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LIFE CARE PLANNING (Maintaining Control

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Title: LIFE CARE PLANNING (Maintaining Control


1
LIFE CARE PLANNING (Maintaining Control
Ensuring Protection)
  • Helena S. Mock, Esq.
  • The Peninsula Center
  • for Estate Planning and Elder Law

2
Helena S. Mock
  • Attorney at Law since 2000
  • B.A. in English, University of Maryland, Summa
    Cum Laude (1992)
  • M.A. in English Literature and English Education,
    Old Dominion University (1996)
  • Juris Doctorate, William Mary Law School
  • Accredited Attorney, Veterans Affairs
    Administration
  • Adjunct Professor, William Mary Law School
  • Member, National Academy of Elder Law Attorneys
  • Member, Peninsula Estate Planning Council

3
WHAT IS LIFE CARE PLANNING?
  • Also called Family Care Planning
  • Mission to assist the senior and his family
  • Be able to make legal, financial and health care
    decisions without government or court
    intervention
  • Find, get and pay for good long term care
  • Prolong the seniors stay at home
  • Protect the seniors quality of life
  • Preserve assets and ensure they pass as desired
    when no longer needed

4
THE COMPONENTS
  • Disability Planning
  • Asset and Health Care Management
  • Long Term Care Planning
  • Home care, Assisted Living, Nursing home care
  • Estate Planning
  • Estate tax
  • Probate
  • Protecting beneficiaries
  • 60-70 have no estate plan

5
THE GOALS
  • Successful transition from capacity to incapacity
  • Continuing asset management through disability
  • Making appropriate health care choices
  • Successful transition from home to long-term care
  • Where will you live what are your care needs
  • Having adequate funds to cover those needs
  • Successful transition from life to death
  • Appropriate arrangements for final resting place
  • Pass estate to those you choose
  • Pass estate at lowest possible cost with
    minimal inconvenience
  • Pass estate with greatest possible speed

6
THE TOOLS
  • Durable Power of Attorney
  • Medical Directive
  • Living Will
  • Guardianship/Conservatorship
  • Wills
  • Trusts
  • Long Term Care Planning Options
  • Government Benefits

7
DURABLE POWER OF ATTORNEY
  • What is it? A durable power of attorney (DPOA)
    gives another the authority to handle your legal
    and financial affairs.
  • Effective Now
  • Springing
  • Gives substantial power to your Agent. You must
    understand the power you are giving
  • Can be abused be careful in selecting Agent

8
DPOA POTENTIAL PROBLEMS / QUESTIONS TO ASK
  • Is it Durable?
  • Does it name Alternate Agent(s)?
  • How old is it?
  • Was it executed in Virginia?
  • Does it address all issues your Agent may face
  • Management of Retirement Plan Assets
  • Estate Tax Planning
  • Long-Term Care Planning
  • Obtaining Government Benefits

9
LIVING WILL MEDICAL POWER OF ATTORNEY
  • Living Will
  • Tells doctors not to use extraordinary measures
    if youre terminal only pain medication
    comfort care
  • NOT a DNR
  • Medical Power of Attorney
  • Names a person to make health care decisions for
    you when you cannot

10
IF YOU ALREADY HAVE A LIVING WILL AND/OR MEDICAL
POA
  • How old is it?
  • Was it executed in Virginia?
  • Does it address HIPAA?
  • Does it give your agent authority to make
    long-term care arrangements?
  • Does it provide a release of liability for
    medical providers?

11
GUARDIANSHIP CONSERVATORSHIP
  • Guardianship - Ability to make residential,
    medical, educational and employment decisions for
    someone else
  • Conservatorship - Ability to make financial
    decisions for someone else
  • May need one or the other or both

12
WHEN DO THEY APPLY?
  • If no Medical Power of Attorney or Medical
    Directive guardianship over incapacitated
    person
  • If no Durable Power of Attorney, or if its not
    complete conservatorship over incapacitated
    persons income and assets

13
THE GUARDIANSHIP / CONSERVATORSHIP PROCESS
  • Incapacitated person has no one to make medical
    or financial decisions for her
  • Results in legal determination of incompetency
  • Court will appoint person or organization to
    handle incompetent persons legal affairs and
    finances

14
THE CHALLENGES
  • Expensive and takes time to process
  • Guardian must thereafter report to Department of
    Social Services
  • Conservator must thereafter make financial report
    to court (called the Annual Accounting)
  • Annual surety bond usually
  • required for conservatorship

15
WILLS
  • What is it? A will directs
  • To whom you want your property distributed after
    your death (your Beneficiaries)
  • Who is responsible for settling your estate
    (Your Personal Representative)
  • You must be competent and under no undue
    influence or duress to make a will
  • After death, the will must be probated

16
WHAT IS PROBATE?
  • Probate is the process of administering estates
    in Virginia
  • Overseen by Commissioner of Accounts
  • Requires filing of periodic reports
  • Inventory
  • Annual Accounting
  • Fees and costs
  • Probate tax
  • Filing fees
  • 12-36 months (or longer)
  • Public Record
  • No immediate access to
  • funds

17
Multiple Probates
18
TRUSTS
  • A trust is An entity you create during your
    lifetime
  • It gives ownership of property transferred to the
    Trustee of the trust
  • The Trustee is required to manage and distribute
    the trust property according to the terms of the
    Trust Agreement
  • A trust may be revocable or irrevocable

19
PURPOSES OF A TRUST
  • Avoid probate and associated costs
  • Provide for ease of administration
  • Provide for a special needs or spendthrift
    beneficiary
  • Privacy
  • Asset protection for surviving spouse
    beneficiaries
  • Handle assets in other states
  • Disability planning
  • Estate tax planning for married couples
  • Government benefits planning

20
TYPES OF TRUSTS
  • Revocable vs. Irrevocable Trusts
  • Asset protection trusts
  • Special needs trusts
  • Gifting trusts
  • Life Insurance Trusts

21
IF YOU ALREADY HAVE A REVOCABLE TRUST
  • When was it created?
  • When was it last reviewed?
  • Has your situation (family, financial) changed
    since the Trust was created?
  • Does your trust reflect recent estate tax and
    Virginia law changes
  • IS IT FULLY FUNDED?

22
IF YOU ALREADY HAVE A REVOCABLE TRUST
  • Does it contain
  • Medicaid Trigger provisions?
  • Long term care provisions?
  • Trust Protector?

23
DO-IT-YOURSELF ESTATE PLANNING
  • NOT RECOMMENDED
  • Internet materials are not reliable
  • Do-it-yourself programs all contain a
    disclaimer/release of liability
  • There is no one-size-fits-all document

24
ONCE YOU HAVE YOUR PLAN IN PLACE
  • Where should you keep your documents
  • Safe deposit box
  • Fireproof safe in home
  • Freezer
  • How often should you review your documents
  • Every 3-5 years, or
  • If theres a change in circumstances death etc.

25
ONCE YOU HAVE YOUR PLAN IN PLACE
  • What your children need to know
  • Where your documents are
  • Who your advisors are
  • When should you talk with your children?
  • Parents dont want to discuss
  • Children dont want to discuss
  • Be proactive you dont want to have to think
    about these things when you need them you just
    want them to work

26
Putting the Final Pieces Together
Estate Plan
Durable Power of Attorney
Revocable Trust
Pour Over Will
Trust Funding
Health Care Documents
27
LONG TERM CARE PLANNINGCONCERNS
  • Want to leave an inheritance for the children
  • Want to stay at home for as long as possible
  • Do not want to be a burden for the children
  • Do not want to enter a nursing home

28
LONG TERM CARE PLANNINGMEANS OF PAYING
  • Medicare limited coverage of skilled nursing
    home care
  • Long Term Care Insurance
  • Private pay (estimate 6,500 per month)
  • Medicaid full coverage of long term assisted
    living and nursing home care expenses,
    prescriptions limited assistance with home
    health care costs

29
LONG TERM CARE PLANNINGINSURANCE
  • What is it? Insurance which typically can
    provide some / full payment toward home health
    care, assisted living care, and nursing home
    expenses
  • Where does it come from? True insurance,
    purchased as a stand-alone policy from insurance
    companies
  • What is it not? Not your Medicare supplement.

30
LONG TERM CARE PLANNINGINSURANCE
  • Decide before you shop about what your general
    policy needs are
  • Find a broker who can offer multiple policies
  • Set several policies side by side on the kitchen
    table
  • See your elder law attorney with questions
    regarding policies

31
LONG TERM CARE PLANNINGFOUR THINGS TO REMEMBER
  • Every plan must be tailored to the individual
    situation, needs and goals
  • See an elder law attorney when you become
    concerned, before the loved one enters nursing
    home
  • You dont have to be impoverished to qualify for
    Medicaid (if married)
  • Do not transfer assets to qualify for Medicaid
    (without knowing what you are doing or without
    seeing an elder law attorney)

32
PLANNING RECOMMENDATIONS
  • Everyone should plan for their own potential
    disability with
  • Durable Power of Attorney
  • Living Will / Medical Power of Attorney
  • Everyone should plan for their own death with
  • Living Will
  • Will
  • Trust
  • All should consider long term care planning
    options
  • All should maintain open communication with
    children about what you want

33
DISCLAIMER
This presentation is not intended as a substitute
for legal advice. It is for basic educational
purposes only and made with the understanding
that if you need legal advice, you will seek the
services of a competent Elder Law attorney.
While every precaution has been taken to make
this presentation accurate, we assume no
responsibility for errors or omissions, or for
damages resulting from the use of the information
presented.
34
THE PENINSULA CENTER For Estate Planning Elder
Law
Were here to help you.
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