Frequently Asked Questions Regarding Elder Law
A Will is a legal document that allows you to direct where your personal assets go when you die.
Almost everyone should have a Will. It allows you to decide where your property and other assets will go when you die. You can also select a personal representative you trust to carry out the wishes you set down in your Will. A Will can include:
- Appointment of a guardian to care for minor children
- A trust and appointment of a Trustee to administer your estate for the benefit of minors
- A trust to protect disabled beneficiaries
- Designation of beneficiaries to receive your property and assets
If you die without a Will, the law decides how your property and assets will be distributed. This is called “intestate succession.”
- In Arizona if a married person dies without a will, the deceased spouse’s estate passes to the surviving spouse if the surviving children are all from the current marriage.
- If there are surviving children from a former marriage, the children of the deceased receive a share of the property; none of the deceased’s community property passes to the surviving spouse.
In Arizona, a Will is valid based on the following:
- It’s a written document signed by the person whose Will it is
- Witnessed by at least two people
- The person creating the Will is at least 18 years old
A holographic will is handwritten and signed by the person whose Will it is. This is a valid Will in Arizona.
Power Of Attorneys
A living will provides your family and health care professionals with directions on what kind of care you want or don’t want if you are unable to make health care decisions on your own.
A healthcare power of attorney appoints an agent to make medical decisions for you in the event you are unable to speak for yourself.
No. A power of attorney must be created in advance of your loved one becoming incapacitated. It’s a document drawn up by an attorney and must be signed by your loved one.
It may be possible for you to petition the Probate Court to appoint a Conservator or Guardian for someone who is incapacitated and has property and healthcare decisions that must be managed. Contact us for assistance.
Arizona Long Term Care System (ALTCS)
If your mother is receiving benefits under Arizona’s long term care program and living in a nursing home or residential facility, she will be required to pay a share of costs or room and board each month. This means she may need to write a check to the facility where she is living using some of the money she receives from her social security check.
If she is living in her own home she will not be required to pay.
ALTCS or the state of Arizona will not take your mother’s house in the following situations:
- If your mother has a spouse, child under 21, or a disabled child living in the home.
- If one of her siblings is living in the home and has been for at least a year prior to her going into a nursing home.
- If a child is living in the home who provided care to her which allowed her to remain in her home for two years prior to her going into a nursing home.
If you’re concerned about the estate of a loved one, contact the Law Office of Chester McLaughlin law firm. Working with an experienced elder law attorney can help you make sense of the system and protect your loved ones’ estate.
No. Depending on their situation, they can qualify even if they have income and resources. Check out our page on the Arizona Long Term Care System or view AHCCCS Current Year Eligibility Requirements and Details.
It largely depends on when they give them away, called a “transfer.”
For transfers before July 1, 2006:
- Any transfers or gifts made to someone other than a spouse within 36 months of applying for benefits, must be disclosed.
- Any transfer from a revocable trust or to an irrevocable trust within 60 months of applying for benefits, must be disclosed.
For transfers on or after July 1, 2006:
- Any transfers or gifts made to someone other than a spouse, or from a revocable trust or to an irrevocable trust, or to any trust where the assets are not available to the applicant within 60 months of applying, must be disclosed.
Once these transfers are disclosed, the ALTCS imposes a period of time in which the applicant is not eligible. This period of time is calculated using the total amount of transfers and the average monthly cost of care in the local area, so it’s based on individual circumstances. The period of ineligibility starts from either the date of transfer or the date the applicant applies for benefits, whichever is later.