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Estate Planning, Elder Law, What’s the Difference?

The short answer: Both share similar concerns. The longer answer? The differences make all the difference.

The Concerns are Similar

No matter what age we’re in, life can deliver some hard knocks. Hope for the best, but plan for the worst. We can get into accidents, especially when we’re young and under the impression that we’ll live forever. Whom would we like to be there for us if we can’t speak for ourselves? If we can’t pay the bills? Decide about our health care? 

Both estate planning and elder law attorneys help you choose people you trust to stand in your shoes when you can’t speak for yourself.

As adults, we start families and assemble worldly goods. If we’re thinking realistically, we want to make sure our families are taken care of and who gets our property if the worst happens to us.

Both estate planning and elder law attorneys help you with those questions. Both kinds of attorneys also know how to protect your estate from tax burdens and to avoid the expense and delay of court proceedings. 

The Differences Make All the Difference

Elder law expertise becomes crucial when we get older. We’re living longer, healthier lives – but nobody knows when we, or those whom we love, will get too sick to make decisions or to live independently. 

It’s understandable, but not wise, to postpone thinking about these things. Delay or denial can mean that entire savings get wiped out paying for nursing homes. Misconceptions about government benefits can forfeit eligibility for them. If you want to retire from your own business, do you have a plan for a smooth and profitable transition? What quality of life can you protect? What housing arrangements can be made? What is the wisest allocation of financial resources to protect against as many foreseeable contingencies as possible?

This is where we elder law attorneys come into our own. We can help you face these difficult questions with your and your families’ best interests at heart. What we know can go far to spare you the distress and anxiety if you were caught unprepared. We know how Medicaid, Medicare, and Social Security work. We can help you manage retirement income benefits. We can steer you to financial arrangements necessary if you or yours need long-term nursing care. 

These are difficult, complicated questions that require particular knowledge to answer. We elder law attorneys have studied long and hard for that knowledge. We have learned how to help you plan to enjoy the life you have, plan for when life becomes harder with age, and have something left over for your legacy.

Estate planning is only the beginning. 

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Balancing Caregiving and Your Career

Providing care for a senior family member, particularly long-term care, can bring about lost wages and missed opportunities a caregiver.  A report by Genworth entitled Beyond Dollars 2018 shows that although statistically having to miss work to provide care is down 7% from 2015, overall 70% of caregivers still report missing work because of caregiving responsibilities. While the percentage remains high, employers are better able and more likely to meet the needs of an employee who also routinely provides family caregiving services. The corporate shift to create flexibility and policy that addresses caregiver needs in the workplace will continue to increase as the baby boomer population ages.The change is welcome as, on average, caregivers spend 21 hours every week providing care.

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Genworth Beyond DollarsReport

Flexible work hour policies are having a positive effect as caregiver employees can transport their loved one to a daytime doctor appointment or other scheduled event. Some of the employee’s workload is being shifted to online work remotely from their home while other employers will allow a coworker to donate vacation or sick time to a caregiving employee. Julie Westermann of Genworth told McKnight’s Senior Living “Access to caregiver support or employee resource groups is another benefit. Also, counseling, coaching or wellness programs specific to supporting caregivers themselves and the financial and legal implications.” There are additional policies and benefits available for family caregiver support that include subsidized in-home back up care and emergency care, and other low-cost or free resources and services.

It is widely projected that 70% of all seniors will need long-term care during their lifetime. Increasingly that care is being provided in the home by family, and the ages of both parties involved are becoming younger. Genworth found that the average age of a care recipient in 2018 is 66. Comparatively in 2010 62% were older than 75. The age of caregivers has shifted from an average age of 53 in 2010 to an average age of 47 in 2018. Fully 58% of family caregivers are now in the 25 – 54 year age bracket.

As the need for senior caregiving increases, employers will have to continue increasing accommodations to employees who are also family caregivers. For career planning purposes a family caregiver should take full advantage of coaching and support programs that outline future financial and legal implications of caregiving as it relates to their employment. Mitigating negative circumstances before they present themselves is the goal. The sooner a realistic assessment of needs for the senior is handled the sooner a caregiver can put a plan in place to protect their livelihood and future retirement.

Employers understand the negative impact that absences, reduced hours and chronic tardiness have on productivity and the bottom line. A caregiver must strategize how best to cover the responsibilities that could put their career in jeopardy. Corporate policy changes and additional resources regarding employees who are also caregivers are helping make this situation mutually agreeable. The percentage of caregivers reporting negative impacts on their career due to caregiving is dropping. While this is a positive sign, there is a lot of groundwork to do to ensure caregivers have the opportunity to retain their job without undue financial loss or penalty.

Remember that most seniors or near seniors are in denial about their potential need for care and most caregivers sort of fall into their role after an adverse health event of a family loved one. A caregiver’s savings and retirements funds are put at risk when no planning is in place. Planning can help to reduce stress and negative impacts on future caregiver status as well as career success. 

If we can help answer questions about planning options available to you or a loved one, please don’t hesitate to reach out.

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Appropriate Documents For End-of-Life Care Decisions

You may think your living will is in order, including documents for end-of-life care decisions and instructions commonly referred to as a DNR (do not resuscitate). While your wishes in a Living Will may be appropriately documented, that does not guarantee the instructions will be carried out as you stated. The frightening truth is that mistakes about your end-of-life instructions are made while you are at your most vulnerable. Dr. Monica Williams-Murphy, medical director of advance-care planning and end-of-life education for Huntsville Hospital Health System in Alabama has said, “Unfortunately, misunderstandings involving documents meant to guide end-of-life decision-making are surprisingly common.”

The underlying problem is that doctors and nurses have little if any training at all in understanding and interpreting Living Wills, DNR orders, and Physician Orders for Life-Sustaining Treatment (POLST) forms. Couple the medical professionals’ lack of training with communication breakdowns in high-stress environments like a hospital emergency ward where life and death decisions are often made within minutes, and you have scenarios that can lead to disastrous consequences.

In some instances, mix-ups in end-of-life document interpretation have seen doctors resuscitate patients that do not wish to be. In other cases, medical personnel may not revive a patient when there is the instruction to do so resulting in their death. Still other cases of “near misses” occur where problems were identified and corrected before there was a chance to cause permanent harm.

There are some frightening worst-case scenarios, yet you are still better off with legal end-of-life documents than without them. It is imperative to understand the differences between them and at what point in your life you may change your choices based on your age or overall health. To understand all of the options available it’s important to meet with trusted counsel for document preparation and to review your documented decisions often as you age. In particular, have discussions with your physician and your appointed medical decision-maker about your end-of-life documents and reiterate what your expectations are. These discussions bring about an understanding of your choices before you may have an unforeseen adverse health event, and provides you the best advocates while you are unable to speak for yourself.

There are several documents that may be appropriate as part of your overall plan. Each of those are discussed below, and we are available to answer any questions you may have about them.

Documents For End-Of-Life Care Decisions

A Living Will is a document that allows you to express your wishes about your end-of-life care. For example, you can document whether you want to be given food and hydration to be kept comfortable, or whether you want to be kept alive by artificial means.

A Living Will is not a binding medical order and thus will allow medical staff to interpret the document based on the situation at hand. Input from your family and your designated Living Will appointee are also taken into account in your best decision-making strategy while you are incapacitated. A Living Will becomes activated when a person is terminally ill and unconscious or in a permanent vegetative state. Terminal illness is defined as an illness from which a person is not expected to recover even though they are receiving treatment. If your illness can be treated this would be regarded as a critical but not terminal illness and would not activate the terms of your Living Will.

Do not resuscitate orders (DNRs) are binding medical orders that are signed by a physician. This order has a specific application to cardiopulmonary resuscitation (CPR) and directs medical professionals to either administer chest compression techniques or not in the event you stop breathing or your heart stops beating. While your Living Will may express a preference regarding CPR, it is not the same thing as a DNR order. A DNR order is specifically for a person who has gone into cardiac arrest and has no application to other medical assistance such as mechanical ventilation, defibrillation, intubation, medical testing, intravenous antibiotic or other medical treatments. Unfortunately, many DNR orders are wrongly interpreted by medical professionals to mean not to treat at all.

Physician orders for life-sustaining treatment forms (POLST forms) are specific sets of medical orders for a seriously ill or frail patient who may not survive a year. This form must be signed by a physician, physician assistant or nurse practitioner to be legally binding. The form will vary from state to state and of the three instructive documents the POLST is the most detailed about a patient’s prognosis, goals, and values, as well as the potential benefits and risks various treatment options may bring about.

A power of attorney for health care decision, sometimes referred to as a health care directive, allows you to name an agent to make decisions for you if you are unable to. Unlike a living will which only covers end-of-life decisions, a power of attorney for health care decisions allows the agent to act at any time that you cannot make decisions for yourself.

We can help you determine which documents for end-of-life care decisions are best for your current needs, and help you clearly state your wishes in those documents. We look forward to hearing from you and helping you with these important planning steps.

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New Opportunities for Wartime Veterans

 

The Department of Veterans Affairs (VA) recently released new eligibility rules for the VA pension program. VA pension, a tax-free monthly cash benefit, is available to wartime Veterans who served at least 90 days of active duty service with one day during a declared period of war. Surviving spouses of wartime Veterans may also qualify for a monthly cash payment. Veterans or surviving spouses who need care on a regular basis are eligible for a higher payment (often referred to as “Aid and Attendance,” payments of which can be over $2,000 per month, depending on marital status and care needs.

With any pension claim, there are financial and medical requirements. The medical requirements are straightforward – a Veteran or surviving spouse must be 65 or older or permanently disabled to receive the lowest pension amount. If the Veteran or surviving spouse is blind or nearly so, a patient in a nursing home, or requires assistance with activities of daily living on a regular basis as prescribed by a physician, then it is possible to qualify for the highest amount – pension with an aid and attendance allowance. The money paid by the VA goes straight to the Veteran or surviving spouse to help pay for care. The VA doesn’t choose who provides the care – the Veteran or surviving spouse does. And often, it’s a family member who can be paid.

The financial requirements are a little more complicated. Before October 18, 2018, there was no clear rule about how much a wartime Veteran or surviving spouse could have before qualifying for VA pension. That is no longer the case! Now, a wartime Veteran or a surviving spouse can have up to $123,600 (increased annually), a home, car, and other personal effects and still qualify for a monthly cash payment.  Even if you have more than that there are legal ways to reduce total assets to qualify. However, if you give money away after October 18, 2018, you may have to wait months or years to qualify, so make sure you have solid legal advice before doing so.

There are also income limitations, however, income can be reduced by recurring out-of-pocket medical expenses. Certain requirements must be met before a medical expense can be deducted from income, but most expenses directly related to care will qualify.

The VA pension program can be a substantial financial benefit to wartime Veterans or surviving spouses of wartime Veterans. We help families determine whether a claim is possible, and how to qualify. Give us a call today so we can start helping you or a loved one.

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Points to Discuss with Your Aging Parent

Your parent is getting on in age, but you don’t have a clear idea if there is a plan in place for their care.  It is a difficult topic to broach; no one wants to talk about death and the financial realities that come with aging.  Instead of having a proactive conversation early in a parent’s aging process most families have a reactive discussion under high levels of stress and emotions while their parent is experiencing an adverse health event. The Public Broadcasting Service (PBS)has reported that 85 percent of time long-term care decisions are made during a medical crisis. The message is clear, be proactive and start discussing the important financial questions with your parent.

Prepare Yourself

Your parent will feel more comfortable and at ease if you have processed your feelings before talking to them.  Conduct research so that you are knowledgeable enough to present a clear and concise set of options for your parent.  Having options allows your parent and family to make decisions and feel in control of the process.  You are seeking progress, not perfection. It may not all become settled in one conversation, but the price of silence about your parent’s plan may be very costly to you.

Review Documents

Two of the most critical personal legal documents are a durable power of attorney (DPOA) and a healthcare proxy. All older adults should have these documents as it gives legal authority to a designated representative to make financial, legal, and health care decisions on your parent’s behalf. If your parent does not have a DPOA and becomes incapacitated, you will have to go to court to get appointed as your parent’s guardian which can be a complicated legal process at a time when your energy is better spent in the care and decision making for your parent. If they do not have a DPOA and health care proxy in place make arrangements for them to meet with a trusted elder law attorney to properly draft the legal documents.

Often a parent will have a will, retirement account information and insurance policies that have not been revisited or updated in years, sometimes decades. When was the last time your parent reviewed beneficiary designations? Family circumstances change, and the birth of a child, death or divorce can affect how your parent may want beneficiaries designated. It is best to review financial and insurance data annually with your parent and make adjustments if necessary. For example, if the parent’s children are grown, it might be best to cut back on the amount of life insurance they carry to save money on annual premiums.

Long-Term Care Plan

Address the issue of long-term care. According to the PBS, a full 70 percent of all seniors will need some long-term care as they age. Even if your parent is healthy today odds are they will require long-term care and the costs are staggering. Some life insurance companies will add a long-term care rider to an existing policy. Medicaid also can cover some long-term care costs, but neither standard health insurance nor Medicare will cover your parent’s long-term care expenses.

Meet the Team

Ask your parent about their financial advisors and request a brief introduction to them.  Find out who they are and how you might contact them in the event your parent is unable to do so. This information will allow you to keep an eye on your parent’s accounts and be confident the advisors are trusted, objective and well versed in elder financial issues. Oversight by you in a slightly detached way provides your parent privacy and independence about their finances but allows you to protect them from unscrupulous advisors.

The last thing you need to discuss is where this vital information is filed so that before a crisis hits you know where to find the important documents, online passwords, and forms of ID you will need to facilitate your parents well being. While you do not have to see all the specific contents of the information, particularly the financials, knowing where they keep the data is critical in a crisis. Remember that as your parent ages they may start to change the location of the information. Check with them a couple of times a year to ensure the information is still in the same place and physically look to be sure it is.

Discussing your parent’s strategy is best begun while they are healthy.  Proactive planning is the best way to help your family as your parents’ age.  Contact our office today and schedule an appointment to discuss how we can help you and your family.