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Glossary of Terms

ADMINISTRATOR OF ESTATE is a legal term referring to a person appointed by a court to administer the estate of a deceased person who left no will. Where a person dies intestate, i.e., without a will, the court may appoint a person to settle their debts, pay any necessary taxes and funeral expenses, and distribute the remainder according to the procedure set down at law. Such a person is known as the administrator of the estate and will enjoy similar powers to those of an executor under a will.

DURABLE POWER OF ATTORNEY might be the single most important estate planning document that an individual has. If a person without a durable power of attorney becomes incapacitated, that individual’s family or friends must seek the intervention of the court system to appoint a guardian of the individual’s person and estate (sometimes the same person fulfills both roles) who makes personal and financial decisions for the incapacitated person.  Such decisions are subjected to the scrutiny of the courts. A durable power of attorney is an option that preempts the difficulties inherent in guardianship. In a durable power of attorney, a person (the “principal”) appoints an agent, properly called an “attorney-in-fact,” to make personal and financial decisions for the principal, in case the principal becomes incapacitated or is otherwise unable to act in his or her own best interest. The power of attorney is “durable” because its power continues if and when the principal becomes incapacitated.  An attorney-in-fact under a properly drafted durable power of attorney will have the power to “step into the shoes” of the principal to undertake any sort of business the principal could manage himself, such as paying bills and managing financial accounts, and may include broad authority to retitle a principal’s assets in order to qualify the principal for government benefits such as Medicaid.

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 situations involving  older people. As new strides in medical science are allowing people to live longer and longer, elder law has become an increasingly important field of legal specialization.

ESTATE PLANNING, simply speaking, is the process of deciding who will get your property and how you would like it transferred after your death. It also involves designating a guardian for young children and equally important, a representative to make financial  and medical decisions (health care agent) for you if you become incapacitated, using a durable power of attorney and a health care power of attorney. Finally, you can set forth end-of-life decisions in a living will, which will only apply when you are at death’s door.

EXECUTOR is someone who is appointed by the terms of a will to carry out the deceased person’s wishes.  The executor will be responsible for applying to the clerk of court in the appropriate county (in North Carolina) to probate the will, to follow the required steps of the court, and to ensure that the deceased person’s property is distributed according to the terms of the will.

GUARDIANSHIP is the legal proceeding overseen by the Clerk of Court in North Carolina where a person is appointed to exercise some or all of the legal rights of an incapacitated person, properly called a “ward.” The “Guardian of the Person” is appointed over the ward’s person/well-being, and the “Guardian of the Estate” is appointed over the ward’s finances and property – often, but not always, the same person. A properly drafted durable power of attorney usually preempts the need for guardianship, because the incapacitated person has previously (before becoming incapacitated) appointed an agent to make personal and financial decisions for him or her, should incapacity become an issue.

HEALTH CARE POWER OF ATTORNEY is a legal document that allows an individual to designate another person to make medical decisions for him or her when he or she cannot make decisions for himself or herself. In other words, it names someone who stands in your shoes and tells the doctors what to do or what not do for you, if you are ever unable to communicate or are no longer acting in your own best interest. A person need not be terminally ill, elderly, or facing high risk activities to sign a health care power of attorney. Health care decisions include the power to consent, refuse consent or withdraw consent to any type of medical care, treatment, service or procedure. A health care power of attorney is also referred to as health care proxy, medical power of attorney and durable power of attorney for health care.

INTESTATE means to die without leaving a valid will. When a person dies without leaving a will, that person is considered to have died intestate.   All states have enacted statutes to deal with this situation.  These statutes are called intestacy statutes and the intestate decedent’s property is distributed according to your legal heirs as set forth in these statutes.  Accordingly, intestacy statutes create a “surrogate will” for the decedent when the decedent dies with no valid will.

LAST WILL AND TESTAMENT is a document by which a person provides for the transfer of his or her property upon death, names an executor, and allows parents of minor children to name guardians. Every person needs a will, even persons with little property.

LIVING WILL is a document that allows a person to explain in writing which medical treatment he or she does or does not want during a person’s final days. A living will takes effect only when the patient is incapacitated and can no longer express his or her wishes. The living will states which medical treatments may be used and which may not be used, allowing the patient to die with dignity and without the patient’s life being artificially prolonged by various medical procedures. In North Carolina, a living will is generally referred to as an “advanced directive.”

MEDICAID is a hybrid federal and state government program which assists low-income individuals to cover the costs of medical care and nursing care. Because Medicaid is a joint federal and state program, qualification requirements and coverage differ widely from state to state. Because of the exorbitant costs associated with nursing home care, many people with substantial assets will need Medicaid benefits to cover the costs.

MEDICARE is the federal government program that pays for hospital and medical care for adults age 65 and older, and for some younger adults who are disabled. Virtually every adult who reaches age 65 and receives Social Security benefits qualifies for Medicare. Contrary to popular opinion, Medicare pays for virtually none of the costs of long-term-care.

PROBATE is an official court proceeding in which the estate of the decedent is distributed according to a will, if one exists, and according to intestate succession laws if no will exists. It can occasionally be a lengthy process and involves a lot of paperwork, time, and is not free. In addition, the documents filed in a probate proceeding are a matter of public record.

SPECIAL ASSISTANCE is the North Carolina state government program that pays the cost of assisted living for low income seniors. To qualify for Special Assistance, an individual must be under a specified income limit, which is adjusted periodically, and must require the assisted living level of care. Many folks understandably confuse Special Assistance with Medicaid; in North Carolina, it is important to remember that Special Assistance is the program that pays for assisted living, and Medicaid is the program that pays for nursing home care.

SPECIAL NEEDS TRUST is a trust that may be set up to provide for a disabled child’s or adult’s extra and supplemental needs, other than basic food, shelter and health care expenses that may be covered by public assistance benefits that the beneficiary may be entitled to receive under various programs such as Supplemental Security Income (“SSI”) and Medicaid. Special needs trusts might be used to pay for a disabled person’s education, travel expenses, a handicapped van, and other needs that are not provided for by government benefits

TESTATE means to die with a valid will.

REVOCABLE LIVING TRUST is a trust by which a person, typically called the “grantor” or the “trustor,” transfers legal ownership of some or all of the grantor’s property during the grantor’s lifetime. Most often, the grantor and the trustee are the same person. Because legal ownership is transferred during the grantor’s lifetime, any property that the grantor puts into the revocable living trust will not be subject to probate, saving substantial time in probate, which often takes a year or more. In North Carolina, probate costs are lower than in many states, but avoiding probate will still save some money. Another benefit is that the terms of a revocable living trust never become public record, unlike a probated will, so a grantor who wishes to keep things private may choose to do a revocable living trust. Still another benefit is the ability to manage how and when assets are distributed to a surviving spouse, or to children. Revocable living trusts are revocable during the grantor’s lifetime. Consideration of a revocable living trust should be an important component of any estate planning discussion.

TESTAMENTARY TRUST is a trust that is contained in the terms of a person’s will. Some testatmentary trusts might be designed to manage property for younger beneficiaries until they reach a certain age, twenty-five, for example. Other testamentary trusts might facilitate qualifying a surviving spouse for Medicaid, which is an important part of estate planning for the elderly.

TRUST ADMINISTRATION is the process by which an agent, called a trustee, carries out the terms of a trust. A trustee’s duties will include managing assets and distributing funds to beneficiaries as the terms of the trust instruct. A grantor forming a revocable living trust, for example often names himself or herself as the initial trustee, but provides for successor trustees to take over when the grantor dies or becomes incapacitated. Successor trustees might be a surviving spouse, children, or other family members or friends, but could also be an attorney, other trusted adviser, or a financial institution or trust management company.