What Are Good Moves For Estate Planning And Elder Law Planning? (Part Two)
Here’s a non-exclusive list of what clients, being advised by “new school” elder law attorneys, are now considering as advance planning possible solutions for both their future estate planning and elder law needs:
Basic will plans, with strong and expansive lifetime documents, such as a broad durable power of attorney, with gifting, Medicaid planning, and trust creation, modification, funding, and termination powers, designed to be used by a spouse, trusted child(ren), or trusted family friend (i.e., the “Consigliere”), to stand in their shoes and act expansively in the event of a future long term care/chronic illness crisis affecting the client.
1. Financial (annuities), health insurance (long term care policy), and life insurance coverage (permanent policies permitting aggressive use of accelerated death benefit in the event of a long term care/chronic illness event). These folks are putting their money where their mouth is to proactively position themself to be in a better that private pay, truly unprepared major future long term care cost crisis at the time of future need. Note that elder law attorneys work with professionals of their client’s choice, or even noted national experts, to fashion a custom solution in this type of approach, and one size definitely does not fit all!
2. Legal preplanning via irrevocable trust creation and funding, spend down strategies, family transfer strategies, conversion to Medicaid exempt, non-countable, and if possible non-recoverable investments, or a combination of the above and other solutions from item 2, above.
3. Spousal refusal planning if only one spouse has or is anticipated to have the long term care/chronic illness need, although this is more of a “Crisis Plan” technique at the time of need, versus a pre-planning strategy, and who knows who might be the victim of a stroke, heart attack, or other unexpected sudden illness or accident?
One challenge is the Deficit Reduction Act of 2005, which was actually enacted in early 2006, and which now has become fully operational in Florida. Candidly, we in the industry don’t have all the elder law tools today that we had in 2005. With state and federal budget constraints, you should expect to see more restrictions on Medicaid availability for long term care costs in the future.
The answer is not to hide your head in the sand or give up trying to plan ahead, although many have. The answer is to proactively begin the planning process with a qualified estate and elder plan planning attorney. In our scheme of things, we like to start with a group lunch and learn, or early evening informational seminar, to expose the prospective (or even the reviewing prior client) to the basic estate planning, post mortem family considerations, and long term care/chronic illness issues that they either will or are most likely to face during their life and in death. We then outline possible solutions, and follow up with a personal, client initiated private consultation to determine what their wishes and desires are, and in what directions should we proceed.
I’ve said it before and I’ll say it again, word processing and document assembly is not estate planning or elder law planning. It takes about 5 years of doing this to have a good handle on the various issues at play. It can take 10 to 20 to master this area. Experience and judgment count, so choose accordingly when you pick your attorney and counselor!
If you’ve done nothing, and you or your family member has a crisis, make seeing an experienced estate planning and elder law attorney your second appointment after the doctor’s examination. Crisis needs must be dealt with efficiently and immediately, with competent counsel. Don’t waste time or energy on the word on the street advice you’ll get from your buddies. Get professional advice from an attorney who is professionally required to know, care and implement, right then!
Don’t be a victim of one size fits all planning. Know your legal rights on estate planning and act accordingly!