Estate planning is a long and tedious process and one that you surely don’t want to undertake by yourself. It is always best to hire an estate planning attorney to help you on this journey. They can relieve the tedium, make things go more smoothly and efficiently, answer all of your questions, and leave with the best possible outcome for you and your loved ones. But what is an estate plan? An estate plan is a combination of wills, trusts, end-of-life, and other documentation put together in a portfolio. There is a lot to consider when creating an estate plan. Who will get your money and assets after you die? Who will care for your disabled spouse or children if you have any, and how will you be buried? These and many other questions are answered and taken care of in the estate planning process.
Elder law is a highly sensitive and specialized area of law that focuses on helping seniors and the elderly through the later phases in life. It is different from other areas of the law because of the age of the clients. Older adults often have different things going on than younger adults, and their needs are often more specialized. An elder law attorney is often more equipped to deal with the sensitive emotional and financial needs of seniors and disabled adults. This means that they are able to handle challenging situations effectively. Elder law attorneys are able to deal with a wide variety of issues, including estate planning, long term health care, social security, guardianship, retirement, and Medicaid (or Medi-Cal in California), and Medicare. Continue reading “What Exactly Is Elder Law?”
What’s hospice, and how does it work?
The formal definition of hospice, as per Medicare, is that hospice is for people who are terminally ill and not expected to live more than 6 months.
People need to understand that hospice is intended for people who are terminally ill, and the focus is on care in the form of comfort, and not on care for curing the person’s illness. Hospice care starts when your doctor and the hospice doctor certify that you’re terminally ill, which means that you are not expected to live more than 6 months.
Medicare explains it as follows: When you choose hospice care, you decide you no longer want care to cure your terminal illness and/or your doctor determines that efforts to cure your illness aren’t working.
There are people who actually “graduate” from hospice. It’s very rare, but some people placed on hospice later improve to the extent that they no longer need hospice care. In one case that I heard of, the woman actually went home and eventually started working again. Highly unusual, but it happens.
Hospice care is generally provided in the home, and for many people, that’s exactly what they prefer.
But have you prepared all the necessary legal documents ahead of time for any decisions that need to be made while you’re still alive, and for people to follow your wishes after your death?
All too often, I am asked to visit someone on hospice to prepare their legal documents, but sometimes the family has simply waited too long, and the person cannot make legal decisions or sign anything. This often leaves the dying person and the family in a very difficult position.
Who can make the person’s healthcare decisions? Who can pay their bills and make their financial decisions? Who will get their assets when they pass? Who’s in charge?
These are all very real questions that need to be given a lot of thought while the person is still of sound mind and can make the decisions their way without being unduly influenced by others.
I recently had a visit from siblings who accused one brother of stealing from the brother with Alzheimer’s, and of having the ill brother change his power of attorney after the ill brother was already diagnosed with Alzheimer’s.
Picking the right people to make decisions for you is critical, and having the right documents put into place while you’re still mentally competent is also critical. You want the right people making your decisions for you, and you want your assets to go where you decide you want them to go upon your death.
The last thing you need is for you to have your hard-earned money stolen from you or your beneficiaries, or to have your assets spent on a litigation battle between your heirs and other beneficiaries.
Take care of things while you can and appoint people you trust to make the right decisions for you and follow your wishes.
What is a Power of Attorney? Sometimes it’s called a Financial Power of Attorney. It’s a document that gives authority to your named Agent to act for you in various situations. That may be paying your bills, accessing your bank accounts, closing your accounts, or even selling your residence.
Have you named a successor Agent? Maybe you named your spouse or your oldest child as your Agent, but what if that person cannot act for you. Have you named an alternate so that you have some back-up?
Is your power of attorney elder law friendly? An example of the importance of this is whether your Agent can protect your assets and get you onto government benefits such as Medi-Cal if you need assistance at home or you want Medi-Cal to pay for your nursing home costs. It’s not just a matter of the application, but also allowing transfers of assets for eligibility for those benefits, and protection against the state placing a lien on those assets for repayment to the state. These are critical issues for many elders, and the lack of a power of attorney, or having the wrong power of attorney, can prohibit your family from taking the necessary actions to protect you and your loved ones.
I have seen many individuals and families face financial hardship because a proper power of attorney was not in place. Getting a good power of attorney is not difficult. Not having the right one in place when you need it can be devastating.
Every adult should have the right kind of power of attorney in place and have the best Agent and successor Agent available to take action to help them. It’s one of the most important documents that a person can have. If you don’t have a durable power of attorney in place, get one. If you have one, make sure that it is detailed enough to allow your Agent to take the necessary actions that may be needed to protect you, to care for you, and to protect your assets for the benefit of yourself and your family.
Back by popular demand, The Free Public Forum part II on Dementia and Alzheimer’s. We invited the experts back to Morgan Hill, CA to speak and answer your questions. These public Forums are very educational. We will continue to bring Dementia and Alzheimer’s awareness to the community. Please find us on Facebook and Google + for more information about future events.
California Welfare and Institutions Code 15610.07 WIC — Elder abuse.
(a) “Abuse of an elder or a dependent adult” means any of
(1) Physical abuse, neglect, abandonment, isolation, abduction, or
other treatment with resulting physical harm or pain or mental suffering.
(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.
(3) Financial abuse, as defined in Section 15610.30.
I had originally planned to write something different for this article, but this morning I received a call from an attorney friend who was trying to help his aunt. The aunt is in her late 90s and has had advanced Alzheimer’s for a number of years. The aunt has enough income to pay for her apartment rent, utilities, and food. It turns out that she had to be hospitalized because a grandson was physically beating her. The hospital reported the abuse and it became public. Several family members had been living with the aunt because she was the “golden goose” with her income, and they could live there for free and use her money to buy food. Other family members didn’t report the known abuse because they didn’t want to lose their golden goose. The physical abuse is certainly elder abuse, and the case likely involves elder financial abuse as well because the aunt’s income was being used to support several other people to her detriment.
The first step in these cases is generally to call the Adult Protective Services (APS) office in the county where the elder resides. They have the resources and trained personnel to handle these cases. If you suspect that an elder is being abused, whether it’s physical abuse or financial abuse, report it.
I had a recent case where a son moved into his father’s big house and hadn’t paid rent for two years, so the 94 year old father, who was living in a very old, one bedroom house together with his caregiver friend, was deprived of the rental income he needed to pay for food and medicine. The son was supposed to pay his father’s utilities, but the gas and electricity had been cut off once, the water department had threatened to cut off his water, and the son had refused to pay for his father’s land line telephone, so it was cut off too. The son was taking his father’s income and only giving the father $300 a month to live on, which was not even enough to provide food for the father and his caregiver.
Don’t let these things happen to someone you know. Report elder abuse if you suspect it.
Most people know that they should have some type of an estate plan in place, but they just haven’t gotten around to it yet. Or perhaps they made a plan 10 or 20 years ago, and it’s now outdated due to family changes or tax law changes. Procrastination is the enemy of good planning. Don’t let yourself wait so long that dementia, sudden illness, or death will prevent you from doing proper planning. Plan ahead.
Good estate planning encompasses how decisions will be made if a person dies or becomes incapacitated, and elder law planning takes things a step further to look at how your assets can be protected in the event that you need nursing home care. Everyone should consider both.
If you succeed in reaching the ripe old age of 65, the odds are slightly greater than 50% that you’ll spend some time in a long-term care facility, and the average length of stay in a long-term care facility is about two and a half years. That’s a huge cost. Don’t take that gamble.
A great myth about Medi-Cal is that you can’t qualify unless you have no money at all, or that the state will take everything from your family when you die. Proper planning can change all of that. Learn what can be done.
If you don’t yet have an estate plan, you should consult a knowledgeable attorney. If you have a plan, but haven’t looked at it for 5, 10, or 20 years, I suggest that you pull it out, take a good look at it, and see whether it still accurately reflects your wishes. If your plan was prepared without looking towards the potential need to have Medi-Cal pay for your long-term care, then your existing durable power of attorney may actually hamper the Medi-Cal planning efforts that someone might want to do on your behalf. Be proactive. As Gen. George S. Patton said, “Be prepared for the unknown by studying how others in the past have coped with the unforeseeable and the unpredictable.” Don’t let yourself delay to that point where the lack of a plan hurts you and your family.
March 2017 in Morgan Hill, California, attorney James A. Ward sponsored a free public forum on Dementia and Alzheimer’s. He invited two local experts in the field to speak on the subject; Tiffany Mikles who has over 20 years of experience working with seniors and training care providers; and Dr. Gary Steinke M.D., founder of the San Jose Alzheimer’s Activity Center. Both speakers have immense knowledge on the disease and both speakers share a passion for helping and educating the public. James Ward is an Estate Planning and Elder Law attorney who meets clients every day and has seen firsthand the reality and the struggle for families watching a loved one decline. His passion for helping clients prompted the idea of sponsoring the first public forum on Dementia and Alzheimer’s in Morgan Hill, CA, and many of the attendees requested more forums in the future, so Mr. Ward plans on holding two forums each year.
What’s your name? No, no, I need your legal name? Do you have a valid ID?
We frequently have name problems with people, and we frequently have ID problems with seniors. Don’t let this relatively simple issue become a major problem or inconvenience for you or your family.
I have had people tell me that the name or spelling on their driver license is incorrect, and that I don’t need to worry about it. Really? Not true. If we’re creating legal documents, we need to have your legal name. We can include an “aka,” or “also known as,” but we need to have your legal name.
How can a person pay for nursing home care without depleting all of their assets, or without the state taking their home after they die? Those are critical questions, and the lack of the right information could cost a family more than $1 million.
If you’re eligible for Social Security, you probably know it. If you’re eligible for Medicare, you probably know it. But what about Medi-Cal? How will you pay for the costs of nursing home expenses? Could you be eligible for Medi-Cal to pay those costs and not know how to qualify and protect your assets? Have you planned ahead to protect your family’s assets? Are you aware that nursing homes in the Bay Area charge $11,000 to $12,000 a month? Yes, it’s true, and how will you pay for it?
Many people have long term care insurance and think they’ll be okay, but they don’t realize that their insurance plan isn’t sufficient to cover all of the costs. Will your plan cover $350 or $400 per day? Most plans won’t, and most people don’t know how much their plan will pay.
One of the greatest failures I see as an Elder Law Attorney and Medi-Cal Planning Attorney is the general lack of awareness of what can be done to protect a family if you use proper planning. I recently read an article written by a nationally renowned estate planning attorney who said, “If the elder law attorney can advise clients early enough, . . . they can alleviate later problems.” But a lot of people don’t plan properly, and then I see the family disasters after it’s too late to correct.
The average length of stay in a nursing home is 30 months. That’s 2.5 years. That puts the total cost of an average stay at about $350,000, but what about all the people who end up staying much longer? Can you afford that? How will it affect your spouse and family? How can we protect your money?
70% of individuals are impoverished within one year of entering the nursing home. 50% of all couples are impoverished within one year of one spouse entering the nursing home. It’s expensive. What can be done to protect your assets and establish some level financial security?
Federal law permits Medi-Cal planning, and people who plan ahead can protect their assets for their families. What about the families who think that the parents’ home will go to the kids when both parents die, but the home later must be sold to satisfy the debt to the State of California? Why does this happen? Two reasons: (1) lack of knowledge, and (2) not having the proper legal documents put in place by a knowledgeable Elder Law Attorney who specializes in the financial side of Medi-Cal Planning and Eligibility for clients.
Lack of proper planning can cost a family hundreds of thousands of dollars.
A local woman came to me recently because her long-term friend had died six weeks earlier. He had gifted her 50% of his home four or five years ago, and the other 50% of the home was held in his trust to be distributed to her following the man’s death. The problem was that the attorney who prepared the trust wasn’t familiar with elder law rules and Medi-Cal, so now the State of California will seek repayment of his Medi-Cal bill. He had been in the nursing home for about five years prior to his death, so his debt back to Medi-Cal will be around $500,000 to $600,000. The woman who was to get the home will now have to pay the debt to the state if she wants to keep the home for herself. Neither the woman, nor the friend who died, were ever advised that there could be a problem with her getting the rest of the home upon the man’s death. Sad result.
Don’t leave your future to chance and hope. Take care of yourself and your loved ones. Make sure that you work with a qualified elder law attorney and have a quality estate plan in place.