Elder law is a specialized field that addresses the unique legal needs of seniors and their families. It focuses on asset protection and planning for future long term care and Medicaid benefits.
Long term care is expensive and, unless you’re wealthy enough to afford a private pay plan, you may need public assistance like Medicaid. Experienced long term care attorneys can help you plan for this possibility.
1. Asset Protection
Asset protection refers to techniques and strategies used in safeguarding assets from financial litigation, lawsuits, judgments, and creditors. It may involve transferring legal title of property into another entity like a trust or an offshore corporation. If done correctly, these entities can shield the personal assets of a person or business.
However, a person who tries to shield property by transferring it to an entity without the proper structure runs the risk of creditor claims. Also, a court may not respect transfers of property that render the transferor insolvent.
Estate planning is the process of establishing an order of how a person wishes to be cared for and their belongings distributed after death or incapacitation. It can include a durable power of attorney to designate someone to make health and financial decisions on your behalf. This can avoid the costly, time-consuming and uncertain guardianship process through which a court will appoint a conservator. It can also include a living trust to avoid lengthy probate proceedings. Creating these documents can help a person protect their assets from the costs of long term care.
2. Medicaid Planning
Long-term care can be very expensive, and you may require the assistance of Medicaid to pay for your nursing home expenses. However, there are strict income and asset limits governing Medicaid eligibility. A qualified attorney can help you structure your assets and savings so that you do not exceed these eligibility limits.
A skilled attorney can use strategies like transferring assets into irrevocable trusts that are not counted as part of your estate for Medicaid purposes. This allows you to retain control over the assets while still qualifying for Medicaid, preserving your life savings and leaving a legacy to your loved ones.
Another important strategy involves converting assets into an income stream by purchasing an immediate annuity. This can help meet Medicaid’s financial requirements while also protecting other assets like your home. An experienced attorney can help you navigate the complicated rules involving Medicaid and other state long term care programs. They can also cut through the red tape and bureaucracy involved in applying for Medicaid. This includes ensuring that you are completely truthful in your application to avoid costly fraud penalties.
3. Health Care Decision Making
Having the right documents in place is important for making sure your medical decisions are carried out when you cannot make them yourself. You can name someone to act on your behalf as a health care agent by completing a document called a health care proxy. You can also include specific health care instructions.
A healthcare directive can be very empowering for you and your family members. It is a way for you to express your specific preferences in terms of medical treatment, such as whether you want life-sustaining care or not, and it will be binding on your physicians if you are unable to make the decision yourself.
There are a number of Massachusetts and national organizations that promote advance care planning. They offer tools and resources to help people talk about their preferences with their families, including the Conversation Project and others. Many long term care facilities are required to provide a comprehensive plan of care for each resident, and failing to do so can result in lawsuits like this one. An experienced attorney can assist with these lawsuits by assisting in finding more appropriate care, or by holding the facility liable for wrongful actions.
4. Estate Planning
Long-term care attorneys can provide a broad range of estate planning services, including developing a plan to protect assets through traditional estate planning functions while helping seniors qualify for government benefits like Medicaid and Veterans Aid to avoid spending their entire life savings on care. This includes assessing and discussing their client’s current financial situation, care goals and needs in the future to develop an estate plan that is appropriate for them.
This plan will likely include a will that dictates how an individual’s assets should be managed and distributed upon death or incapacitation. It will also involve listing their debts, such as mortgages and credit card balances, as well as their beneficiaries and heirs. There are a number of strategies available to limit estate taxes, including the creation of trusts and charitable donations.
An estate plan should also include health care directives, such as living wills or a power of attorney that provides an agent with specific decision-making authority or for a specified period of time. It should also address the guardianship of minor children and pets.