Legal Considerations in Applying for Medicaid

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The Medicaid program is a complex array of rules and regulations, many of which are misunderstood or unknown.  As a consequence, families and individuals sometimes make unknowing decisions that can affect eligibility for Medicaid, causing tremendous expense and stress.

If you are 50 years or older and want to learn more about the Medicaid program, East Carolina University offers a class through the Lifelong Learning Program.  To learn more, visit the ECU Lifelong Learning Program.

For questions about Elder Law or other civil litigation matters, please contact Charlotte-Anne Alexander at 252-321-2020.

Estate and Advance Health Care Planning

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Sometimes, life hands us unexpected challenges, which cause us to consider whether our affairs are in order. Many of us have plenty on our plates, dealing with day-to-day responsibilities and do not relish the idea of tackling the details of future planning, even though we know it is an important part of life. Thoughtful estate and advance care planning offers many advantages, both for the individual and for the loved ones who want guidance about important decision-making once a person needs assistance managing his or her affairs, becomes incapacitated or dies. It is never too early to plan, and the resulting financial protection and peace of mind can be priceless for everyone involved.

So, what documents do we need? Consider at least four basic (4) documents to express your wishes. First, everyone ought to have a Durable Power of Attorney. This document allows you to choose a highly trusted person to serve as your “Attorney-in-Fact,” to handle your financial affairs if you cannot manage or do not wish to manage your own affairs. This document can save loved ones a great deal of stress and money if an individual becomes incapacitated and needs someone to have the legal authority to pay bills, sell property and handle a range of financial matters. The legal authority given to the Attorneys-in-Fact ends upon death.

Second, everyone should consider a Health Care Power of Attorney. This document allows you to choose trusted individuals to make a range of health care decisions if you cannot make or communicate your own wishes for care. In deciding who to name as your Health Care Agent, consider who will do their best to be present and carry out your wishes.

Third, consider a Living Will, sometimes called an “Advance Directive for a Natural Death.” A Living Will allows you to clearly express your wishes for end-of-life care if (1) you have an incurable or irreversible condition that will result in your death within a relatively short period of time; (2) you have become unconscious, and your health care providers have determined that, to a high degree of medical certainty, you will never regain consciousness; and/or (3) you are suffering from advanced dementia or any other condition which results in the substantial loss of cognitive ability, and your health care providers determine that, to a high degree of medical certainty, this loss is not reversible. Many individuals have strong feelings about wanting (or not wanting) life-prolonging medical care toward the end of their life. It is crucial to make your wishes known to your loved ones and to medical professionals. A Living Will is an excellent way to make sure that your personal wishes are followed.

Before either a Health Care Power of Attorney or a Living Will can take effect, a physician must decide if a person lacks capacity to make or communicate his or her own health care decisions. And be sure to discuss your specific health care and end-of-life care wishes with your doctor and those individuals who will serve as your agent(s).

Finally, it is always a good idea to have a Last Will and Testament. In general terms, a Last Will and Testament allows you to decide who gets your property when you die. In this document, you will name someone to serve as “Executor” (or Executrix or Personal Representative), who has the legal authority to settle your estate in keeping with your written wishes. If you do not have a safe, secure location to store your will, you can take the original Last Will and Testament to the local Clerk of Court’s office for safekeeping.
While it is not required that an attorney draft these (and other) essential estate and advance health care planning documents, it is a very good idea to have professional guidance. There is a lot of incorrect legal information floating around and it is wise to get skilled advice to ensure that your documents are customized to meet your needs and wishes, as well as all legal requirements. Well-drafted estate planning documents frequently manage your needs for many years, successfully putting your affairs in good order and giving peace of mind.
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Charlotte-Anne T. Alexander, Attorney at Law, whose practice focuses on elder law and estate planning. Colombo Kitchin Attorneys, 252-321-2020.

Custody During the Holidays

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For parents who share custody of children, the holidays can add an extra layer of stress and conflict to an existing visitation schedule.  Here are some tips to minimize conflict and promote peaceful and enjoyable holidays, for children and parents alike.

  1. If you have a court order or contract (frequently called a “Separation Agreement”) concerning custody and visitation, review all provisions, word for word. The provisions may be very specific and address not only the timing of visitations, but also parental conduct and communication. And, while parents may have a regular visitation schedule during the year, it frequently changes over the holidays, to allow children to spend time with each parent. For instance, in even-numbered years, the children are with Mom on Christmas Eve, and Dad on Christmas Day; in odd-numbered years, it’s the opposite.
  2. Try to work out a schedule with the other parent in advance and be willing to compromise. Anticipating timing needs and issues before the holidays and discussing them calmly with the other parent may prevent last minute stress and conflict. Although not all separated parents have a court order or formal contract, these documents can be very important when unsolvable conflict arises. These orders and agreements help ensure that a child gets to enjoy holiday time with each parent and establish certain rules concerning parental communication and conduct, as well as remedies for serious violations.
  3. As a last resort, a parent can go to court to ask a judge to resolve the issues; however, the Court is unlikely to hear your dispute right away, as most family courts are booked with cases several months in advance. If the disputes with the other parent are likely to continue with other holidays, then a parent may consider consulting an attorney to discuss legal options to prevent future conflicts.

It is understandable that parents want to share holiday events and traditions with their children and create joyful memories. If there are disputes between parents, try hard not to involve your children in the conflict.  Finding ways to keep peace with the other parent during the holiday season could be the best present you give your kids—and yourself.

Estate Planning in the Digital Age

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Like many people, I store a large list of contacts in my phone. And emails. And photos. For better or worse, how many of us even recall more than a few phone numbers or email addresses any longer? Why bother, when all that information is organized in our phones, right? Now consider how accessible that important information is if our phones are password protected, and we become incapacitated or worse, and nobody knows the password.

In years past, we stored our vital personal and financial information in desk drawers, boxes and filing cabinets. Mail was delivered to mailboxes and photos were maintained in albums.  While some of that still is true today, we are trending toward using the Internet to communicate and store more of our information.

Consider the wealth of information we have in our computers, or in multiple computers and tablets. We may also have important information stored in CDs, flash drives and backup tapes. There may be dozens of user names/logins and passwords associated with these digital accounts.

Many of us have gone “paperless.” We pay our bills online, receive financial statements and investment summaries via email and have Paypal accounts.  And while that may simplify our lives and make our homes and offices tidier, it may also make it difficult for Attorneys- in-Fact, Executors, Trustees and other fiduciaries to locate our important financial documents and competently manage our finances.

An essential part of modern estate planning involves understanding that our online presence may outlive our physical presence. Executors aren’t merely sorting through physical items (mail, contents of filing cabinets, safe deposit boxes) to determine the extent of our estates, but rather much of the most valuable information concerning our estates is found online. As we expand our digital reach to encompass a broad range of financial transactions, social activities, creative endeavors and more, the management of digital assets and online accounts following death or incapacity becomes crucial.

The following are some steps to take to manage your Digital Estate:

  1. Create a detailed inventory of all devices on which digital information may be stored, along with all passwords, logins, user names and security codes. Consider computers, cellular phones, tablets, CDs, DVDs, digital cameras, flash drives and other backup devices. For each device, detail what is contained on it, such as accounts–whether business or personal–along with associated logins and passwords. As this information changes over time, be sure to keep the list updated. If you have not yet begun this process, it may be daunting but consider the frustrating alternative if someone has no idea where you store important information, cannot access financial accounts and has no idea of logins or passwords.

Some may opt to maintain an actual notebook or folder containing this information. However, if you are uncomfortable that this vital list could be stolen, misplaced or destroyed, then consider using an online password manager such as LastPass (, 1Password (  or PasswordBox ( There are several online password managment sites and you should research which best meets your needs.

Whether you choose a physical file for your digital information or use an online password management program, be sure that someone you trust (partner/spouse, close friend, family member) knows that you have this information stored and where to locate it.

  1. Consider the best person to retrieve and manage your online information and assets. In making decisions about Executors, Guardians, Trustees, Attorneys-in-Fact and other fiduciaries, especially those who will be tasked with financial management, it may be wise to consider whether the person you designate is computer savvy enough to manage and close online accounts.
  2. Consider your “Digital Assets” such as social media accounts, blogs, websites and photos stored online. These are considered “digital assets” and you need to consider a plan to delete, maintain or memorialize these sites. For instance, if you have a Facebook account, you can set up your account to be permanently deleted when you die and you can also memorialize your account. You should consider leaving specific instructions for your Executor or other fiduciary about what you want done with these accounts following incapacity or death.

A smart estate plan necessarily involves providing detailed access and instructions about your online presence. While it takes time to compile a detailed digital inventory, this thoughtful planning will make an enormous difference for those who must manage your digital estate if you cannot. Planning ahead will provide family members and fiduciaries full access to your accounts and digital property, help minimize estate costs and promote a smooth estate administration, and ensure that all assets are located, so that they can be distributed according to your wishes.