Elder law covers a wide range of topics, including but not limited to, the preparation of Wills and advance directives, the implementation of Estate and/or tax planning to protect assets, the restructure of an Estate to achieve Medicaid eligibility and obtain long term care coverage, the commencement of a Guardianship proceeding for an incapacitated loved one, and the settlement of an Estate after a death in the family. When these situations and related issues arise, an Elder Law attorney is best equipped to represent you to navigate and address this broad range of often complex and interrelated legal issues.
No matter your age or family circumstances, there is no better time than the present to start planning. Whether you are in need of simple Estate Planning documents to appoint someone to make decisions on your behalf and to direct how your Estate should be distributed upon your demise, or if you are need of more sophisticated planning in connection with asset protection and long term care matters, consulting with an elder law attorney to explore your options makes great sense at any age. Elder law is not only for the elderly!
Although often intertwined, the practice of Elder Law is geared more toward protecting a loved one and his or her assets in the context of obtaining government benefits such as Medicaid to cover long terms care costs, whereas Estate Planning is geared more toward the protection of wealth accumulation for family members through various Estate and tax planning vehicles.
What is the difference between a Power of Attorney and a Health Care Proxy, and how do I know which one I need?
A Power of Attorney is a legal document in which you appoint another individual to conduct financial transactions on your behalf, and a Heath Care Proxy is a separate legal document in which you appoint another individual to make health care related decisions on your behalf. In order to have a complete and sound plan, it is important to have both of these documents in place.
A Living Will is a written expression of your wishes regarding the implementation of life sustaining treatment under certain dire medical circumstances. A Will, on the other hand, is a legal instrument whereby you direct how your Estate should be distributed to your loved ones upon your demise. Similarly, in order to have a complete and sound Estate plan, it is important to have both documents in place.
If you were to die without a Will stating your desires as to the distribution of your Estate upon your demise, the “laws of intestacy” will control how your assets will be distributed to your surviving heirs. This often may be very different from your own testamentary plan, which is why preparing and executing a Will setting forth your wishes is an integral part of any Estate Plan.
Should I have a Trust, and if so, what is the difference between a Revocable Trust and an Irrevocable Trust?
There are many kinds of Trusts that accomplish very different things in the context of Elder Law and Estate Planning. Determining which type of Trust works best for you in achieving your goals, depends upon your unique circumstances. In general, Trusts are legal vehicles into which you transfer assets and direct the ultimate distribution of same to your loved ones. A Revocable Trust can be changed at any time, whereas an Irrevocable Trust typically cannot. However, an Irrevocable Trust is effective in protecting assets from creditors whereas a Revocable Trust does not offer any sort of protection.
The average cost of a nursing home on Long Island is approximately $12,000 to $15,000 per month! Unless you are prepared to pay privately for such a facility, you may choose to instead explore the various planning options available to protect assets and achieve Medicaid eligibility to cover long term care costs either now or in the future. An Elder Law attorney can provide the necessary guidance and tools to accomplish this either in advance of any such need or in the event of an immediate need for nursing home care.
In order to determine whether you or a loved one are eligible for Medicaid and/or whether you can implement planning steps in order to qualify for Medicaid benefits, an Elder Law and Estate Planning attorney is best situated to analyze and evaluate these often confusing matters, and provide legal advice in connection with same. In this regard, the “lookback” period, or the time period during which all asset transfers can be investigated, for chronic care Medicaid coverage in a nursing home is 5 years, and careful attention must be paid regarding asset transfers and/or gifts of assets, and the impact of any such transactions on establishing Medicaid eligibility in consideration of the 5 year “lookback” imposition.
There are various planning tools and options that can be utilized and implemented in order to provide for asset protection for an elderly parent or other loved one. Determining the appropriate Estate Plan and strategy is wholly dependent on the circumstances and the planning goals. An Elder Law and Estate Planning attorney can evaluate the situation and provide recommendations as to how to best devise and carry out an appropriate planning approach.
You can provide for and appoint a Guardian of your minor children under the terms of your Will. Without a Will in place, or without such a provision in your Will, it will be in the discretion of the Court handling the settlement of your Estate to appoint a Guardian. This can often lead to family dispute over who is best situated to act in this capacity. In an attempt to avoid any such conflict, it makes best sense to make your wishes clearly known and appoint the Guardian of your own choosing in your Will.
Protecting and providing for a child with special needs is a very real and legitimate concern for many parents. The creation and funding of specialized Trusts designed specifically for this purpose, either created during the parents’ lifetime, or upon their demise through their Wills, with the assistance and guidance of an Elder Law and Estate Planning attorney is of the utmost importance and should be fully explored in applicable situations.