What Does A Well-Developed Plan Look Like?
Be Proactive And Meet With My Office
The most important thing to do, to have a well-developed plan is to first, be proactive and come see an elder law lawyer right away, I am the right lawyer because I am an elder law lawyer based in New York who is well versed in elder law, Medicaid laws, nursing home issues and protecting assets.
This is by far the most important thing, as opposed to just going to see a general estate planning attorney who knows how to deal with death issues, but has no clue how Medicaid works, how elder law works, or how to protect assets if you become ill.
A person has to be proactive, meaning they should come to see me in a timely manner, hopefully five years in advance of ever needing any nursing home care. They should obviously come in when they have capacity; meaning they meet the legal requirements to understand and make the appropriate estate planning documents before they become ill or loss mental capabilities. That is why you should not wait to prepare a proper assets protection estate plan.
You Would Need To Have A Power Of Attorney And Healthcare Proxy
A client should make sure they have a power of attorney and a healthcare proxy. The power of attorney will put someone in place to make financial decisions and the health care proxy will put someone in charge to make medical decisions, if the person themselves becomes incapacitated. Incapacitation does not mean death, but rather a health or mental issues which causes them the ability to understand, think and make decisions.
The law mandates for people to have advanced directives in place, an agent under a power of attorney to handle banking and investment affairs and a health care proxy to handle medical affairs if they become incapacitated. The advance directives, the power of attorney and the health care proxy makes it possible to avoid having to go through a time consuming and expensive guardianship proceeding to have the authority to handle the affairs of an incapacitated individual.
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You Should Have A Medicaid Asset Protection Trust
If a person has estate assets, then depending on what those are, more or less anything other than an IRA or a 401(k), will need to be put into said trust including their home, specifically in regards to Medicaid planning. Those assets need to be in a Medicaid asset protection trust.
This means they will need to be re-titled. The trust will need to be created and then the assets need to be moved into that trust so they can be protected in the event the individual does need nursing home care and it can also avoid the delay and cost of probate.
The Five Year Clock Would Start Ticking From The Time the Assets Are Moved Into the Trust, Time is of the Essence.
This is why it is so important to be proactive and it is critical to have assets put and funded into the trust in order to get that five-year clock ticking. Those are the key ingredients in order to have a proper plan put in place.
To reiterate, the individual will obviously need to seek the advice of an elder law attorney like myself and needs to stay away from the basic general practitioners or estate planning lawyers. An elder law lawyer understands all these issues very well and can provide the legal representation they are looking for.
The next thing they need to do is just be very proactive. They should come in and do the elder care planning while they still have the capacity and five years in advance of ever needing any nursing home care.
It Is Important To Have A Living Will
A living will is a common law document which comes through case law and is recognized in the State of New York.
It is a good idea for people to think about having a living will drafted. The living will basically handles end of life decisions. For example, if a person did not want to have extraordinary measures taken if they are in an “irreversible state” where 2 doctors believe that the person would never come out of it and that the machines are the only thing keeping a person alive.
If the individual does not want to have those extraordinary measures to keep them alive, when there is no meaning of life, then it would be a good idea for them to have a living will put in place. The document will basically tell everyone very specifically that he or she does not want extraordinary measures taken to sustain life. It can be very specific and say that they don’t want a breathing machine and that they don’t want a feeding tube etc.
The two biggest reasons for an individual to have a living will put in place is because, an individual or a family member may feel very uneasy or uncomfortable if they are faced with having to pull the plug or make an end of life decision if there is no living will in place. As you can imagine if you were put into that position how uncomfortable you would feel having to make that choice.
If there is a living will in place, that person doesn’t have to feel guilt-ridden about ending life, because the decision was already made beforehand by that individual themselves and it has to be respected by everyone.
The other reason is if there are family members who are in disagreement in regards to end of life decisions because there is no living will in place. There might be potential problems and conflicts if one family member wants life support to continue whereas the other family members do not. If the living will is in place it would avoid this potential conflict and would have to be honored and respected.
For more information on How To Develop An Elder Law Plan, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (718) 475-9639 today. We provide legal representation in Manhattan, White Plains, Bronx, Long Island, Staten Island, Brooklyn, and Queens, NY. Our offices are located in Staten Island, New York, Brooklyn, Bronx, White Plains, Garden City, Melville, New York.
Get your questions answered - call me for your free phone consultation (718) 475-9639
