The Law Offices Of Valerie A. Rocco, P.C., provides advice and representation to clients in the following areas of law.
Estate Planning: Estate Planning is the process by which an individual implements a plan to ensure that their assets are distributed to their intended beneficiaries upon their death, at the lowest possible tax costs. The process of estate planning focuses on the individual and their ability to care for themselves, the amount and type of their assets, the age and competency of their intended beneficiaries, as well as other considerations. Although an estate plan commonly includes a Last Will and Testament, financial Power Of Attorney, and Advance (medical) Directive, an individual’s circumstances, may also warrant the preparation of other documents, such as a Revocable Trust, special needs trust, minors trust, Life Estate Deed, tax trusts, or other planning options may be advisable to implement.
Probate and Trust Administration: Upon death, a person’s assets may be distributed in a number of ways. If the decedent owned an asset titled in their own name, which does not state to whom the asset is to be distributed to (e.g. a bank account with no payable or transfer upon death designation), then upon the owner’s death, that asset will become a part of their probate assets, and administered through the Register Of Wills, generally in the county where the decedent resided. Whereas, if a decedent’s asset such as a life insurance policy, had a living beneficiary named, then at the time of the owner’s death, the insurance proceeds would pass to the beneficiary named and would not become a part of the owner’s probate estate. Assets which are retitled into the name of a person’s Revocable Trust, and/or pass to a Revocable Trust pursuant to the terms of a person’s Will, generally would not constitute a part of decedent’s probate estate. The issue of whether a person should pass title to their estate by a Will or Revocable Trust, or by beneficiary designation, varies from individual to individual depending upon their circumstances. Trust administration involves the administration and distribution of assets which are titled in the name of a Trust. The person or persons named as Trustee of the Trust are responsible for maintaining the assets in the Trust and for assuring that the Trust assets are administered and distributed as provided for in the Trust, as well as having other responsibilities.
Disability Planning: In addition to planning for the distribution of your assets in the event of your death, it is equally important to address who will handle your personal and financial affairs in the event that you become incapacitated and unable to handle your affairs. A financial Power Of Attorney is an essential part of a person’s estate plan. With this document, a person may appoint another individual (known as an attorney-in-fact or “Agent”), to handle their financial, legal, or business affairs. There are two types of powers of attorney, specifically a General Power Of Attorney which grants an Agent broad powers, or a Limited Power Of Attorney which restricts an Agent’s authority to specific transactions. Although a Power Of Attorney may provide that it becomes effective upon the principal’s disability, it is preferable that the powers granted become effective when the Power Of Attorney is executed by the principal, to avoid possible challenges to the document’s effectiveness. It is equally important to plan for who will make your personal and health care decisions if you become incapacitated and unable to address these issues yourself. In Maryland, an individual may sign a health care power of attorney wherein they designate an individual or individuals to make health care decisions for them and a Living Will wherein they set forth their wishes regarding the administration of life sustaining treatment in the event they are in a terminal condition, end-stage condition, persistent vegetative state, or coma. The Maryland legislature has approved a statutory “Advance Directive” form which contains both a health care power of Attorney and Living Will, as well as other provisions. In the event a person becomes incompetent and unable to manage their personal and financial affairs, a Petition For Guardianship may have to be filed in Court, and if granted, the Court will appoint someone as Guardian of the disabled person.
Guardianships: When an individual is incapable of making informed decisions regarding their health care or property due to a physical or mental illness, a Guardianship action may have to be filed with the Court. For example, has the disabled person executed a financial Power Of Attorney; or if not, do they have assets that need to be managed? With reference to their health care, have they executed an Advance Directive; or if not, is there someone who qualifies at the disabled persons surrogate under Maryland law, who is empowered to make health care decisions for them. If no alternative is available, and the appointment of a Guardian is the least restrictive alternative, we can represent the Petitioner in preparing and filing a Petition For Guardianship, and in Court, as well as assist in preparing the annual accounting that is required to be filed, once a Guardian is appointed.
Asset Protection Planning: Certain strategies and techniques are available to individuals who want to preserve and protect their assets from future potential creditors. Such planning techniques vary depending upon the value of an individual’s estate and other circumstances, including, the creation of Trusts, titling of assets, tax planning, charitable planning, formation of a corporation or limited liability company for business entities, business succession planning, and other strategies.
Elder Law: An elder law attorney assists by assessing whether an individual is capable of executing documents whereby they appoint individual(s) to handle their health care needs and financial affairs. If an individual is determined to have diminished capacity, then the filing of a Guardianship Petition may be the only alternative available. An elder law attorney may also assist clients in planning for their long term health care needs. That is, where will the client reside in the event that they become disabled and need assistance with their care. Will they reside at home, in an Assisted Living facility, Continuing Care Community, or nursing home? How will they pay for such living accommodations? An elder law attorney can recommend housing alternatives available, and ascertain what sources are available to pay for such arrangements, as well as assist in implementing the arrangements chosen.
Medicaid Planning: Medicaid Planning, is planning to obtain governmental assistance in paying for the costs incurred by individuals who require a nursing home level of care; whether in a nursing home, assisted living facility, or at home. In order to qualify for Medicaid, certain residency, medical, and financial criteria must be met. The eligibility rules are complicated, and subject to change, and differ for single people and married couples. The firm assists with Medicaid Planning, and with the applicable application process.
Special Needs Planning: Special needs planning has been referred to as estate planning for individuals with disabilities. However, planning for an individual who has a disability, is much more than planning for the distribution of their assets. Consideration must also be given to the individual’s abilities, current living, education, work situation, financial status, family dynamics, and to the financial support they are receiving or need. Generally, the primary concern of a family with a disabled child, is to ensure that the provision of financial support to the disabled child will not adversely effect state or federal benefits, Medicaid or Supplemental Security income, which they receive, or may receive in the future. Generally special needs planning involves the creation of Trusts, whether testamentary (in a person’s Will), or a separate Trust Agreement.
Prenuptial and Marital Settlement Agreements: Generally when people think of estate planning they think of Wills, trusts, and other documents, wherein they direct to whom their assets are to be distributed. However, there are other estate planning options available, such as an Antenuptial Agreement, sometimes referred to as a Prenuptial Agreement. Antenuptial Agreement is an agreement between two individuals who plan to marry and wish to preserve their separate property and estates. Such an agreement may provide that the parties waive any statutory right they have as a surviving spouse to take against the Will of the other party, or to claim their statutory share of the other’s estate, as well as provisions regarding each party’s ownership rights in property acquired prior to the marriage and in marital property acquired during the marriage, including salary, retirement benefits, and other assets. Recent Maryland Court decisions highlight the importance of executing a Prenuptial Agreement, far in advance of the wedding date. Post Nuptial Agreements may also be executed, after the parties marry, however, it is preferable that Prenuptial Agreements be signed by the parties prior to marriage.
Review and Updating of Estate Planning Documents: It is recommended that Wills, Trusts, and other estate planning documents be reviewed every three to five years, and earlier in the event of changes in a person’s life circumstances, such as the birth of a child, marriage, divorce, the death or disability of a spouse, child, or other loved one who is provided for in your documents. We can review your estate planning documents and advise you relative to the effectiveness of the documents you have in place, and provide recommendations for necessary revisions or replacement of those documents, to ensure that they address your goals and will be effective.
Review of long term care agreements: After determining that a long term care facility meets the needs of an individual, whether independently or by utilizing the services of a geriatric care manager, the contract for admission to the facility should be carefully reviewed and the financial stability of the facility should be scrutinized. When reviewing the contract, it is important to ascertain the amount of the entry fee and monthly charges, how such fees are calculated, under what circumstances such fees may be increased and/or refunded, what housing, amenities and health care services will be provided, as well as other issues which should be addressed in the agreement.
Last Will and Testaments: A Will is an important estate planning document. In a Will, you can identify the individuals you wish to receive your property upon your death, rather than have your property distributed to possibly unintended individuals pursuant to Maryland’s Intestacy laws. You may also designate the person or persons you wish to serve as your Personal Representative to administer the distribution of your estate. Tax savings trusts and trusts designed to preserve your property for intended beneficiaries may also be included in a Will, and if you have minor children, you may designate who you wish to serve as their guardian, and establish a Trust which states when those assets are to be distributed to them.
Revocable (Living) and Irrevocable Trust Agreements: Revocable (Living) Trusts are especially useful for disability planning, and can be utilized to achieve other estate planning objectives. Irrevocable Trusts are generally utilized to address estate tax and long term care planning issues. Some examples of irrevocable trusts include irrevocable life insurance trusts, special needs trusts, and charitable remainder or charitable lead trusts. It is important that the person creating an irrevocable trust completely understands the consequences of creating such a trust.
Powers Of Attorney: Any competent individual may execute a General Durable Power Of Attorney wherein they appoint a person to handle their financial affairs. There are two types of Powers Of Attorney, specifically a General Power Of Attorney which grants an Agent broad powers or a Limited Power Of Attorney, which restricts an Agent’s authority to specific transactions. In October, 2010, Maryland adopted a statutory form power of attorney, which may be effectively used in certain circumstances.
Advance (medical) Directive: In Maryland, any competent individual may make an Advance (medical) Directive whereby they appoint someone to be their health care agent and/or give instructions relative to the provision, withholding or withdrawal of medical treatment. It is strongly recommended that an Advance Directive be written and executed by an individual, however under certain limited circumstances, a properly witnessed and documented oral directive by a competent individual will be upheld.
Living Wills: A “Living Will” now commonly referred to as an “Advance Directive” in Maryland, is a directive by a competent individual setting forth their directive relative to the provision, withholding, or withdrawal of medical treatment, including life-sustaining treatment. A Living Will should always be accompanied with a power of attorney for health care, wherein an agent is appointed to ensure that the provisions of a Living Will are carried out.