Estate Planning

Essential Estate Planning

Everyone, no matter what age and circumstances, needs those traditional estate planning documents such as:

WILLS — Dictating who gets what when I die;

LIVING WILLS — Dictating when I don’t want to have a feeding tube; and

POWERS OF ATTORNEY — Appointing who can handle my check book and pay my bills when I can no longer do it myself.


But when we cross over that magical age of 50, our priorities do and should change. More than likely we no longer are as concerned about who will take care of and provide for our minor children, how will our debts will be paid, or who needs to inherit our real and personal property. One’s focus now becomes, will I outlive my assets in retirement, who will take care of me when I can no longer stay at home, and how can I make sure I am never a burden on my children?


While any attorney can likely provide traditional estate planning documents such as those listed above, only an experienced Elder Law attorney can provide the necessary planning for eventual disability. In fact, this is what sets the Elder Law Attorney apart from his peers. Very often those middle-aged and beyond tell me they have everything in order because they have a will and a power of attorney. But rarely have they had their estate planning documents reviewed since age 50, or had a competent Elder Law attorney review them and advise them on proper estate planning unique to Seniors.


. . . a word about trusts


Here is my personal rule of thumb: If you have no more than about $25,000.00 in assets, you can probably–not always–get by with a basic will. If you have assets greater than $25,000.00, you really should consider a trust. Why? There can be many advantages to trusts–more private, avoid probate, harder to contest, tax advantages, gifting with control advantages, and many others. There are two basic types of trusts: Revocable, which can be changed and terminated; and Irrevocable, which cannot be changed or terminated during the life of the creator. While there are hundreds of types of trusts, I usually recommend a Medicaid Asset Protection Trust in every estate where the client owns real estate, and a Revocable Living Trust to hold the remainder of the assets. Every estate is different and the needs and desires of every client differ, but if you have liquid assets and holdings of any value, you need to consider a trust in the mix.


The Absolute Necessity of an Advanced Planning Power of Attorney.


Every person over the age of 18 needs a power of attorney. Every Senior over 50 needs a Power of Attorney DRAFTED BY AN ELDER LAW ATTORNEY!!!!!! I can never emphasize this one enough. NO, that POA drafted by your general practice attorney, even if drafted last week, is NOT SUFFICIENT! Why? Proper planning for Seniors requires that the agent in the POA is able to implement proper long term care planning, deal with Medicaid and be able to do those things necessary for the Senior’s care. I have seen too many families pay out large sums unnecessarily for guardianships/ conservatorships because of insufficient powers of attorney obtained over the internet or drafted by non-Elder Law attorneys, who are highly qualified attorneys but do not understand the issues faced by Seniors with Medicaid planning.


If you have a power of attorney and you want to know if the drafting attorney is an Elder Law attorney, go to the website for the National Academy of Elder Law Attorneys at https://www.naela.org and do a search of the attorney’s name. If that attorney is not a member of NAELA he/she is not an Elder Law attorney, and chances are your POA is insufficient and probably ineffective to do advanced planning for Seniors. So please, call US today if your documents were NOT drafted by an Elder Law attorney within the last 5 years.


The Elder Lawyer goes beyond simple document preparation and performs actual asset protection planning, looking at how real estate is titled and how it can be re-titled to preserve those assets while planning for foreseeable disability and entitlement to public benefits. Important aspects that the Elder Law attorney must consider include: What assets, if any, can be gifted, or given away in advance; When would a Special Needs Trust be appropriate and why; What assets might be funded into an irrevocable asset protection trust and the advantages and disadvantages of those types of trusts. Also, the Elder Law attorney must determine what advance planning can be done NOW that will keep one out of institutional care for as long as possible, and if that is no longer possible, what housing is suitable, affordable and comfortable.


Please call us today at 229-292-8989 for a review of your Essential Estate Plan and how it can be made more beneficial.