The month of May is not only the month to celebrate Cinco de Mayo but also our seniors during Elder Law Month.? Elder law involves the representation of elderly individuals and their families regarding various legal issues that seniors may encounter such as how to pay for long term care in assisted living or a nursing home, capacity issues, basic estate planning, asset protection and preservation, public benefits (such as Medicaid and VA benefits) and special needs trusts.? If you live in states that cater to the retired or elderly population, such as Arizona and Florida, and you are handling estate planning issues, you would do your clients a disservice by not being well-versed in Medicaid, VA benefits and long term care planning.?
Estate planners need to understand that Medicaid is a middle class program ? it is not a program for the wealthy because the wealthy will never use it, nor is it a program for the poor because they automatically qualify.? People with less than $1 million (yes, that is ?middle class?) can expect to have to navigate the Medicaid program if they are spending $90,000 each year on long term care.? It does not take long for someone to burn through their savings.? Our clients are living longer and their problems in the future will not center around estate tax issues, but rather, how to care for their long term needs.? Estate planning that has not been updated in a while can jeopardize Medicaid planning and protection of assets.
So what are the top 5 things that estate planners need to know about Elder Law in order to avoid issues with your malpractice carrier?
- Estate tax issues affect less and less people, but planning is still needed ? it is just a different type of planning.? For instance, a ?standard? durable power of attorney is not going to fit everyone.? For elderly clients, the DPOA needs to have language that allows the agent to do specific types of Medicaid planning, such as entering into a personal services contract or create a qualified income trust on behalf of the principal.
- Clients may have some general knowledge about elder law issues, but many times are not sure what to ask.? As an estate planner, it is your duty to be knowledgeable and to ask the client the right questions in order to provide them with accurate advice that is relevant to their situation.
- Not all estate planners are elder law attorneys, but they should be if they are dealing with clients over the age of 65 who have less than $1 million in assets.? Estate planning attorneys need to be up-to-date about estate planning and elder law issues that could affect their clients (or refer the client to an elder law attorney who can handle the long term care issues).
- Out-of-date documents such as DPOA?s or advance directives can be a major problem if the client becomes incapacitated and does not have their long term care planning in order.
- Clients assume you are the expert and you will advise them on ALL issues that are relevant to their estate planning situation ? when the children come back to you and say, ?When Mom and Dad asked you about gifting assets, why didn?t you tell them they would may have issues qualifying for Medicaid?? you cannot simply tell them, ?Oh, sorry, that isn?t my area of practice.?
As we celebrate our senior friends and family this May, it is also a great time to learn more about legal issues affecting the elderly.
About the author:
Laurie E. Ohall?is the principal of Laurie E. Ohall Law Offices, where she practices in the areas of estate planning, elder law (including asset protection and Medicaid planning), wills, trusts and probate. Ms. Ohall has lectured for the Institute for Paralegal Education on estate planning and probate issues, and for the National Business Institute on asset protection. She is a member of the Brandon County and Ohio State bar associations, The Florida Bar (member, Real Property, Probate and Trust Law Section), the National Academy of Elder Law Attorneys, and the Academy of Florida Elder Law Attorneys. Ms. Ohall earned her B.A. degree and her J.D. degree from Stetson University.
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