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Elder Law FAQ

The term Elder Law encompasses several areas of law, typically including estate planning, Medicaid and long-term care planning, guardianships, advanced directives, and probate administration. Depending on the attorney and law firm, an elder law practice may also include nursing home abuse or neglect cases, veterans benefits and Social Security Disability appeals, and assisting families with disabled children.  

Estate Planning & Probate FAQ

Yes.  Arkansas law allows for handwritten Wills.  However, for it to be valid, you must hand write the entire Will and sign it.  No part of the Will can be typewritten or written on a computer word processing program.  The Will must be handwritten by you and not someone else (even if at your direction). If the Will is later contested, three disinterested persons must be able to verify your handwriting and signature on the Will.

If your house is jointly held by you and your spouse, then when you die your interest in the property is automatically transferred to your surviving spouse.  Nothing need be filed in the court or with the real estate office.

If you are the sole owner of your house and you have recorded a beneficiary deed (click here to learn about beneficiary deeds) then the house will automatically pass to the person(s) listed on the beneficiary deed.

If your house has been placed in a trust (click here to learn about trusts), then when you die the beneficiaries listed in the trust will become the owners of your home.  If the home remains in the trust after you die, then nothing need be filed with the court or real estate office by the beneficiaries. If the home is to be transferred out of the trust to the beneficiaries in their individual names, then a deed will have to be recorded in the real-estate office conveying the property.    

If you are the sole owner of your house when you die and you do not have a trust or a beneficiary deed, title to the property will automatically transfer to your heirs (or the person(s) listed in your Will).  However, in order to obtain a deed to the property that can be recorded in the real estate office showing the new owners, the house will generally have to go through probate administration (click here to learn about probate administration).  

A beneficiary deed is a deed that allows a landowner to pass title to his or her property to someone else when he or she dies.  The deed is created and filed with the real estate records office during the landowner’s lifetime, but does not take effect until his or her death.  The deed has no effect until the landowner dies and can be revoked by the landowner at any time. Beneficiary deeds allow land to be transferred at someone’s death without the necessity of going through probate administration.     

A beneficiary is someone named in a document, such as a Will or Trust or Pay on Death Designation, to receive property from someone else. 

Guardianship FAQ

A guardianship is a court order giving a person or persons legal authority over someone who is incompetent or incapacitated.  A guardianship can be thought of much like custody of a child. The guardian has the legal authority to make decisions for the ward (person who the guardianship is over).  The guardian also has the legal obligation to make sure the ward’s needs are being met. Guardianship can be ordered for a disabled adult who cannot take care of him or herself or for children whose parents are unable or unwilling to care for them.  

It depends.  First off, if you are seeking custody of a child and you are not a parent, you are likely seeking to become the child’s guardian.  You have to file papers with the court and a judge has to sign an order for you to become guardian of a child (if you are not the child’s parent).  If you are a grandparent, you can obtain guardianship (or custody) of your grandchild if the parents agree (consent) to the guardianship or if you prove to the court that the parents are not fit to care for the child. 

Advance Directives FAQ

A living will, sometimes known as an advance directive, is a legal document that instructs your loved ones and medical providers on the type of medical care that you wish to receive should you no longer be able to convey those desires to them yourself.  A living will can set out any number of medical instructions. The most common is whether you want to remain on life support should you become incapacitated. A living will is also often used to express a desire about whether you want to receive food and water through a tube, if you are no longer able to feed yourself. A living will is not the same thing as a last will and testament.  A living will does not instruct on how you want your property divided upon your death.

A healthcare proxy, also known as a healthcare power of attorney, is a legal document that gives someone else, usually a loved one or close friend, authority to make medical decisions for you if you are no longer able to make those decisions for yourself.

A power of attorney is a legal document that gives someone else (known as the agent or attorney-in-fact) the authority to make decisions for you.  The power of attorney can be broad, giving someone broad authorization to make decisions about your finances and medical treatment, or can be narrowly tailored to a specific transaction (such as authority to conduct a single real-estate sale).  The power of attorney can also take effect immediately upon its creation or at sometime in the future (such as when you become incapacitated). A power of attorney, regardless of the type, ends upon the death of the person granting the powers (known as the principal or grantor).      

Landlord-Tenant Law FAQ

No.  Arkansas does not allow you to lock out your tenant for any reason or perform other methods of “self-help” eviction (such as turning off utilities or removing doors or windows).  If your tenant is behind in rent, you can sue to have them evicted. In some counties you can also press criminal charges with your local prosecutor or city attorney.

Yes.  In Arkansas, if a landlord owns six or more properties, then the landlord has sixty days from the time a tenant moves to forward him or her the security deposit.  The tenant has to provide the landlord with a good address where the deposit can be mailed. The landlord can also deduct out of the deposit any charges for such things as damages to the rental unit or unpaid rent.  If the landlord deducts charges from the security deposit, then he or she will have to provide the tenant with an itemized list of those charges (this also must be mailed within sixty days from when the tenant moves).  A landlord who fails to follow the law on security deposits can be successfully sued by the tenant for double damages.

Family Law FAQ

The court clerk charges a filing fee of between $165.00 and $185.00 to file for divorce in Arkansas.  If your spouse will not agree to the divorce and sign a waiver of service, then you will also have to pay to have him or her served with the divorce papers.  The cost of service can range from between $11.00 (for service by mail) to $75.00 (for service by a deputy sheriff or licensed process server). If you are not familiar with the rules for getting a divorce in Arkansas, you will also likely need to hire an lawyer.  Lawyer’s fees will vary depending on whether the divorce is contested and how complicated the issues (such as property and custody) are. A non-contested divorce with no complex issues can usually be handled by a lawyer for less than $1,000.00.

The short answer is “yes.”  Parents generally have a legal and moral obligation to support their children.  Further, if you have been ordered by a court to pay child support, you failure to do so could result in you being found in contempt of court.  You could be fined, you could lose your driver’s license or a professional license. You could even be jailed.

Child support and visitation are separate issues.  Even if your ex is refusing to allow you to see your children, that does not mean you can withhold child support.  If there is a court order in place allowing you to visit your children and your ex spouse or boyfriend or girlfriend isn’t following it, then your ex could be found in contempt of court.  If there is not a visitation order in place and you and your ex cannot agree on visitation, then you will have to go to court and ask a judge to set visitation.

It depends.  First off, if you are seeking custody of a child and you are not a parent, you are likely seeking to become the child’s guardian.  You have to file papers with the court and a judge has to sign an order for you to become guardian of a child (if you are not the child’s parent).  If you are a grandparent, you can obtain guardianship (or custody) of your grandchild if the parents agree (consent) to the guardianship or if you prove to the court that the parents are not fit to care for the child. 

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Special Needs Trusts FAQ

A Special Needs Trust, also known as a Supplemental Needs Trust or SNT for short, is a type of trust set up for a disabled person to help pay for the disabled person’s needs or expenses not covered by government benefits such as Supplemental Security Income (SSI) or Medicaid. 

Yes. There are third-party Special Needs Trusts and first-party or self-settled Special Needs Trusts. A third-party Special Needs Trust is funded with assets owned by someone other than the disabled person (such as a parent of the disabled person). A first-party or self-settled Special Needs Trust is funded with assets owned by the disabled person (usually coming from a personal injury settlement or award or an inheritance).

A third-party Special Needs Trust is usually funded with gifts, inheritances or life-insurance proceeds from the disabled person’s parents or other relatives.  A first-person or self-settled Special Needs Trust is usually funded with personal injury settlements or awards received by the disabled person, but can also be funded by life insurance proceeds or inheritances that went directly to and are now owned by the disabled person.    

A Special Needs Trust usually terminates (ends) when the disabled person who benefited from the trust (the beneficiary) dies.  The funds remaining in the trust are then distributed according to the terms set out in the trust. Funds left over in a third-party funded Special Needs Trust are usually distributed to surviving family members of the deceased disabled person or to a charity.  Funds left over in a first-party (also known as a self-settled) Special Needs Trust must go to the state to reimburse (pay back) the costs of Medicaid payments made for the benefit of the disabled person.

Assets in a special needs trust are used to enhance the disabled child’s quality of life.  They are used to supplement not supplant government benefits.  In order to avoid impacting the disabled child’s Medicaid or SSI benefits, the special needs trust should not be used for food or shelter.  Funds from the trust can be used for other benefits for the special needs child such as vacations, cable TV, home furnishings, video games, etc.   

Real-Estate (Land) Law FAQ

Rent to own land contracts, also known as contracts for deed, are legal in Arkansas.  A rent to own agreement is typically made between the property owner and the buyer who lives on the property.  It typically requires a set number of payments over a period of years.  It can include interest.  The agreement usually requires the seller landowner to transfer title to the property to the buyer after the last payment is made.  You should speak to a lawyer before signing a rent to own agreement.  There many pitfalls for the unwary buyer that are associated with this type of agreement. 

A contractor’s lien (aka materialmen’s lien) is a lien that a contractor places on property that they provided work on that they were not fully paid for.  A lien is a document that is filed in the real estate records office in the county where the property is at.  It lets the world know that the owner owes money and that, until that debt is paid off, title to the property is effected (under a cloud).  If proper notice is given, the lien can be filed without the contractor first filing a lawsuit.  The property owner can file a lawsuit to have the lien removed (if they dispute the debt) or can pay off the debt to the contractor to have the lien removed.    

Medicaid Long-Term Care Planning FAQ

When applying with the state for Medicaid Long-Term Care benefits to pay for nursing home care, the Department of Human Services will look back five years from the date of application to see if the person needing the benefits has transferred property.  If the property was transferred for less than fair market value, then the person seeking benefits may be disqualified for a period of time.  

Nursing home care is expensive.  In Arkansas it can cost over $5,000 per month to maintain a loved one in a nursing home.  Most families cannot afford this expense.  There is special insurance available to pay for nursing home care, but if the person needing the care did not have it or if they cannot afford to pay for the nursing home, then the other option is state Medicaid.  Medicaid Long Term Care benefits are available to pay for nursing home care for those who qualify.  Whether someone qualifies for Medicaid Long Term Care depends on their income and assets (the property that they own).  

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