Elder Law Services for Denver’s Seniors – Advocacy Is Ageless.
We provide comprehensive Elder Law planning by reviewing assets, income and transfers in order to determine the elder’s needs and identify any other legal needs that should be addressed in the plan. Initially these plans are done with a focus on long term care planning, asset protection and Medicaid. Medicaid is a government program that is available to pay for long term care for individuals who are medically and financially eligible. We look at ways to create a safety net of overlapping resources so the individual can maximize their sense of security and independence.
We specialize in the following areas of Elder Law:
Incapacity: “Incapacity” is a formal, legal finding made by a judge in the context of a guardianship proceeding, after a hearing and introduction of clear and convincing evidence. Although the Court’s appointment of a guardian for an individual constitutes a formal finding of incapacity, no such legal finding of incapacity is associated with a court’s appointment of a conservator for an individual. For more information regarding guardianships and conservatorships, please click here.
Although a legally “incapacitated” person lacks the capacity to be able to do things like write a will or enter into contracts, there are varying degrees of capacity short of a legal finding of “incapacity” within which a person may still be able to enter into legally valid, binding or enforceable arrangements. These situations include:
- Mental Capacity to Write a Will: “Testamentary capacity” consists of mentality and memory sufficient to understand intelligently the nature and purpose of a transaction, comprehend generally the nature and extent of the property to be disposed of, remember who are the natural objects of the testator’s bounty, comprehend what the testator wishes to bequeath to his or her heirs or devisees with reference to the way those people behaved and treated the testator, and with regard to those individuals’ capacity and need, and understand the nature and effect of the desired disposition.
- Mental Capacity to Gift: The essential requirements of a valid gift from one living person to another are a clear and unmistakable intention to make a gift, and a complete parting of possession and surrender by the donor of all control and dominion over the same to the donee. Questions of whether an individual lacked sufficient capacity to be able to clearly, unmistakably and knowingly form an intention to make a gift and completely surrender an item can be subject to litigation and are questions of fact determined by the court or, occasionally, by a jury.
- Mental Capacity to Contract: For an individual to have sufficient mental capacity to enter into a contract, the individual must not be under the influence of fraud, coercion or imposition. There is valid authority in Colorado for the notion that “contractual capacity” is legally the same as “testamentary capacity”, referenced above. Competency to contract is determined by a party’s mental state at the time of execution of the agreement. Every person is presumed by the law to be sane and competent for the purpose of entering into a contract. A party can be insane for some purposes, yet still have the capacity to contract. However, a person is incompetent to contract when the subject matter of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction.
- Mental Capacity to Marry: Under Colorado statutory law, a decree of invalidity of a marriage will be issued when the marriage was entered into when a party lacked capacity to consent to the marriage at the time the marriage was solemnized, whether because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances. The district court must also enter a decree of invalidity of a marriage entered into when one party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage, or one or both parties entered into the marriage under duress exercised by the other party or a third party.
Medicaid/Medicare: Dealing with Medicaid and Medicare issues, including working through applications, eligibility, hearings and appeals, can be confusing, time-consuming and frustrating. Our team has the experience and know-how to help you successfully navigate Medicaid and Medicare.
Long Term Care Planning: We can guide you with a forward-thinking approach to Long Term Care. Although the term Long Term Care is often mistakenly thought to exclusively mean long term care insurance coverage, a more accurate and holistic view is that Long Term Care should cover a broad range of strategic planning, including but not limited to long term care insurance, Medicaid, Veterans’ Benefits, and other resources that may be used to pay for Long Term Care needs.