Elder Law

Our elder law attorneys are experienced in the full scope of Utah law and are sensitive to the challenges and issues families face with their loved ones at different life stages, such as decisions about long-term care, wills, estate planning and guardianships. Regardless of the situation, our elder law attorneys understand the delicate balance of respect for each party while accomplishing the immediate needs at hand. By proactively addressing elder law issues and obtaining appropriate legal documents, we help reduce or even eliminate the time, expense and stress that can ensue between family members down the road.

Our elder law legal services include:

  • Preparation of estate documents such as a will, trust, Power of Attorney and Advance Health Care Directive

  • Guardianships and conservatorships

  • Will contests, probate and trust litigation

  • Medicaid consultations
  • Special needs planning
  • Long-term and Medicaid planning

Questions & Answers

What is a trust?

A trust is a creation governed by law into which you may transfer assets. Assets, such as property, like your home, or bank and investment accounts transferred into a trust are owned by the trust. The trust states who will be the administrator, or more properly, the trustee, and how assets and income of the trust are to be administered. There is usually a provision in the trust to determine how the assets will be distributed upon your death, the death of your spouse or other individuals identified in the trust. Talk to a qualified elder law attorney about whether a trust would be beneficial.

Are there different types of trusts?

The most common type of trust is a revocable living trust created by a married couple for their benefit during their lifetime. Upon their death, the trust becomes a benefit for their children.

A special needs trust is fairly common to protect assets for a person who is disabled and may be eligible for governmental assistance. The special needs trust holds assets that can provide additional benefits to a disabled person not normally provided through governmental programs.

An irrevocable trust is often created when taxes are a concern, but is a tool not used by most because once created the assets move from the grantor’s control to the trustee’s control and it cannot be revoked, altered, amended or terminated. A Kirton McConkie elder law attorney can discuss various options to meet your immediate and long-term needs.

What is a will?

A will is a document that becomes effective only upon the death of the person who executes or signs the will.

The primary purpose is to set forth how the decedent's estate is to be distributed and identifies the individuals or institutions that will receive part or all of the decedent's estate. The will should also nominate someone to serve as the personal representative in charge of the decedent's estate.

Everyone needs a will. Even those with a trust need a will. Unlike a trust, a will is not operative or effective until you die. A will can be simple or complex, however, it is no good if it is not written well or if it does not conform to the statutory requirements for a will.

It is generally best to consult an experienced elder law attorney or estate planning attorney to draft your will to make sure your wishes are properly carried out upon your death.

What is the difference between a trust and a will?

The primary difference between a living trust and a will is that the will is only effective upon the death of the person who has written the will while the trust is an active instrument governing the administration of the assets contained in the trust, even during one's lifetime.

A will must be probated, that is, filed with a District Court before the assets are distributed. A trust does not have to be presented to a court and can be administered freely without any court involvement. If the value of decedent's estate is less than $100,000, however, the will does not have to be probated and the personal representative or heir can obtain the assets of the decedent's estate through a Small Estate Affidavit. Our Utah elder law attorneys can outline the differences between trusts and wills for elder law clients.

Do I need a trust or a will?

Everyone should have a will, but not everyone needs a trust. Even if you have a trust, you should have a will in order to transfer assets from your personal estate upon death to your trust. This happens when an asset is purposely or unintentionally left out of the trust and is discovered after the death of a grantor of the trust. When this happens, the will needs to be probated so the asset can be transferred to the trust. When a person has a trust, the associated will is often referred to as a "pour over will" since the will is intended to pour any assets outside of the trust into the trust. Kirton McConkie's Utah elder law lawyers have successfully assisted clients in determining their needs for a trust or a will.

What is a living will?

An end of life declaration is often referred to as a "living will," but is actually quite different than a traditional will. A living gives specific directions regarding how you want to be treated when you can no longer communicate your healthcare wishes to your medical and care providers. For example, the living will can state that you are not be kept artificially alive if death would closely follow the removal of the artificial means, like a respirator or similar device. The living will is incorporated within the Utah Advance Health Care Directive, which can be found at the top of this page.

Do I need an Advance Health Care Directive?

Living Wills and Special Power of Attorney documents completed before 2008 are valid, but these old forms may not be as effective in having the patient’s wishes honored. Our elder law lawyers recommend having a Utah Advance Health Care Directive.

How do I know if my loved one is incapacitated and/or needs protection?

Capacity is diagnosed by medical professionals, but ultimately is a legal determination based on the medical evidence. Many cases are clear and common sense comes into play to determine whether a person has sufficient cognitive capacity to make reasonable decisions about his or her care. Our Utah elder law attorneys provide assistance in explaining the parameters of guardianships and conservatorships.

Does a guardianship or a conservatorship need to be all or nothing?

The law prefers limited guardianship to the extent the individual can make reasoned decisions about personal care and safety. 

Is an attorney necessary to obtain guardianship?

You do not need to retain a lawyer who specializes in elder law; however, it is often difficult to wend your way through the Rules and Utah Code to become a legal guardian. This is particularly true if there is contention among family members. Kirton McConkie's elder law attorneys can explain the appropriate legal documents and process required for becoming a legal guardian.

What is elder abuse?

Physical or mental abuse often becomes obvious. But, there are other behaviors also considered abusive such as keeping an elderly person isolated from friends and family members. If you suspect elder abuse, it is best to consult with Adult Protective Services or with one of our elder law attorneys.

How do I protect my loved ones from elder abuse?

You can first try to assert your own efforts to change the environment where your loved ones are residing, if possible. If not, you have a duty to contact and report the matter to Adult Protective Services (APS). Contact APS by phone at (800) 371-7897 or through the APS website (http://daas.utah.gov/adult-protective-services/). Our elder law attorneys take elder abuse very seriously and can explain your options for resolving an abusive situation.

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