Practice Areas

The Darby Law Group is committed to serving the legal needs of the elderly and their families.

Elder Law

Elder law encompasses many different fields of law. The Darby Law Group practices in the following areas of Elder Law:

  1. Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home.
  2. Medicaid.
  3. Supplemental and long term care health insurance issues.
  4. Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity.
  5. Conservatorships and guardianships.
  6. Estate planning, including planning for the management of one's estate during life and its disposition on death through the use of trusts, wills and other planning documents.
  7. Probate.
  8. Administration and management of trusts and estates.
  9. Long term care placements in nursing homes and life care communities.
  10. Elder abuse and fraud recovery cases.

The Darby Law Group has a knowledge of the elderly that allows its lawyers and staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of the client. They are aware of real life problems, health and otherwise, that tend to develop as persons age. They are tied into a system of social workers, psychologists and other elder care professionals who may be of assistance.

Estate Planning

The goal of estate planning is to provide the client with an orderly plan for the effective accumulation, growth and retention of assets during his or her lifetime to insure the required accumulations to meet lifetime needs, e.g., college tuition and retirement funding, and for the tax-efficient transfer of assets during life by gifts and at the client’s death, in accordance with his or her testamentary objectives. The objectives of estate planning are:

  1. To assist the client in the accumulation and growth of assets to meet lifetime needs;
  2. To enable the client to control the distribution of his or her assets, whether during life or at death, whenever possible;
  3. To minimize potential income, gift, estate and inheritance taxes and administration expenses, within the framework of the client’s objectives;
  4. To minimize losses, if any, from forced liquidation of property;
  5. To maximize protection afforded by trusts or other devices for beneficiaries for those whom the client deems to be in need of such protection or professional guidance; and
  6. To provide protection and flexibility for the client and the client’s estate during the clients’ lifetime, through trusts or powers of attorney, and/or living wills.
Guardianship

Estate planning should include planning for problems that can arise while the individual is still alive, such as problems that result in incapacity or other diminished ability to function. This is particularly critical for elder clients. Powers of attorney, living wills, and designations of health care surrogate and preneed guardian should be addressed when drafting wills or other estate planning documents. There are several mechanisms designed to deal with some or all of the problems of incapacity: court-appointed guardianship and voluntary guardianship; joint bank accounts; representative payeeships; revocable living trusts; powers of attorney; and “advanced directives” (living wills and designations of health care surrogate and preneed guardian). Court-appointed guardianships and voluntary guardianships may be necessary if there is no durable power of attorney or standby trust, and in circumstances in which instruments drafted do not address the particular circumstances involved. The Darby Law Group handles all aspects of all types of guardianships from the determination of incapacity and the appointment of the guardian through the guardianship administration.

Probate

Probate is the legal process of administering the estate of a deceased person by disposing of all claims and distributing the deceased person’s property. The Darby Law Group will handle all matters in the administration of the estate from the appointment of the personal representative through the final distribution of assets and closing the estate. The probate process may include management of the decedent’s property, sales and transfers of estate assets, determination of beneficiaries and their interests, and the determination of homestead and other exempt property.

It is important to identify the probate estate. Depending upon how property is titled, there are three (3) ways property can pass at death: (1) probate property which passes under the will; (2) contract property which passes by the terms of the agreement; and (3) jointly owned property. Both (2) and (3) do not pass as part of the probate estate, but pass according to their own terms. The probate and non-probate estates are described as follows:

  1. Probate Estate. The probate estate includes those assets (a) held in the sole name of the client, (b) held in the client’s name as a tenant in common with others without rights of survivorship, and (c) assets which are payable to the client’s “estate” upon his or her death. The will controls and disposes of only these assets. If there is no will, the laws of intestacy apply.
  2. Contract Estate (non-probate). The contract estate includes life insurance, pension plans, and other assets in which the client has named a beneficiary in the contract. The contract estate also includes property transferred to a revocable trust agreement. These are non-probate assets which pass directly to the beneficiary pursuant to the contract and do not pass by will as part of the probate estate unless the estate is the named beneficiary.
  3. Joint Ownership Estate (non-probate). The joint ownership estate includes property (e.g., stocks, bank accounts, real estate) that is held as tenants by the entirety or joint tenants with a right of survivorship. It passes by operation of law. This property does not pass by will, by a revocable trust, or by intestacy.

The client must be reminded that only the probate estate passes under the will. Without a careful review of how each asset is held, it is impossible to be sure the estate plan will carry out the client’s planning objectives. If all the property passes outside the will, even a carefully drafted will may not accomplish the client’s objectives.