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Elder Law Planning Checklist

June 24, 2021 General

As we grow older, and hopefully wiser, we must make important decisions impacting not only our own legal, medical, and financial well-being, but also the well-being of our families.  Planning for management of your health and financial affairs when you can no longer do so yourself, and setting forth the disposition of your assets and control over your estate when you have passed away, are absolutely necessary.  In addition, planning for the possibility of the need for assistance or supervision with normal activities of daily living (including in-home care, assisted living facilities, nursing homes, Medicaid and long term care insurance), is critical.

            Planning for management of your health affairs when you can no longer do so yourself generally includes the following:

  • Appointment of a Health Care Representative – This is the individual or individuals that will have authority to make medical decisions for you when you are unable to do so yourself. This individual also enforces certain advance directives you may set forth as to end of life decisions.
  • Living Will – This document allows you to set forth what your specific wishes are in a variety of medical situations, including terminal illness, persistent vegetative state, dementia, Alzheimer’s disease and so forth.
  • Designation of Conservator of the Person – In case of the involvement of a Court in your medical affairs, you can specify who the Court must appoint to act on your behalf.
  • HIPAA Release – This document allows for designated individuals to talk to your doctors and receive medical information on your behalf.
  • Donation of Organs or Body – You can specify your wishes as to donation of your organs, or even your entire body, for medical science and learning, and transplant purposes.

Planning for management of your financial affairs when you can no longer do so yourself generally includes the following:

  • Durable Power of Attorney – There are numerous types of powers of attorney, but in most cases you will want a durable document (that is still valid after you become incapacitated), with provisions that allow for certain Medicaid and Tax planning when appropriate. It is important to understand that your power of attorney terminates upon your death which is why a Will is so important.
  • Designation of Conservator of the Estate – In case of the involvement of a Court in your financial affairs, this specifies who the Court must appoint on your behalf.
  • Revocable Trust Agreements – This tool is sometimes used to provide for management of assets during your lifetime and avoidance of probate after you pass away.

Planning for management of your assets after you pass away generally includes the following:

  • Last Will and Testament – This is the traditional tool used to designate an Executor to oversee your affairs after your death and to set forth who is to receive your assets. You can also set forth in your Will or a separate directive as to your specific Funeral Wishes and who has authority over your funeral arrangements.
  • Revocable Trust Agreement – This estate planning tool is often used for probate avoidance (especially for those who own real estate in multiple states) and confidentiality of personal information (to avoid disclosing your financial details, which otherwise takes place in a probate proceeding). Either a Will or Revocable Trust can contain estate tax planning, special needs trusts, and asset protection trusts for beneficiaries.
  • Irrevocable Lifetime Trusts – This tool is often used for estate tax savings, asset protection, income tax savings, and many other objectives.
  • All of the above planning may also involve structuring assets in a specific manner, designating certain beneficiaries of retirement accounts and life insurance policies, and lifetime asset transfers.

In addition to the above, planning for the possibility of the need for assistance or supervision with normal activities of daily living (sometimes called Medicaid planning or Elder Law planning) generally involves the following:

  • Long Term Care Insurance – Evaluating the availability and cost, as well as the potential coverage, is appropriate in every situation, even if ultimately it is decided to not obtain coverage. Consideration should also be given to “Connecticut Partnership” policies, which provide for dollar for dollar protection of assets if Medicaid becomes necessary.  A more recent trend is utilizing a Life Insurance Policy with a Long Term Care Insurance Rider, which allows for an investment of a specified amount which is leveraged for a multiple of coverage benefits.
  • Irrevocable Medicaid Trusts – In some cases, it is appropriate to transfer a home or certain other assets into specialized trusts to shelter the home or assets in the case of later need for Medicaid coverage. You can retain the use of the home during your lifetime without the obligation to pay rent, retain the capital gains exclusion upon a later lifetime sale of the home, continue to pay and deduct your real estate taxes and qualify for certain tax abatements, and provide for the possibility of the acquisition of a replacement home.
  • Evaluation of Assets and Income – For some individuals, their assets or income allow them to “self-insure”, such that they are fortunate enough to pay for their long term care expenses without depleting their assets.

It is also important to detail all of your important information (asset information, account usernames and passwords, advisors’ contact information, etc.), and to regularly update this information every year.  Of course, you will need to make sure that your decision-makers can access this information in appropriate circumstances.  The above is not an exhaustive list of all options and steps that may be appropriate, but serves to touch upon the most likely matters applicable to the majority of individuals.  If you have any questions or wish to discuss your specific matter, please contact me at (860) 659-0700.