by Edward E. Zetlin, Esq.
Planning for the future can be daunting. Hiring the right attorney is key.
Adult children and their parents will meet, gather, and talk over the upcoming holiday season. If the family has not seen each other for months or even a few years, changes in the growth of grand-children or newly born children will be a huge focus. At the same time, subtle changes in the parents’ ability to accomplish daily tasks because of physical or memory problems becomes apparent. How does the family talk about these issues and what steps should be taken?
Edward Zetlin, Esq.
Estate planning and elder law is a proactive area of law. Talking about such issues and how to plan is what we do. Traditionally, estate planning is preparation for the inevitable – death. A proper estate plan establishes the who, what, and when of what happens to a client’s property after the client’s death.
It involves the drafting of a will, revocable living trust, and documents to transfer assets. But with the advent of elder law over the last 30 years, planning for incapacity became the paramount concern. Elder law attorneys also do estate plans, but we also address what happens to the client’s estate and personal life should the person lose capacity.
What do we mean by planning for incapacity? We mean insuring that the decisions we would want made and by whom are established in advance. The default of not doing advance planning is a guardianship and conservatorship. In a guardianship (for personal decision mak-ing) and conservatorship (for financial decision making) the court establishes that the person is already incapacitated and needs a substitute decision maker for personal and financial decisions.
Such a court case is costly and time consuming. The court may not always appoint the person you would have wanted as your decision maker.
What are the basic tools for advance decision making? The financial durable power of attorney and an advance directive are the basic planning tools. In both documents, the appointment of an agent for future decision making is required. The appointment under such documents doesn’t mean that the agent begins to immediately take over — the agent is a deputy appointed to step in when the person can no longer do the normal things of life: pay bills; maintain property; get medical information; make medical decisions.
Paramount to the creation of such documents is the selection of the agent. Here the estate planning/elder law attorney should advise. The attorney’s job is not to select but to advise the client how to select. The revocable living trust is also used for an advance decision making. Think of the revocable trust as a financial power of attorney on steroids. The trustee actually holds legal title to the property but must manage the property for the beneficiary’s welfare. The beneficiary is you the maker of the trust but may also be future beneficiaries after you die.
The revocable living trust is a hybrid document used for planning for incapacity and after death planning for contingent beneficiaries. If we return back to the family discussion the estate planning, an elder law attorney must be sensitive to the family dynamics. The adult children want to insure their parents are financially protected and properly taken care of. The parents are concerned with suddenly losing control.
It’s incumbent upon the attorney to advise that the two goals are not incompatible. That the establishment of advance planning does not lessen the deci-sion-maker’s authority but enhances it. Finally, the attorney advising this family should know all the community resources available. Such resources include services through the local Agency on Aging or Department of Human Services.
Elder law attorneys are collaborators. We work with other specialists such as care managers and financial planners. We know the lay of the land of the continuum of care community. Finally, and not least, there will be an inevitable discussion about public resources from Medicare to Social Security to retirement accounts.
Few of us have the resources to pay for long-term care services and therefore a discussion about Medicaid and its com-plicated eligibility rules is necessary. Estate and elder law planning are not just for the very rich or very sick. The issues in the above household are the same for all families regardless of financial means. The question is not who and when to make such plans but recognizing that the present time is the right time.
Edward E. Zetlin, Esq., specializes in senior care law, wills and estates, special needs law and related issues. Learn more about him at zetlinlaw.com.
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