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.

No.

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.

No. The Arizona Long Term Care System (ALTCS) does not take control of, or act as payee for, a recipient’s income. However, if your mother is receiving benefits in a nursing home or residential facility, she will be required to pay a share of the cost of her care or a room-and-board charge each month. This means she would need to write a check to the facility where she is living. If she lives in a nursing home, the “share of cost” amount she would have to pay is determined by ALTCS based on the gross amount of her income minus certain deductions allowable under federal and state Medicaid law. If she lives in a residential facility, the ALTCS program contractor will determine her monthly room-and-board charge.

If she is living in her own home, she will not be required to pay unless an income-only trust is necessary because her income exceeds the ALTCS limit.

ALTCS is federally mandated to try to recover its costs from the estates of individuals age 55 and older who receive long term care services. This “estate recovery” only takes place after the death of the ALTCS recipient. ALTCS will not implement estate recovery if the ALTCS recipient is survived by a spouse, a child under 21, or if there is a disabled child of any age.

In addition, ALTCS may place a lien on the real property of Medicaid members of any age as long as they are determined to be permanently institutionalized, cannot return home, and none of the following people are residing in the home:

• Member’s spouse
• Member’s child who is under the age of 21
• Member’s child of any age who is blind or disabled, or
• Member’s sibling who has an equity interest in the home and who was residing in the recipient’s home for at least one year immediately before the date the recipient was admitted to the medical institution.

ALTCS cannot recover on a lien while the member’s surviving spouse, child under 21 or disabled child is alive; and cannot recover if the member is survived by a sibling living in the home who lived there for at least a year before the member went into the nursing home or a child residing there who provided care to the member that allowed the member to stay at home for the two years prior to the member going into a nursing home.

If you are concerned that your loved one’s property may be at risk, contact the Law Offices of Chester B. McLaughlin to discuss possible ways to preserve the property from estate recovery and liens.

ALTCS is a needs-based program. To qualify, your parents must have income and resources within the applicable eligibility limits. In addition, the parent who needs long term care must meet the medical eligibility requirements. For more information, check out our page on Arizona Long Term Care System or view AHCCCS Current Year Eligibility Requirements and Details.

Transfers of assets or income for less than fair market value that exceed $500 in any given month may be subject to a penalty period of ineligibility for ALTCS services.

• 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 prior to applying, and at any time while receiving ALTCS benefits, 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 county where the applicant resides, as determined by ALTCS (currently $7,204.17 per month in Maricopa, Pima, and Pinal Counties and $6,334.17 per month in the rest of the state). The period of ineligibility starts from either the date of transfer or the date the applicant applies for and is otherwise eligible for benefits, whichever is later.

Applicants who are subject to a transfer penalty period will still receive AHCCCS Medical Assistance, but will not be eligible for long-term care benefits until the penalty period expires.