Presentation on theme: "Helena S. Mock, Esq. The Peninsula Center for Estate Planning and Elder Law."— Presentation transcript:
Helena S. Mock, Esq. The Peninsula Center for Estate Planning and Elder Law
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
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 senior’s stay at home; ◦ Protect the senior’s quality of life; ◦ Preserve assets and ensure they pass as desired when no longer needed
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
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
Durable Power of Attorney Medical Directive Living Will Guardianship/Conservatorship Wills Trusts Long Term Care Planning Options Government Benefits
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
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
Living Will ◦ Tells doctors not to use extraordinary measures if you’re 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
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?
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
If no Medical Power of Attorney or Medical Directive = guardianship over incapacitated person If no Durable Power of Attorney, or if it’s not complete = conservatorship over incapacitated person’s income and assets
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 person’s legal affairs and finances
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
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
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
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
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
Revocable vs. Irrevocable Trusts ◦ Asset protection trusts ◦ Special needs trusts ◦ Gifting trusts ◦ Life Insurance Trusts
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?
Does it contain: ◦ Medicaid “Trigger” provisions? ◦ Long term care provisions? ◦ Trust Protector?
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
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 there’s a change in circumstances; death; etc.
What your children need to know ◦ Where your documents are ◦ Who your advisors are When should you talk with your children? ◦ Parents don’t want to discuss ◦ Children don’t want to discuss Be proactive – you don’t want to have to think about these things when you need them; you just want them to work
Durable Power of Attorney Estate Plan Revocable Trust Pour Over Will Trust Funding Health Care Documents
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
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
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.
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
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 don’t 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)
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
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.
THE PENINSULA CENTER For Estate Planning & Elder Law We’re here to help you.