Elder Law... Planning Techniques, Part 3

When crafting an estate plan for an elder client, it is important to consider two additional possibilities.

First, it is important to keep in mind that estate planning for elderly clients is sometimes crisis driven. For example, it is common that issues such as an imminent admission to a nursing home, serious illness, or an impending medical procedure might be in play.  While this may not affect the goals the clients hope to achieve, if time is short, it may very well affect how realistic it will be to accomplish certain goals.  

Secondly, the ease with which a client's goals might be determined may be impacted by the emotional fall-out from the issues stated above. 

Consequently, it is vital to proceed carefully and with patience to be sure that the elder client's best interest, holistic needs and objectives are met.  

Elder Law... Planning Techniques Part 2: Key Assets

As noted in our previous post, at the outset of an estate plan for an elderly person, the same essential documents needed by a person of any age will be required. However, beyond the basic documents, responding to the particular concerns of elders will require considering a variety of other planning options.  It is probably easiest to think of these planning options with respect to different types of assets.

We will be discussing various assetts over the next few posts... today we'll start with the home:

An elderly client's most valuable asset is often his or her home, and many elderly clients have foremost in their minds protecting that home.  Integral to consideration of the home, and the planning techniques surrounding the home, is the issue of caregiving – it is impossible to determine what the client's living situation will be without giving consideration to who will be providing care to the client if he or she is in need.  Some of the specialized techniques relating to the home, which will be reviewed in more detail below, could include: long-term care agreements, gifting (either outright or as retained life-estate deeds) or creating joint deeds, and long-term care insurance policies.  With the various changing place in laws and regulation at both the federal and state level, the viability of some techniques has been called into question, but they are worth mentioning nonetheless. 

Elder Law... Planning Techniques

No matter what goals a client has expressed, most elders will require at the outset the same essential documents needed by an estate planning client of any age, namely, wills, powers of attorney, both financial and health care, and possibly trusts.  However, beyond the basic documents, responding to the particular concerns of elderly clients will require considering a variety of other planning options. 

It is probably easiest to think of these planning options with respect to different types of assets. Over the next few posts we will review the most common asset times.

Elder Law... Key Questions

As noted in our previous post, when working with elders for estate planning purposes there are some areas where more detail is needed. To identify each eledrly client's key objectives, it is important to engage in a dialogue with the clients about their families, their work, their interests and hobbies.  Out of this discussion will emerge the client's major concerns and the goals for the estate planning process. 

Some areas that are typically top concerns for elderls may include:

·        Nursing home costs – do they have enough funds to pay for their care should they need it...

·        Planning for what would happen if they become incapacitated (who would help them, what are their wishes, etc.)

·        Where they want to live – do they want to stay in their home for as long as possible, or do they prefer to plan for an assisted living facility

·        How a healthy spouse would be protected financially if the other spouse needed to enter a nursing home facility

·        How to protect some assets for their children, no matter what their financial circumstances

Working With Elders...

In working with elderls for estate planing purposes, there are some areas where more detail is needed. For example, status and type of any long term care insurance, current and anticipated expenses, and exact sources of income.

But overall, the difference will be one of emphasis. 

In order to determine a client's goals, the first question that needs to be answered is, "What do the clients hope to achieve through estate planning?"

Estate Planning for All Ages

People sometimes ask about how the process of determining the estate planning goals of elderly clients might differ from the process for younger clients. The truth is that the process is the same, although the goals may be quite different. The most important part of any first meeting with an estate planning client, regardless of age, is the "fact find."

Most estate planning lawyers begin an appointment with any new estate planning client by doing a fact find, either orally or by using a questionnaire. Many questions remain the same, regardless of the age of the client; for example:

• Family and occupational information, including children's names, ages and locations
• Financial and business information, such as ownership of a business, names of accountants and financial advisors, if any, amounts and providers of life or long term care insurance
• Complete asset profile (bank accounts, real estate, securities, personal property, retirement accounts, annuities, etc), and income information
• Current estate planning documents
• Whether gifts have been made
• Charitable intentions</blockquote>
• Thoughts about who clients would like to have act for them
• Clients' own expression of their goals

Family Dynamics in Elder Law

This topic raises what can be the most difficult aspect of working in the elder law area, and can be summarized in two words: "family dynamics." 

Elder law planning is not a cut-and-dried area – there are no one-size fits all solutions.  In the process of gathering information from the client in the initial meeting, it is very important to develop a sense for the client and his or her family.  Who does the client trust?  Who does the client think is good with money?  Which of the client's relatives can make tough health care decisions for the client?  In some cases, the answer will always be one and the same person, but definitely not always.  It is important for the lawyer to work hard to elicit the client's wishes, and to be sure that decisions in this area are not being unduly influenced by one relative or another.

One way to be sure that the right individuals will be chosen for agent/executor/trustee is to explain each of those roles to the client.

Another FAQ: What is Probate, Anyway?

Many people we meet are unfamiliar with the ins-and-outs of probate, and often ask us to clarify a number of questions.

Very simply, probate is the process by which a person's assets change hands at their death. If a person dies and his or her will says that all assets are to go to the children, the children cannot take possession of those assets until the will and other papers have been filed with the probate court, and the probate court has given its approval. The whole process usually takes at least six months, and often more.

Another Frequently Asked Question

Another frequently asked question is, "Do I need to do estate planning with an attorney?"

Most people will benefit from a properly drafted estate plan. Even if a person has modest assets, the other documents created in the estate planning process, such as the durable power of attorney for financial matters and the durable power of attorney for health care, are of great benefit in assisting a person's family in administering his or her affairs should he or she become ill or incapacitated. Beyond that, a will, or in many cases, a trust, is very helpful in creating an orderly way for assets to pass when someone dies.

As far as using an attorney is concerned, while it is true that many of the documents that an estate planning attorney will use can be found in very simple form in a bookstore or online, these documents, when used by a non-lawyer, might not be able to encompass the complexities of particular individual situations. Read more...

Two Estate Planning Musts!

While we will be resuming our "Caring for an Aging Parent" series soon, an interesting question came up recently that we want to share.

A potential client called us the other day and asked us which estate planning documents were absolutely essential. It is our belief that everyone 18 years and older should have two documents:
     1. Durable Power of Attorney for Health Care
     2. Durable Power of Attorney for Financial Matters

These documents ensure that someone can act on your behalf if you’re disabled or incapacitated. Without these documents, a guardianship will likely be necessary. Guardianships are typically costly, time-consuming and stressful. In a guardianship, you lose control and the Court decides who will make health care and financial decisions for you.

It our experience that families could alleviate stress and save thousands of dollars by executing these two documents when they are healthy and able to do so.

Caring for an Aging Parent: Part 2

In our previous post we began a discussion about the challenges and best practices associated with caring for an aging parent. 

In addition to the information shared with respect to dealing with an aging parent's reluctance to stop driving due to loss of functional ability, you may also contact the Department of Motor Vehicles yourself and request that your parent's license be revoked until testing is done. In New Hampshire, drivers who are 75 years of age or older at the time their current driver license expires are generally required to renew their license in person at a local DMV office and will often be asked to take a road test as well as written examination. It should be noted that we have heard that this requirement may be discontinued. Nonetheless, some seniors successfully pass such hurdles and still may pose a danger on the road.

In such a case, the only legal option to remove a senior's ability to drive is to obtain a guardianship. This requires court involvement, and if contested, can be costly, and in some cases, the result is not favorable. Please feel free to contact our office if you need assistance relating to this issue.

The following is a safe driving list. The answers to these questions can help you determine whether a conversation about this issue with your parent needs to take place.

Safe Driving Check List:

1. Vision: Can your parent pass a vision test?
2. Hearing: Does your parent leave the turn signal on because they can�t hear it? Being able to hear (turn signals, other vehicles) is critical to safe driving.
3. Have you noticed any unexplained dents in the garage or on the car?
4. Does your parent allow other people in the car if he/she is driving?
5. Does your parent seem unusually nervous when driving?
6. Is your parent driving too slow or too fast?
7. Has your parent forgotten to turn on/off car lights?
8. Has anyone else, such as neighbors observed anything unsafe with your parent's driving?
9. Please remember that medications can sometimes have a negative impact on driving at any age.

Caring for an Aging Parent: Part 1

Given demographic changes and in light of the number of baby boomers, we thought it would be helpful to our clients and business partners if we started a series regarding caring for your aging parent.

This series will discuss issues relating to caring for an aging parent and will hopefully assist you with some of the difficult decisions that are involved with doing so.

So, welcome to the first article in our series, "Caring for Your Aging Parent."

_______________________________

My aging parent's driving is now a safety issue... What can I do? *

This is a difficult question that many caregivers face. The Federal Highway Administration reports that drivers age 70 and older experience more motor vehicle fatalities than any other driving group other than the drivers who are under the age of 20. Aging affects everyone differently and often there can be a decline in physical and cognitive abilities.

This being the case, children are often concerned about a parent driving when it is no longer safe for that parent to do so. As you may know, there is no mandatory age for taking away someone's license. Therefore, legally, what can a child who is concerned about a parent's safety do?

Ideally, the parent will recognize the safety issue and give up driving voluntarily. This was the case of my grandfather. My grandfather was able to ride a motorcycle until he was 90. Subsequently, his reflexes declined and at 92, he understood his limitations and voluntarily gave up his license. Unfortunately, other seniors, despite frequent accidents, refuse to give up the independence driving brings to them.

First, it is important to understand that change is not easy for most people and that giving up something significant such as driving can be very difficult. For this reason, speaking with your parent about this issue and giving your parent a reasonable amount of time to process the possibility of losing his/her license can be more effective than just telling them that it needs to happen now.

Considering the Safe Driving Checklist provided below sooner rather than later can also be helpful. Beginning the process with limiting night driving and introducing your parent to alternate forms of transportation resources can also be useful.

If despite your efforts to convince your parent otherwise, your parent continues to drive, you may want to discuss the issue with his/her physician. A doctor can do a test of his/her physical and cognitive functionalities and discuss with your parent how these functionalities if impaired may impact the ability to drive safely. A healthcare provider can also notify the Department of Motor Vehicles that your parent should be tested.

Trust Protectors & What You Should Know

Most of us are familiar with the word, "trustee," but may not be familiar with the words "trust protector."

A trust protector is a person the Grantor of a trust appoints to ensure that the trustee of the trust carries out the Grantor's wishes and intent. Unlike a trustee, a trust protector is not involved with the day to day administration of the trust. However, a trust protector does monitor the actions of the trustee and can make important decisions about the operation of the trust or about the distribution of the trust assets.

When are trust protectors useful?

Educational, Support and Special Needs Trusts: Trust protectors can be useful to assist a trustee in connection with the administration of educational, support and special needs trusts where a trustee's discretion is more limited. A friend or family member acting as a trust protector is likely to be familiar with the Grantor's intent and may be able to make better decisions about tough choices about family issues than institutional trustees. A trust protector can also be helpful in making decisions about discretionary distributions from the trust.

No financial experience: When the trustee is not experienced in financial management, the Grantor may want a trust protector to have the power to approve or veto the trustee's investment decisions.

Poor health and/or advancing age: If the Grantor feels that the trustee may eventually be unable to make good decisions at a later time due to poor health or advancing age, the trust protector could have the power to review and approve the trustee's accounts.

Incompetency/Violations: In the event a trustee becomes incompetent or violates the terms of the trust, a trust protector having the ability to remove a trustee and appoint a replacement is helpful.

Changes in circumstance: Trust protectors can be helpful if the terms of the trust need to be changed due to changes in circumstances relating to health, disability and financial situations.

Mediation: As a person who is familiar with the Grantor's wishes, a trust protector can assist with mediating disputes between the trustee and the beneficiary(s) or between the beneficiaries themselves. Having a trust protector is some cases may be a cheaper, faster alternative to resolving these disputes in court.

What are the downsides of having a trust protector?

The appointment of a trust protector can impose additional costs on the trust administration, may conflict with the trustee and could interfere with the efficient management of the trust.

Are trust protectors really necessary?

Sometimes, they are helpful. However, in other cases, appointing a co-trustee or allowing a successor trustee to appoint a subsequent trustee can accomplish the same objective(s). Empowering a special trustee to act under certain circumstances about a particular issue can also be an effective alternative.

If you have any questions regarding trust protectors and whether it would be appropriate to have one in your situation, please feel free to contact our office.

Family Care Givers, The Backbone of Long-term Care: Part 3

It is a myth that most of the elderly are cared for by nursing homes or health care institutions, In fact, 87% of those who need long term care receive that care from unpaid caregivers. That being the case, what can you do to make caregiving easier down the road? The key word is “plan.”

 

As noted in our previous two posts, first you must determine where to start, and then learn about estate planning. Finally, be sure to take care of yourself:

• Accept help
• Information is power; be proactive
• Consider your own needs, “put your oxygen mask on first”
• Join a support group
• Get respite, take time off for you

Family Care Givers, The Backbone of Long-term Care: Part 2

It is a myth that most of the elderly are cared for by nursing homes or health care institutions, In fact, 87% of those who need long term care receive that care from unpaid caregivers.  That being the case, what can you do to make caregiving easier down the road?

The key word is “plan.”

First, as noted in our previous post, you must determine where to start.  Next, learn about estate planning:

• Estate planning documents give the person you choose the power to appoint agents to make decisions when you cannot
• It can avoid guardianship
• It will help control what happens to your assets upon death
• It makes things easier for friends and family
• Even if you have documents, laws change and the documents should be reviewed to determine if any updates are needed; we typically recommend reviews at least every five (5) years

Family Care Givers, The Backbone of Long-term Care: Part 1

It is a myth that most of the elderly are cared for by nursing homes or health care institutions, In fact, 87% of those who need long term care receive that care from unpaid caregivers. That being the case, what can you do to make caregiving easier down the road?

The key word is “plan.”

First, determine where to start:

• Review bank and financial arrangements; Seek help from a financial advisor about how to maximize assets to pay for the care of a loved one
• Create a safe environment at home; safety checklists are available on www.aarp.com
• Look into benefits; i.e., social security, pension, disability and veterans
• Maintain medical records
• Consider care options available now and in the future, such as you home, someone else’s home, independent living retirement community, assisted living, nursing home, continuing care retirement community
• Determine how you will pay for the care
• Know that elder depression, although common, is not a part of growing old. Learn to recognize the signs of depression. Is the house dirty, where it once was clean? Are they neglecting chores that they once liked to do? Are they neglecting their own hygiene? Is the refrigerator and/or pantry stocked?
• Identify resources to help you (an elder law attorney can assist you with this)
• Decide on either estate planning or guardianship