Long-term care planning answers the question, “What happens if I do NOT die and need long-term care?” It is a comprehensive evaluation of an individual’s legal and financial situation and creation of a plan, given that situation, to address current and future long-term care needs.
Pre-planning for long-term care begins with a review by a lawyer of an individual’s existing estate planning documents, including: wills; trusts; deeds and other title documents for real estate, accounts and other assets; beneficiary designations on accounts (such as retirement accounts, life insurance and annuities); powers of attorney; and advanced health care directives or similar documents such as living wills and durable powers of attorney for health care. In reviewing these documents, the lawyer should be asking whether and how the documents will work during the individual’s incapacity, rather than just what they do after the individual passes away. Often, the traditional estate planning documents must be modified or replaced to accomplish an individual’s long-term care goals. Some of the common long-term care planning legal documents include:
- Durable Powers of Attorney for Property Management and Personal Affairs
- Advance Health Care Directives
- Irrevocable Asset Protection Trusts
- Irrevocable Special Needs Trusts (also called Supplemental Needs Trusts)
- Irrevocable Income Only Trusts
- Irrevocable Life Insurance Trusts
- Testamentary Special Needs Trusts
- Gift Deeds with Reserved Life-Estates
- Personal Lifetime Rights of Occupancy
- Separate Revocable Living Trusts for the well spouse
- Wills with Testamentary Special Needs Trusts
The Elder Law lawyer will also do an evaluation of the individual’s potential eligibility for public benefits, such as Medi-Cal (Medicaid outside of California) and VA Aid & Attendance, as well as to purchase long-term care insurance.
Most individual’s goals in doing long-term care planning include:
- Naming an agent and providing instructions and authority for the agent to make health and personal care decisions for the individual in case he/she becomes incapacitated;
- Providing authority for someone to manage the property and handle financial affairs of an individual in case he/she becomes incapacitated;
- Ensuring the individual’s access to qualify long-term care services, preferably at-home for as long as possible;
- Reducing the emotional and financial stress on the individual and his/her family in the event the individual needs long-term care services, especially for an extended period of time;
- Providing for the individual’s access to public benefits and other governmental resources for long-term care services; and
- Preserving and protecting the individual’s assets (at least to the extent not needed for the individual’s care) for his/her spouse and children upon the individual’s death.
Pre-planning for long-term care is especially important for individuals over the age of 65 as there is about a 70 percent probability that such individuals will require long-term care services before they die. Of course, the older the individual gets, the higher the probability they will require care.
In pre-planning for long-term care, the lawyer helps the individual and the family to understand what are the:
- Long-term care options that are available in the area and what they cost;
- Public benefits that may be available to pay for the various types of care and the eligibility criteria for such benefits; and
- Likely consequences of failing to plan for long-term care before the individual loses capacity.
As part of long-term care planning, the Elder Law lawyer helps explain the coverage differences between Medicare and Medi-Cal or Medicaid and the appropriate use and limitations of financial products such as long-term care insurance and various annuities that are often sold to elders for the purpose of paying for long-term care or qualifying for VA benefits or Medi-Cal benefits. The Elder Law lawyer also helps individuals who find it painful to raise the subjects of long-term care and dying with their families or who do not wish to reveal their financial circumstances to their families. Finally, the Elder Law lawyer helps bring the peace of mind to individuals and their loved ones that comes from knowing that a plan is in place for their long-term care, should it be needed.
At Carney Elder Law, as Elder Law attorneys we specialize in planning for our clients who are concerned about the possibility that they someday may become incapacitated and/or need long-term care. We understand the complexity and anxiety that comes with the responsibility for the care and treatment of elderly or special needs loved ones. We know the problems faced by families caring for parents’ suffering from Alzheimer’s, Parkinson’s, Stroke and other disabling diseases and conditions and provide our clients with helpful information, resources, advice, and superior legal services.