If you are an adult child, you may find yourself sandwiched between either/and elderly, declining parents and siblings or off-spring who may have special needs.  In the US alone, there are approximately 65 million persons who are caregivers for elderly parents, disabled siblings or children.  Careful and deliberative Elder care and Estate Planning can assist with funding, providing necessary services and ultimately transferring assets for the benefit of persons who might not have the cognitive ability to manage those assets.

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First Steps: Assess Capacity 

1.  Remembering that autonomy and self-determination are important values assess a preliminary level of capacity. 

2.  Is the incapacity a result of ageing or a mental condition such as dementia or Alzheimer's disease? 

3.  Understanding that there are varying degrees of capacity leading to the ability to make decisions depending on the legal importance of those matters, is the elder placing themselves in physical or financial danger as a result of those poor decisions?  

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Second Step:  Ensure the Physical safety of the Elder 

 

Third Step:  Review Legal documents currently in place for the Elder

1.  What documents are in place and who are the persons nominated as fiduciaries? 

2.  Were the documents properly executed?  Signed, notarized and if necessary witnessed?

3.  In the document what is the requirement for a Power of Attorney, Fiduciary or Proxy to be able to make decisions?  Does the principal need to have an incapacity determination made by a physician or two medical professionals before an agent can step in?  

4.  Does the principal have sufficient capacity to sign new documents if necessary? 

5.  Will there be family conflict if the documents are updated? 

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Fourth Step:  Assess Financial assets

1.  How are assets currently titled? 

2.  Can a Fiduciary have access to assets legally? 

3.  Are assets held jointly with a person other than a spouse? 

4.  Is there family conflict over the spending of assets for care or for other activities? 

5.  Are there valid beneficiary designations for distribution after death on assets? 

 

​Once you have gone through all the above steps, then you are ready to work with an Estate Planning Attorney, Elder Law attorney or Elder Mediator to get a valid eldercare plan in place that should include legal and financial documents.  ​

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ELDER LAW and Estate Planning FAQS:

• If I need long-term care, what are my options? Long-term care can be delivered at home, in assisted living or in a nursing home, depending on the level of care needed. There are also continuing care retirement communities (CCRCs) which provide a continuum of care. At a CCRC, you are able to enter the community when you need a lower level of care and then move to a different part of the community as your care needs change. Many CCRCs require a significant advance deposit prior to admission. An attorney can review the admissions agreement for you to protect your and your family’s interests.

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• Does Medicare cover the cost of long-term care? No. Medicare covers short-term (30 days) rehabilitation but does not cover care at home or in a nursing home. Medicare will cover acute illnesses such as heart surgery or strokes, but not chronic illnesses such as Alzheimer’s disease or Parkinson’s disease. If you meet strict requirements, you may receive up to 100 days of Medicare coverage for skilled nursing care in a nursing home; however, there are significant co-payments that will be due. 

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• What is long-term care insurance? Long-term care insurance is designed to cover the cost of long-term care if you need it in the future. In order to purchase a long-term care insurance policy you must go through the underwriting process of the insurance company. Depending on the type of policy your purchase, you will be required to pay premiums for the rest of your life or for a certain period of years. In exchange for the payment of premiums, the insurance company will cover you, up to the policy limits, for the cost of your long-term care, if necessary. In light of the fact that Medicare does not cover long-term care, long-term care insurance should be considered as part of your overall estate planning.

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• How much does long-term care cost? Long-term care is expensive, whether delivered at home, in assisted living or nursing home. Costs vary by geographic region. In some of the major metropolitan areas of the United States, costs can exceed $200,000 per year. These catastrophic costs can bankrupt most middle class families if they don’t plan in advance. An attorney can explain the various options available and help guide you through the long-term care maize so that your family does not go broke paying for long-term care.

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• How do I pay for long term care? Basically, there are four ways to pay for long-term care:

1. Private pay, which can cost more than $200,000 per year in some areas,

2. Medicare, which only covers short-term rehabilitation for skilled nursing care and does not cover custodial,

3. longterm care, long-term care insurance, which must be purchased while you are healthy, and

4. Medicaid, which is the only government program that pays for long-term care.

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• How can I qualify for Medicaid?  Medicaid was intended to be for people who are destitute. In fact, to qualify by the 2024 guidelines, you must have less than $2700 in personal assets, excluding the value of your home.  Most people are disqualified simply because of the amount they are eligible to receive in social security benefits. This presents middle class folks who have a loved one with a chronic illness with a tough choice: impoverish yourself and your family, or engage in Medicaid planning.  

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• What is a 'clawback'? The  government has imposed stringent rules penalizing transfers of your assets prior to entering a nursing home. You may be disqualified from receiving Medicaid if you have made asset transfers during the five-year look back period prior to applying for Medicaid. An attorney can explain the Medicaid lookback and penalty period rules to you so that inappropriate, disqualifying transfers are not made.​

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• When should I engage in elder law planning? The sooner, the better. We never know when illness or incapacity resulting from an accident will strike. While many of us think of nursing home residents as people who are elderly, a significant number of people who need long-term care are middle age or younger. Thus, it is never too early to plan.