In a prior post, I discussed the necessary documents for a client. There are several additional points, particularly with respect to joint holders of a power of attorney and joint holders of a living will that I think should be addressed.
Therefore, I will review the prior post with these topics indicated. There are several basic documents that I discuss with every older client whom I represent. However, many of these ideas also apply to younger individuals.
The basic documents for every person, particularly the elderly, are a will, a living will and a power of attorney.
A will is a document that directs how the assets in the name of the individual shall pass upon their death. The nature of the will depends upon the person's situation. For example, the purpose of the will might be to minimize death taxes, which can involve complicated estate planning. Or, the will might be that of a healthy spouse whose partner is in a nursing home, which has rather complicated considerations also.
However, one must keep in mind that a will is not the only document that disposes of assets upon an individual's death. Assets that pass under a will are known as probate assets and those that pass outside of a will are known as non-probate assets. Non-probate assets are those that may pass by beneficiary designation, such as life insurance, retirement plans or annuities. The beneficiary designations of such non-probate assets should be coordinated with the plan under the will.
It is my practice not to dictate to a client the terms of a will. I point out the alternatives, discuss advantages and disadvantages of different approaches, review the assets with the client and let the individual decide what is the best course to follow from a personal point of view. That is, in addition to the objective legal reasons for a will, it is the client's subjective intent (after understanding all possibilities) that should govern the overall estate plan.
It must be kept in mind that a will performs two functions. One is to dispose of one's assets in the appropriate manner. A will is also a legacy. That is, an individual often feels that his or her child has not met expectations and desires to "disinherit" such child. I point out to the individual that such language will be the individual's "legacy" and must be carefully considered before undertaken.
With respect to a power of attorney, the first point of significance is that the document must be "durable". That is, at law, a power of attorney is a consensual agreement by the person granting the power (the principal) and the individual given the power (agent). If an individual becomes incompetent, the ability to consent ceases. Therefore, it is necessary that the power of attorney be "durable" and, therefore, survives the incompetence of the principal. That is, for an elderly person, there is a need for someone to act on one's behalf if such individual becomes incompetent.
There is a form of power of attorney known as a "springing" power of attorney, which becomes effective only if a person is incompetent. I do not recommend such a power since a durable power of attorney avoids the issue of incompetence and a springing power of attorney would only be effective if an individual becomes incompetent. Therefore, the "springing" power of attorney has no benefit.
The key to a power of attorney is that it has language so that all assets of the principal are "accessible" to the agent. In this way, if the principal needs money for any reason, including a nursing home, and is not competent, the agent can "access" these funds.
Also, a power of attorney should have special language, such as the ability to access medical records if the principal (who generally is an elderly person) is unable to do so. The durable language allows this result. Also, a power of attorney should include planning language to cover a situation in which a person may enter a nursing home in the future. The language dealing with Medicaid planning depends upon the situation of the principal and will be discussed more fully in another blog.
Very often a parent will name two children as joint holders of a power of attorney so as to avoid family friction. I think this approach requires careful review, since if the children differ on the power of attorney and one acts on his or her own, such actions might violate the thoughts of the other holder. Even worse would be to name joint holders of a power of attorney who must act together. This could create a non-agreement and possibly court approval, which a power of attorney is to avoid.
It is my practice to reference any type of asset an applicant may have to make sure the power of attorney can be used to liquidate such asset. However, not all companies will require that the power of attorney have language relating to the specific asset. It is important that the power of attorney be done as soon as possible, particularly if the individual is failing. A power of attorney can only be done if the individual is competent.
A living will is a document which provides as to whether extraordinary methods be taken in case an individual cannot make the decision by himself or herself. There are several types of living wills. One form known as an "Appointment of Health Care Representative" gives the individual appointed under a living will the general authority to carry out the wishes of an individual based upon the individual's intent as conveyed to the appointee during lifetime. A second type of living will known as an "Advance Directive for Health Care" sets forth the desires for the individual in advance. For example, this document provides that treatment be withheld if it is "experimental". Such language creates an ambiguity as the definition of "experimental" can vary from medical institution to medical institution. Therefore, it is my recommendation that if an elderly person has someone that he or she trusts, the general grant of authority under the Appointment of Health Care Representative is preferable.
It is necessary that an individual appointing a holder of a living will not name two holders either severally or jointly. Decisions regarding a living will often must be instantaneous. Having joint and several holders or joint holders together could create a conflict situation and ruin the simplicity of the living will. Therefore, holders of a living will must be named successively.
As can be seen, pro-forma language is not suitable for any of the documents discussed, and must be discussed individually in detail. That is, the client makes the final decision with respect to the format of each document, after being fully informed.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 168
Monday, October 24, 2011
Monday, October 17, 2011
Approach of Elder Law Attorneys in Dealing with Clients
Elder law is unique in that the state often disregards the federal rules. In this regard, various blogs have discussed the violation of federal pre-emption. For example, the state's position on spousal refusal, disinheritance of a spouse being treated as a transfer and the requirement that all trusts have the state as the remainderman, all clearly violate the federal statute.
Therefore, the elder law attorney is often presented with the conundrum of the approach to take in advising a client. My particular thinking is that the attorney should not be dictatorial, but should point out the federal law, the state law and even the variants from counties to counties.
For example, I have discussed in numerous blogs the exemption of the transfer of the home to a child who provided care for the parent for two years prior to the nursing home admission as being an excludable transfer. I have also pointed out in one example a situation in which a child does not live in the home, but is willing to. I pointed out the possibility of the child moving into the home in the hope that the parent not go into the nursing home for two years, so that the two year rule should apply. Whether this advice should be given mandatorily or optionally, is obvious. This is just an example of a possible situation in which the client should decide after the attorney advises of the possibilities.
We have also discussed caretaker agreements in which the state has determined that the compensation to the child should be "reasonable". The state refuses to define reasonable. Therefore, in doing a caretaker agreement you must advise the client that the state's position might be unconstitutional and violate due process, as the word "reasonable" is not sufficient to provide adequate notice of the amount of compensation.
Another example of an uncertainty is whether an individual constitutes a dependent relative. We have discussed the fact that a dependent relative residing in the home renders the house an exempt resource. It is not the attorney's decision to decide whether a relative is dependent, but it is the attorney's role to bolster the status of dependency, the various factors for which are set forth in Post 14.
Therefore, it is my opinion that an elder law attorney should never dictate to a client what path to take, but rather should point out the law, the uncertainties of the situation and what the client subjectively is willing to undertake.
Further, in your correspondence to your client, you should set forth a memo as to the plan, the issues presented and the fact that you can never guarantee results because of the uncertain status of New Jersey law.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 167
Therefore, the elder law attorney is often presented with the conundrum of the approach to take in advising a client. My particular thinking is that the attorney should not be dictatorial, but should point out the federal law, the state law and even the variants from counties to counties.
For example, I have discussed in numerous blogs the exemption of the transfer of the home to a child who provided care for the parent for two years prior to the nursing home admission as being an excludable transfer. I have also pointed out in one example a situation in which a child does not live in the home, but is willing to. I pointed out the possibility of the child moving into the home in the hope that the parent not go into the nursing home for two years, so that the two year rule should apply. Whether this advice should be given mandatorily or optionally, is obvious. This is just an example of a possible situation in which the client should decide after the attorney advises of the possibilities.
We have also discussed caretaker agreements in which the state has determined that the compensation to the child should be "reasonable". The state refuses to define reasonable. Therefore, in doing a caretaker agreement you must advise the client that the state's position might be unconstitutional and violate due process, as the word "reasonable" is not sufficient to provide adequate notice of the amount of compensation.
Another example of an uncertainty is whether an individual constitutes a dependent relative. We have discussed the fact that a dependent relative residing in the home renders the house an exempt resource. It is not the attorney's decision to decide whether a relative is dependent, but it is the attorney's role to bolster the status of dependency, the various factors for which are set forth in Post 14.
Therefore, it is my opinion that an elder law attorney should never dictate to a client what path to take, but rather should point out the law, the uncertainties of the situation and what the client subjectively is willing to undertake.
Further, in your correspondence to your client, you should set forth a memo as to the plan, the issues presented and the fact that you can never guarantee results because of the uncertain status of New Jersey law.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 167
Tuesday, October 11, 2011
Marketing for the Elder Law Attorney
Every elder law attorney has his or her own method or methods of marketing. Websites, blogs, articles and speaking are the typical techniques.
I have found it particularly helpful to have a marketing expert to craft my website so as to convey the nature of my practice. I have personally utilized the talents of Daniel Rudy (daniel.rudy1@gmail.com) in developing my website. Mr. Rudy has advised me that it is important in developing a website to convey the nature of your practice and what your firm has to offer. There are many marketing experts who provide such activities.
With respect to lecturing as a marketing technique, it is necessary to present topics of interest. Personally, I am undertaking my fifth webinar in the last two years, which is entitled: "Constitutional Aspects of Elder Law and Guardianship". Past webinars have been entitled: "Medicaid Planning Essentials: What You Need to Know", "Practical Medicaid Planning Revisited" and "Ethical Dilemmas for Elder Law Practitioners". Of course, public speaking is the best venue. I have had the pleasure of speaking at numerous ICLE programs with Janice Chapin, Esq. of North West New Jersey Legal Services.
In addition, on my website, I exhibit one blog a week on a topic that I think is pertinent to the elder law attorney.
Perhaps most important, is to point out the uncertainty of conclusions in the elder law area. This is a topic I will be discussing at my next webinar.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 166
I have found it particularly helpful to have a marketing expert to craft my website so as to convey the nature of my practice. I have personally utilized the talents of Daniel Rudy (daniel.rudy1@gmail.com) in developing my website. Mr. Rudy has advised me that it is important in developing a website to convey the nature of your practice and what your firm has to offer. There are many marketing experts who provide such activities.
With respect to lecturing as a marketing technique, it is necessary to present topics of interest. Personally, I am undertaking my fifth webinar in the last two years, which is entitled: "Constitutional Aspects of Elder Law and Guardianship". Past webinars have been entitled: "Medicaid Planning Essentials: What You Need to Know", "Practical Medicaid Planning Revisited" and "Ethical Dilemmas for Elder Law Practitioners". Of course, public speaking is the best venue. I have had the pleasure of speaking at numerous ICLE programs with Janice Chapin, Esq. of North West New Jersey Legal Services.
In addition, on my website, I exhibit one blog a week on a topic that I think is pertinent to the elder law attorney.
Perhaps most important, is to point out the uncertainty of conclusions in the elder law area. This is a topic I will be discussing at my next webinar.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 166
Monday, October 3, 2011
Review of the Need for Other Professionals
It has been stated, and I agree, that it is an obligation of an attorney to advise a client of long-term care insurance before undertaking transfers for any reason. There are many long-term care insurance experts and it is an attorney's obligation to recommend an individual who in the attorney's judgment is most knowledgeable in the area.
I have also discussed the need for a geriatric care manager. Such person is necessary to advise the attorney of the proper facility that an individual should live in. That is, the most basic doctrine of elder law is that a person should live in the least restrictive environment. Therefore, whether the home, an independent living facility, an assisted living facility or a nursing home is most appropriate, is a decision that should be made by a geriatric care manager.
I have discussed the need for an accountant to prepare an individual's tax return, the payment of such tax being part of the spenddown process.
An attorney should have colleagues with whom the attorney consults in light of the confusion of the New Jersey Medicaid law. Particularly, an attorney should have a relationship with legal services, who often are aware of the benefits available.
A disabled child has special status under the Medicaid law. Often, such individual will not have qualified for social security benefits. The state will make its own determination if sufficient information is provided.
It has been discussed in Post 103, that once Medicaid planning is undertaken, financial planning or estate planning is no longer relevant. Therefore, it is necessary to have a relationship with a broker, who would be available to liquidate the individual's stocks or retirement plans.
Also, an attorney should consult with someone regarding Medicare and supplemental benefits. An individual in a nursing home, may require medical treatment, and the cost of the Medigap are covered by Medicaid as discussed in Post 1.
A relationship with administrators of various nursing homes would be advantageous, particularly if you require immediate placement in a nursing home. Such relationship is also advantageous in light of the fact that admission agreements also often have unenforceable contracts, such as a third party guarantee. Convincing the nursing home to eliminate such requirement although required by law (both state and federal), is a difficult task.
Finally, I think it would be helpful if an attorney has experience with a Medicaid supervisor in each of the counties in which he or she practices. This dialogue is often necessary if there are equivocal issues regarding Medicaid.
The list of other professionals is probably infinite, but the above represents some of those that should be part of every elder law attorney's arsenal.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 165
I have also discussed the need for a geriatric care manager. Such person is necessary to advise the attorney of the proper facility that an individual should live in. That is, the most basic doctrine of elder law is that a person should live in the least restrictive environment. Therefore, whether the home, an independent living facility, an assisted living facility or a nursing home is most appropriate, is a decision that should be made by a geriatric care manager.
I have discussed the need for an accountant to prepare an individual's tax return, the payment of such tax being part of the spenddown process.
An attorney should have colleagues with whom the attorney consults in light of the confusion of the New Jersey Medicaid law. Particularly, an attorney should have a relationship with legal services, who often are aware of the benefits available.
A disabled child has special status under the Medicaid law. Often, such individual will not have qualified for social security benefits. The state will make its own determination if sufficient information is provided.
It has been discussed in Post 103, that once Medicaid planning is undertaken, financial planning or estate planning is no longer relevant. Therefore, it is necessary to have a relationship with a broker, who would be available to liquidate the individual's stocks or retirement plans.
Also, an attorney should consult with someone regarding Medicare and supplemental benefits. An individual in a nursing home, may require medical treatment, and the cost of the Medigap are covered by Medicaid as discussed in Post 1.
A relationship with administrators of various nursing homes would be advantageous, particularly if you require immediate placement in a nursing home. Such relationship is also advantageous in light of the fact that admission agreements also often have unenforceable contracts, such as a third party guarantee. Convincing the nursing home to eliminate such requirement although required by law (both state and federal), is a difficult task.
Finally, I think it would be helpful if an attorney has experience with a Medicaid supervisor in each of the counties in which he or she practices. This dialogue is often necessary if there are equivocal issues regarding Medicaid.
The list of other professionals is probably infinite, but the above represents some of those that should be part of every elder law attorney's arsenal.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 165
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