Edited by Joshua Iversen, Certified Financial Planner
As difficult as it may be to imagine your life being any different than it is right now, there is a chance that you may not always be able to make legal decisions on your own. That being said, to draw up all the legal documents that specify everything from the kind of care you are willing to undergo during a medical emergency to the individuals you would like to be your heirs, you must still possess the legal capacity to make those decisions. By taking care of all this legal work earlier on in life, you can save yourself and your family a considerable amount of trouble down the road.
Don’t Put Off Planning Your Estate
Though many of the decisions you will need to make as part of the estate planning process can seem far removed from your present circumstances, each of those decisions will serve as a way to guide your family and protect your wishes during the latter years of your life. Keeping that in mind, it is important that you have all the time you need to carefully consider the choices you will need to make.
It is easy to understand why some people want to put these decisions off until a later date. When engaging in estate planning, you will need to make decisions about things like the level of care you want to receive in the event of a medical emergency, who you would like to hand over legal authority to during your golden years, and how you want your estate to be divided between your heirs. All of these decisions can be incredibly difficult and emotional to make.
The fact is that you will need to make these decisions at some point, and you will be better off getting all of this out of the way sooner rather than later. Once your wishes have been formalized in the various legal documents that make up your estate plan (your living will, durable powers of attorney, beneficiary designations, living trusts, etc.), you will be able to rest assured that the members of your family have what they need to care for you and your estate.
Why It Is Important that You Begin Planning Now
It is important to remember that you can only create and sign legally binding documents so long as you meet the legally defined threshold for mental competence. That means that if your health were to suddenly decline, your family would not be able to do things like access your health or financial records without a court order. Though a loved one will still probably be able to acquire the legal status of conservatorship for you, the actual process can be expensive, time-consuming, and stressful for family members. By taking care of this while you are still in good health, you can ensure that your family will be able to access your information and make decisions on your behalf when it matters most.
Aside from giving legal authority to one of your family members, you will also be able to make important decisions about where you would like to live during the latter years of your life. For instance, if you do not want to be admitted to a nursing home/assisted living facility, you will be able to specify that you want to remain in your home so long as it remains medically feasible for you to do so. In any event, you will be able to express your wishes and arrange a specific list of residential options that you would agree to should your health decline.
The fact that your wishes will have been formalized in several binding legal documents can also serve to help maintain family harmony during the later stages of your life. Since there will be little room for misinterpretation of your wishes, your family can be confident that they are always following your wishes. Though it may not have been a problem for your family anyway, these definitive legal documents often prevent disputes that might have otherwise arisen between family members.
Working with an Attorney
When you are ready to move forward with the estate planning process, it will be in your best interests to consult with an experienced attorney who can help you make sure that you have a comprehensive plan in place for your family. Estate planning can be incredibly complicated, and an attorney will be able to explain every facet of the process before helping you make an informed decision about the various documents that will make up your estate plan. By working with an attorney who has been through this process before, you can improve your chances of getting through with relative ease what can often be a stressful and time-consuming task.
Original article can be found at https://www.senioradvice.com/articles/when-to-begin-the-estate-planning-process
Reviewed by: Dr. Brindusa Vanta, MD
Planning for the future can seem impossible when facing so many unknown variables. From wondering if or when you or a loved one will need caregiving to worrying about affording long-term care, many people find themselves overwhelmed and afraid of the burden these uncertainties may create. By planning for the future, you can protect yourself, your spouse and other loved ones – especially if the plan is written into legally binding documents that guide caregivers and family members when navigating difficult situations and making tough choices about medical care and finances.
According to the Administration for Community Living, there is a 69% chance of seniors over the age of 65 needing long-term care, whether at home, in assisted living or in a nursing home. Seniors transferring into long-term care may qualify for government assistance, and planning can help retain assets for a spouse or loved one. Resources also exist to provide financial assistance for paid family caregiving in many states.
An elder care attorney can be an invaluable resource while planning and will guide you and your loved ones through the laws to protect and preserve a senior’s legal rights. Finding good legal assistance can be difficult, but the information in this guide can help you understand when to speak to an elder care attorney, how they can help and how to choose the right one.
What Is an Elder Law Attorney?
An elder care attorney, often called an elder law attorney, is a lawyer whose area of expertise is in understanding aspects of the law that are unique to the elderly. The American Bar Association uses elder law as a term for attorneys specializing in 12 areas of practice concerning seniors. Some areas elder law attorneys can assist with include:
- Estate planning and drafting wills
- Qualifying for government assistance
- Grandparent rights
- Fraud or elder abuse
15 Ways an Elder Law Attorney Can Help Family Caregivers
Consulting with an elder law attorney can provide seniors with insight into their rights and how best to protect themselves as they age. They can also provide caregivers with comprehensive information and ensure that a senior’s needs are met.
Here are 15 ways that elder care attorneys can help caregivers, seniors and their loved ones.
1. Estate Planning
An estate is the total of the assets and liabilities an individual has at the time of their death. Planning an estate in advance can save family members time and energy while also dictating who inherits what. An elder care attorney can help with planning an estate by:
- Creating an estate plan and will specific to a senior’s situation, family and desires, including dictating the execution process
- Advising seniors and caregivers on handling a complex estate with many assets
- Ensuring an estate plan is legally valid and binding without room for disputes
- Clarifying tax liabilities loved ones may inherit as part of an estate
- Revisiting an estate plan every 3-5 years to revise it as necessary
2. Creating a Living Trust
A living trust grants a designated trustee power to manage specified assets within a trust and distribute them to beneficiaries when the grantor (the person who created the trust) passes away. An elder care attorney can help create a living trust by:
- Creating a legally binding document detailing the distribution of assets
- Designating a trustee and detailing explicit instructions with no room for inaccurate interpretation
- Clarifying the different types of living trusts (revocable and irrevocable) and determining the right one for each situation
3. Transferring and Preserving Assets
If a senior needs long-term care but still has a spouse to consider, an elder law attorney can guide them and a caregiver through the process of legally transferring and preserving assets. Different programs may have different regulations about which assets can be protected, transferred and preserved between married couples, ensuring the one who does not need care doesn’t lose their assets.
4. Structuring Personal Care Agreements and Compensation
Some seniors choose to preemptively pay a lump sum for compensation to a caregiver for future care. This can help reduce the size of a senior’s estate and potentially allow them to qualify for Medicaid or other programs. An elder law attorney knows local laws and can structure the agreement so it doesn’t count as a penalized transfer when applying for assistance. Additionally, care agreements can safeguard caregivers by ensuring that financial incentives are distributed fairly among all adult children and caregivers who provide care and support.
5. Preparing a Durable Power of Attorney
Seniors with conditions that impact cognition may not be able to make sound decisions about their care. Before losing the ability to make those decisions, seniors can assign a durable power of attorney, which will grant a caregiver the ability to make financial or medical decisions for their loved one.
Seniors of sound mind can also benefit from having a durable power of attorney drafted to apply in the event that they become incapacitated. An elder care attorney can guide caregivers and seniors through this process and ensure end-of-life and health care decisions are legally planned in advance.
6. Applying for Guardianship
A caregiver may seek guardianship over a senior loved one because they believe that the senior no longer has the mental or physical ability to make their own decisions or manage their own care. When a caregiver’s loved one resists signing over power of attorney willingly, caregivers may seek guardianship through the courts. This process can be strenuous and involves several documents and tests to verify the need for guardianship. An elder care attorney can advise caregivers of the process, interact with the senior’s appointed attorney and assist the caregiver with the application and court process.
7. Preventing and Combating Financial Exploitation
Unfortunately, seniors are easy targets for financial fraud, especially from unscrupulous adult family members who may see them as a quick source of easy income. Often, signs of financial exploitation are covert, such as tricking or encouraging seniors to sign forms that assign the abuser power of attorney or ownership of assets. Other signs may not be immediately obvious unless someone experienced searches for them, such as unusual transactions and transfers or bills going unpaid. An elder care attorney can help prevent and combat financial exploitation by:
- Identifying potential red flags for financial abuse
- Explaining how to protect assets
- Reporting any potentially fraudulent or criminal activity to the correct authorities
- Assisting with a lawsuit to recover stolen assets
8. Asserting Grandparents’ Visitation Rights
Sometimes, familial conflicts can cause rifts between seniors and their adult children, resulting in estrangement from grandchildren. Family courts offer a venue for estranged grandparents to seek court-ordered visitation with their grandchildren. An elder law attorney knows the local laws on grandparents’ rights to access a child, how to argue a case and whether an individual qualifies for visitation from a legal standpoint. They can assist seniors and their caregivers by:
- Filing a petition for visitation with estranged grandchildren
- Representing seniors in family court
9. Purchasing Long-Term Care Insurance
Seniors with the means to afford their own private long-term care insurance rarely qualify for Medicaid or other assistance programs. However, some of these insurance plans can be prohibitively expensive and may not be the right decision depending on a senior’s financial situation. An elder law attorney can guide seniors and caregivers through their insurance options and advise them accordingly.
10. Planning for Long-Term Care
The right long-term care plan is different for every senior. They depend on several factors, such as what kind of care is needed and what can be afforded. Elder law attorneys can provide assistance with the planning process by:
- Discussing options objectively
- Identifying the best steps to protect assets and spouses when facing the expenses of long-term care
- Creating a plan for potential disabilities in the future, even if they aren’t a concern now
11. Applying for Medicaid, Medicare and Other Government Assistance
Both state and federal governments offer qualifying seniors assistance for long-term care, health care and similar services. These programs often have several eligibility requirements that can be difficult to understand without expert help. An elder care attorney can guide seniors and their loved ones through the application process. They can also offer advice on how assets may affect eligibility and which waivers seniors may qualify for. Some programs that elder care attorneys can help seniors apply to include:
12. Appealing Denials for Medicaid, Medicare and Other Government Assistance
Sometimes, seniors may be denied government assistance, especially if they didn’t meet income eligibility, had recent asset transfers or were missing important paperwork. However, a denial from these programs can be overturned through an appeals process that may include a formal hearing to prove eligibility. Elder law attorneys can help navigate the appeals process by identifying the reason for denial, gathering the necessary information and proving eligibility.
13. Applying for Veterans Benefits
The U.S. Department of Veterans Affairs offers eligible individuals several benefits, including access to health care and pensions. This may cover long-term care, nursing care and home-based and community services. An elder law attorney can help seniors and caregivers navigate the programs, apply and potentially appeal denials if necessary.
14. Navigating Complex Family Situations
When families span generations, situations such as estate planning can often grow complex. This is especially true in the event that members of a family divorce and remarry, bringing additional people into the family tree. Blended families can bring questions about estates, who inherits property and who is responsible for caregiving. An elder law attorney can assist in mediating familial disputes and preventing escalations, such as estate disputes. They can also ensure that the estate plan is up-to-date to reflect a new spouse if a senior or beneficiaries have remarried.
15. Fighting Elder Abuse, Fraud or Neglect
According to the National Center on Elder Abuse, 1 in 10 Americans over the age of 60 experiences elder abuse, but only 1 in 24 is ever reported. This is often due to factors such as a senior’s fear of retaliation, being dependent on the abuser or an inability to report.
How to Choose an Elder Law Attorney
Choosing an elder law attorney is integral to estate planning and protecting a senior’s legal rights. Doing ample research is key to finding the right one for your family’s situation and can lead you to the right attorney. This includes looking into reviews, hearing other people’s experiences and learning the attorney’s legal strategies before retaining them.
What to Look for in a Good Elder Law Attorney
Below, we explain some of the traits of a good elder law attorney and what those traits look like in practice.
Specialization in Elder Law
- They exclusively practice elder law
- They are a certified elder law attorney
- They can answer your elder law questions
- They are up-to-date on new elder law legislation
- They treat you with respect, regardless of the situation
- They respect your wishes and plans
- They respond to you shortly after you reach out
- They’re on time for your appointments or hearings
- They fill out all paperwork correctly
- They make sure you understand all the legal concepts
- They walk you through all of your options
- They’re up-front about their fees
- They’re honest about the chances of success in lawsuits and appeals
- They do not work around the law
- They have great reviews online
- People say good things about them in person
- They’re members of the National Academy of Elder Law Attorneys (NAELA) or National Elder Law Foundation (NELF)
Steps to Finding an Elder Law Attorney
Step 1: Prepare a List and Identify What You Need From an Elder Law Attorney
Before your search begins, list out legal concerns and services you may need to help choose the right attorney. This can include topics such as:
- Transferring and preserving assets for a spouse before entering long-term care
- Planning an estate and how assets will be divided
- Preparing trusts for family members to inherit
- Planning end-of-life care and who will be the Power of Attorney
- Filing for Medicare, Medicaid or disability benefits
- Caregivers filing for guardianship over a senior loved one
Step 2: Look for Local Elder Law Attorneys Using Online Directories and Do Your Research
To begin searching, identify elder law attorneys in your area with directories, such as the National Academy of Elder Law Attorneys or the National Elder Law Foundation. These organizations provide directories of experienced elder law attorneys for seniors and caregivers seeking legal representation.
Once you have a list of elder law attorneys in your area, begin researching them. Identify attorneys who specialize in the legal areas you need most. Research reviews online and keep the attorneys with the most positive reviews on your short list.
Step 3: Ask for Referrals From Trusted People
If you know people who have worked with elder law attorneys, ask them for referrals and about their experiences. Those who were satisfied with their representation will likely refer you to their attorney, while less satisfied people will probably warn you to steer clear.
Step 4: Consult With Elder Law Attorneys on Your Short List
During a consultation, caregivers and seniors can get to know an attorney, discuss legal needs and determine if they are a good fit. Generally, you should try to meet with between three and five attorneys before deciding. This is the perfect time to ask questions about their processes, experience with and opinions on your legal needs and other similar concerns that may arise.
During a consultation, make sure you bring all pertinent information, such as:
- Documentation of all income sources, assets, retirement statements and bank accounts
- Documentation of all debts
- Insurance policies (life, health, disability, long-term care and any other policies you may hold)
- Any previous estate planning documents
Step 5: Choose the Attorney That Best Meets Your Needs
After consulting with several attorneys, it’s time to decide which one best suits your needs. Each attorney will have their own approach to the legal system and their profession, and choosing the one that clicks with you can often be a great deciding factor between two top-notch options.
Original article posted and available at https://www.caring.com/caregivers/15-ways-an-elder-care-attorney-can-help-caregivers/
The seniors I serve in my practice all voice a very similar concern. They are terrified that they will need the services of a nursing home in their old age. For people who are fiercely independent, a nursing home represents not only a loss of personal freedom, but also a massive financial burden that can quickly erase the fruits of a lifetime of productive labor. Nursing homes around the country vary in terms of quality and price, but a recent industry wide study found that the typical price of a nursing home’s semi-private room was $222 per day and that the typical senior stayed in a nursing home for 835 days. For those requiring Alzheimer’s care and higher levels of individualized attention, nursing home costs can easily exceed $90,000 per year. That is going to scramble a nest egg of almost any size. This is when our Medicaid Planning services are most needed.
Deliberate advanced planning can help you preserve your estate and care for your spouse in the event that you need expensive long term care. If long term care insurance is out of the question and you anticipate relying at least in part on Medicaid to fund your long term care, you should speak to an elder law attorney to see what options are available to protect your assets while guaranteeing your care. Still not convinced? Here are five things an elder law attorney can help you accomplish while protecting your assets:
Qualify for Medicaid and Pre-Pay Expenses
For those who are on the cusp of qualifying for Medicaid, pre-paying certain expenses has the dual benefit of reducing qualified assets and paying off known expenses. Pre-paying for known expenses, like funerals, burial plots, and other long term home care expenses permits you to “spend down” the assets that are stopping you from qualifying for Medicaid now while making sure you are not burdening your loved ones when you do pass. An elder law attorney can help you identify what you can pre-pay and retain Medicaid eligibility.
Guaranty Financial Support for Surviving Spouses
Federal law ensures that you can provide for the “monthly maintenance needs” of your spouse while preserving Medicaid eligibility. It creates an allowance that ranges from approximately $2,000 to nearly $3,000 a month. This allowance lets you shelter income that Medicaid would rely on to deny your benefits when those assets are used to provide for your spouse’s long term financial care.
Determining which assets can be sheltered by this allowance and which will stop you from claiming Medicaid benefits is a challenging task and it depends on the nature of your family and a slew of other questions. An elder law attorney providing Medicaid planning services for you can help you take basic steps, like moving cash from a savings account to an annuity that names your spouse as a beneficiary, that will reduce your current financial strain and preserve your wealth over the long haul.
Elder law attorneys can also help you identify which assets are totally exempt from Medicaid’s qualification calculation. Assets like some cash value life insurance plans, personal property, a primary automobile, and certain jewelry are not held against a person who is applying for Medicaid. Knowing what assets are holding you back and which you can safely hold on to ensures both your eligibility and ability to leave a wonderful gift to your heirs.
Provide for Special Needs Family Members While Protecting Your Final Wishes
Irrevocable trusts are powerful tools that can help you qualify for Medicaid and preserve your assets. When created early on in the estate planning process, an irrevocable trust can shelter your assets, provide for the long term needs of your spouse, and create a legacy that will pass to your heirs. That it does all of these things without compromising Medicaid eligibility is what makes them such a profound long term care planning tool.
A Medicaid Qualifying Trust has to be created before the applicable look back period begins and it must comply with specific Medicaid eligibility, tax, and trust guidelines. The complexity of these instruments is worth it for some and is just another reason why an elder law attorney deserves a seat at your planning table.
For people planning for long term care while providing support for special needs children, the prospect of moving to a nursing home is especially daunting. If you are in this situation you can still provide for your family’s unique needs by funding a special needs trust to make sure your children are cared for when you are gone. Like Medicaid Qualifying Trusts, these special needs trusts can be complex and have major consequences if formed or maintained improperly.
Stay in Your House Longer
By taking an early and critical look at your assets and making some early changes, you could stay in your house longer – especially through programs like the CDPAP. States are increasingly allowing Medicaid funding to go to providing home health care. For many, the difference between years in a nursing home and years at home is the presence of a qualified home health aid. Because Medicaid does not consider your primary residence’s value in considering eligibility and will not go after your home’s value once you pass, this exemption means that you can likely leave a gift of equity to your heirs if things are handled properly.
Protect Your Heirs from Lawsuits
If qualifying for Medicaid was as simple as giving your family members and close friends all of your assets or selling things off for $1, everyone would do it! To stop people who would not otherwise qualify for Medicaid from claiming benefits, the system reserves the right to deny people who give away assets benefits and can sue an estate when benefits are improperly paid out. This could result in your heirs getting less of an inheritance and the government taking more of your money.
49 of the 50 states look at transfers made within 60 months of applying for Medicaid. California, the sole exception to this lookback period, only considers transfers made within the past 30 months. An experienced elder law attorney can add value to the gifts you give by ensuring that transfers are properly detailed and are structured to avoid Medicaid disqualification. While there are many techniques one could use to avoid disqualification, your attorney may advise you to make use of an exemption that allows Medicaid recipients to give their homes to adult children who provide substantial home care to their ailing parents. Simply adding your child’s name to the deed could have major tax and Medicaid eligibility consequences, but if done properly it would be smooth sailing.
Contact an Elder Law Attorney Today
While there are a few hard and fast rules concerning Medicaid eligibility planning, every client’s situation is unique and requires deliberate consideration. To create an individualized action plan with one of our qualified attorneys, click here to contact us and make an appointment.
As you approach age 65, you’re probably starting to think about your future – including your health care. Perhaps you’ve had employer-sponsored health insurance in the past and will need Medicare coverage once you retire. Alternatively, you may have individual health insurance, but are soon Medicare-eligible thanks to your age.
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Guest post by: SeniorAdvisor.com
Attorneys can help you and give you legal advice, but unless they focus in that particular area, they can only give general counsel. Senior issues tend to be very complicated and involve more than one aspect. Your decision on one thing, like Medicaid benefits, can be directly tied to other issues like your assets and estate plans. When it comes to these things, you don’t want general counsel, you want an attorney that knows everything about these topics.
Elder law attorneys can lead you through these complex issues and make sure that your wishes are respected and taken care of. They are also usually very involved in the senior community and can help tend to the emotional needs of seniors during these times by providing access to resources and support in the area.
The Importance of Estate Planning for Young Families
As an attorney who works with many parents in their 30s and 40s, I find most are focused on building their careers, accumulating assets, and making decisions that affect them in the here and now. While an increasing number are planning for retirement, very few give much thought to their estate plan and the potential problems that could arise without one. What they fail to realize is that their avoidance of these critical issues can have serious, if not devastating consequences for the people they love, and that a minimal amount of time and effort can prevent a tremendous amount of potential hardship.
Let’s look at an example to get a better understanding of the necessity of planning. Charles (36) and Sarah (33) are a married couple with two young children living in New York. Both are employed in professional jobs. Aside from some basic financial necessities, like enrolling in their 401(k)s and purchasing $500,000 term life insurance policies, they have put all other planning on their “to-do” list for when they can get around to it.
Unfortunately, Charles and Sarah are ill prepared for an unexpected tragedy that would leave their children without parents. Drawing up wills has sat uncompleted on their to-do list since their first child was born. Charles incorrectly believes that, should something happen to him, everything would simply pass on to Sarah. He also thinks that his parents would automatically take custody of the children if anything happened to both of them. And, because they both named their children as contingent beneficiaries on their retirement and life insurance plans, they feel assured their children’s finances are secure.
No Will? No problem. The state will write one for you: What Charles and Sarah don’t understand is that they actually do have an “estate plan,” except, instead of reflecting their own wishes for the disposition of their assets and guardianship for their kids, the plan reflects the laws of their state (in this case, New York).
Who will take care of the children? Without specific instructions as to who will take care of the children, the court picks a guardian. Each side of the family will most likely have different views on who should take the kids. Should it be Sarah’s sister who lives in New York or Charles’ brother, who is better off, but lives in Florida? This can become an ugly fight, and instead of families focusing on grieving, they can be torn apart fighting over who will take care of the children.
Who will control the children’s assets? The person whom the court designates as the guardian will likely be the person who manages and controls the assets left to the children. That person may be the best person to raise the children, but not necessarily the best one to manage finances. (A will can specify a different guardian for each role, if desired.) Also, naming minor children as contingent beneficiaries instead of having the assets being placed in a trust for the benefit of the children is fraught with hazard. Unless otherwise specified, the children will automatically control the assets when they turn 18. Imagine that $500,000 life insurance policy and the house being transferred to your child when s/he turns 18. Will s/he know how best to oversee the assets?
All assets may not go to Sarah: If Charles should predecease Sarah, or vice-versa, any assets that are subject to probate, such as savings accounts, non-qualified investments, or separate property, will be split evenly between the spouse and the children. That means that the spouse owns half and the children own half. If the surviving spouse wants to sell or make use of the children’s assets, it must be for the benefit of the children.
Incapacity: If either or both of them survive the tragedy, but are incapacitated and unable to make financial or health decisions, without a power of attorney, a member of the family will not be able to take over the finances of the household without court intervention. If there is an end of life decision to be made, then without a designated health care proxy or a living will, the family must once again go seek the court’s permission to act.
Estate Planning for the Expected
Estate planning is not just for the wealthy, nor is it limited to the process of distributing assets after you die. It also provides certainty for you and your family when the unexpected occurs during your lifetime. While estate planning can be expensive and complex when dealing with mega-estates and multi-generational families, it also offers some very straightforward and inexpensive legal protections for the average American family.
In the case of Charles and Sarah, they could protect their estate and their family with the following 4 documents:
A Will would become the guiding document for the court, naming an executor and a guardian. A will also specifies how assets are to be distributed. A trust for the benefit of the children can be created in this will, and can control when and how the children receive assets.
Powers of Attorney would ensure that financial and business needs can be handled, without delay.
Health Care Proxies and Health Care Directives (Living Will): A Health Care Proxy designates who can make medical decisions for you in the event you become incapacitated. A Living Will allows you to state your end of life preferences and your view on life support and artificial nutrition and hydration.
Seeking Estate Planning Guidance
You may be young now, but the best time to begin arranging your estate is the moment you begin to think about it. If you chose to use some of the legal platforms such as LegalZoom.com, Nolo.com, and RocketLawyer.com, keep in mind that estate laws are complex. When planning an estate, no matter the size, the stakes are high, and it can be prudent to seek the advice of a qualified estate planning professional. With the national average cost for these four important documents being $1,000, its almost irresponsible to not take these steps. (Forbes “Rites of Passages” July 16, 2012).
Elisha Wellerstein, Esq. is the founding principal of Wellerstein Law Group, P.C. with offices in Queens, Nassau, Suffolk and Manhattan. Elisha can be reached at (718) 473-0699 or [email protected]