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.