their property as they wish upon the occurrence of their death.

This means that your loved one decides what relatives and friends receive their property.

Without a will, distribution of your loved one’s estate becomes problematic. If your loved one dies without creating a will, the state will make the decision of what relatives will receive property. [3]

Finally, if there are no relatives to inherit the property, your loved one’s property would pass to the state of Virginia. [4]

Therefore, everyone reaching retirement age should create a will.

Virginia Trusts

Trusts are both more complex and expensive than a traditional will. Generally, trusts are a relationship where one or more people manage property on the behalf of others. [5]

The person managing the trust is called the trustee and the person receiving the income from the trust is called the beneficiary.

A trust usually consists of income producing property or assets. [6]

Income producing property includes land, stocks and bonds, and mutual funds.

The person managing the trust has the duty to manage the property in a way that is beneficial to the beneficiary.

This means that the trustee is obligated to ensure that the trust is producing money. The trustee must look out for the best interests of the beneficiary.

One of the main benefits of trusts is that they allow you to avoid the probate process. Then, upon your loved one’s death, the trust would transfer to the beneficiary.

Therefore, if your loved one does has income producing property it may be beneficial to create a trust.

What are the Differences between Wills and Trusts?

There are several differences between wills and trusts. Wills are often cheaper and easier to create then than trusts. Wills are also a part of the public record while trusts are private.

Additionally, a will may require you to undergo probate.

However, transferring property to a trust may allow your loved one to avoid probate all together. The main difference between a will and a trust is that a trust requires lifetime management of your loved one’s estate.

In contrast, the creation of a will does not require lifetime management. In the end, if your loved one has income producing assets then it may be beneficial to create a trust.

Moreover, it may be beneficial to create both a will and a trust. By creating a will and a trust, your loved ones can ensure all of their assets are accounted for.

Planning for Mental Incapacity

As your loved one continues to age, he or she may face the possibility of diminishing mental health. This could eventually lead to mental incapacity where your loved one is unable to effectively make important decisions.

Your loved one could become the victim of financial exploitation or other types of elder abuse if he or she becomes mentally incapacitated. Fortunately, elder law in Virginia provides a remedy to prevent this situation.

Elder law in Virginia provides you the opportunity to name a legal guardian to protect the best interests of your loved one. A legal guardian is a person who would have both the legal authority and obligation to look over the best interests of your loved one. [7]

A legal guardian can be appointed to manage your loved one’s estate. This would involve someone other than your loved one making serious financial decisions with your loved one’s money.

By having a trusted legal guardian manage your loved one’s economic matters, you can protect your loved one from their own diminishing mental health by preventing them from making costly financial mistakes.

Additionally, a legal guardian can be named to ensure that the best medical decisions are made for your loved one. By granting a trusted individual a guardianship over your loved one’s person, you can prevent your loved one from making a costly mistake with regards to their medical care.

How is a Legal Guardian Appointed?

Generally, a legal guardian is named by giving an individual power of attorney over your loved one. Power of attorney is a written document that legally authorizes an individual to act on the behalf of your loved one.

Once the document is signed, power of attorney can become effective immediately, on a certain date, or upon an occurrence of a particular event. [8]

Power of attorney can be very useful if your love one becomes mentally incapacitated.

If your loved one does become mentally incapacitated, power of attorney allows a trusted legal guardian to immediately step in and handle your loved one’s financial, medical, and personal affairs.

Conclusion

There are numerous financial and medical issues that await your aging loved one. Only through proper planning can you ensure the protection of your loved one. Elder law in Virginia allows you to plan for the distribution of your loved one’s estate, the long term care of your loved one, and prepare for the mental incapacity of your loved one.

Hiring an experienced and competent elder law attorney is recommended. Ultimately, having an experienced attorney by your side can best serve to protect your aging loved one.


[1] Va. Code § 64.2-501

[2] Id.

[3] Va. Code § 64.2-200

[4] Id.

[5] Va. Code § 64.2-700

[6] Id.

[7] Va. Code § 64.2-1606

[8] Va. Code § 64.2-1607

 

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