When You Need an Elder Law Attorney

An elder law attorney can guide you through the issues that affect us as we age.
An elder law attorney can guide you through the issues that affect us as we age.

The conversation that you have with an estate planning attorney, when you are in your thirties with a new house, young children, and many years ahead of you is different from the one you’ll have when you are much older. That’s the time to consult an elder law attorney. When you are older, you face a whole new set of issues, including rising health costs and the possibility of needing long term care. An elder law attorney knows that you are about to enter a time in your life when your estate planning documents are more likely to be used, says the article “Learn about legal documents and Medicaid” from the Houston Chronicle.

As we get older, the need to address long term care becomes more important. Elder law attorneys warn that there are many options that may be foreclosed if planning is not done ahead of the time. This is the time to talk to an elder law attorney to create a road map that anticipates the care you may require as you get older and how to pay for it. Making the right decisions now, could have a big impact on the quality of your life in the future.

This is also the time to update your financial and medical powers of attorney. Because of your experiences, there may be certain preferences you have for health care treatment. In addition, your elder law attorney may advise you to include a broad gifting power in your financial power of attorney which may be necessary to help you qualify for government assistance.

You should also review your other estate planning documents to make sure that they still reflect how you wish your estate to pass at your death. Your elder law attorney may suggest adding provisions to protect a surviving spouse’s eligibility for Medicaid or other government assistance in case it is needed.

It may be that your estate plan will include trusts, or that certain assets will need to be retitled. An elder law attorney can guide you through this stage of your life to make sure that you are prepared for what the future holds.

Learn more about elder law and medicaid at our website.

Reference: The Houston Chronicle (April 19, 2019) “Learn about legal documents and Medicaid”

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Probate Lawyers Say Talk to Your Parents About Estate Planning

Probate lawyers say it's important to talk to your parents about estate planning.
Probate lawyers say it’s important to talk to your parents about estate planning.

Probate lawyers often meet with adult children who are trying to settle their parents’ estates. Many times these children are surprised by their parents’ financial situation and the lack of estate planning that their parents have done. When little or no estate planning has been done, it can be expensive and time consuming to deal with all the unresolved issues that  result. That’s why probate lawyers strongly encourage adult children to talk to their aging parents about their finances, their feelings about health care decisions, and whether they have an estate plan in place. But this is easier said than done. How do you start a conversation that includes a discussion of a family member’s mortality?

Sometimes the way to ease into a conversation with aging parents about money and their estate plan, is to discuss your own. If you want to know about their will or estate plan, start by explaining your own estate plan, how you’ve decided to set up your estate and then ask what they’ve done for themselves.

The conversation may feel awkward the first time you start it, says the Daily Local News in the article “Ask your folks about their financial plans,” but you need to get to where everyone is comfortable having the conversation. Your parents’ plans might impact yours, and visa versa. So, it’s good to talk “early and often” not only about your parents’ estate plan, but how they are planning for the costs of retirement, including health care.

It’s important for aging parents to understand that, if something happens to them, their children are the most likely ones to step in and take charge. Your parents need to understand that the more you know in advance, the better equipped you’ll be to make sure that their wishes are followed.

A good opening is to talk about your plans to save for retirement. Ask your parents what they did, or do, about 401(k) contributions. This will give you insight into how well-prepared and knowledgeable they are about retirement savings. If you’re house hunting, that’s an excellent opportunity to get them talking about their furture plans for living arrangements. Do you need to buy a home with a possible “in-law” suite in mind? It’s not a bad question to ask. It shows that you are thinking about their future needs.

Probate lawyers have seen how untangling an estate when there’s no will and no advance planning has been done can tear a family apart. That’s the last thing you or your parents want. Talking openly with them about money, trusts, wills, life insurance and advance medical directives, will give you an idea of what they have or have not done to plan for the future. It may spur your parents on to move forward with their estate plan, if they have been procrastinating.

Even if you learn that they haven’t done any planning and don’t have a will, that is better than not knowing until it’s too late. If you learn that this is the case, you can start educating them about what will happen if they don’t meet with an estate planning attorney. You can offer to take them to meet your estate planning attorney or to give them a few names so that they can decide who they are most comfortable with. This could help them avoid some common estate planning mistakes.

Setting up your own estate plan is another opportunity to ask your parents what they did and what their thoughts are about your  estate plan. Their family may have never done any estate planning, and they might have more than a few family horror stories to share. In that case, you can help them change the family’s dynamic by encouraging them to take a different path.

Reference: Barchart (April 16, 2019) “Ask your folks about their financial plans”

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Living Wills and Medical Powers of Attorney – Why They Are Important

Medical Power of Attorney agent discussed health care decisions with family member
It is important to discuss medical preferences with your medical power of attorney agent.

Living Wills (referred to in Texas as “Directives to Physicians and Family Members”) and Medical Powers of Attorney are important if a person becomes incapacitated, whether that status is permanent or temporary. These are part of a comprehensive estate plan, and you’ll want to take care of this before a medical emergency arises. That’s the recommendation from the McPherson Sentinel article “Advance health care directives important to all adults.”

Documenting your wishes about future health care lets a cognitively healthy person express his or her wishes with a clear perspective. Unfortunately, only one in four American adults has their medical power of attorney and/or living will in place. Many wait to begin the planning process until they are in their 50s or 60s. The problem is, life doesn’t have a plan. Tragedy can strike at any time in life. A serious illness or an accident can occur leaving the family wondering what the person would have wanted.

You do not need to be in an “end of life” situation for a medical power of attorney to come into play. The agent you name in your medical power of attorney makes a health care decision for you any time you cannot communicate your wishes, yourself. This could happen during a routine medical procedure that is not life threatening.

The living will, on the other hand, sets out your wishes in the event you have a terminal condition, death is imminent, and you do no want your life to be prolonged by artificial means. Artificial means may include, among other things,  being placed on a ventilator or receiving artificial nutrition and hydration.

Under Texas law, your agent under a medical power of attorney may make the decision to withhold or withdraw life support, unless you have limited that power in the document. That is why a living will or a directive to physicians may not be legally necessary, if you have named an agent in a medical power of attorney. But many people opt to have a living will in addition to a medical power of attorney. They would like to give their own instructions for end of life decisions as opposed to putting the burden on the agent named in the medical power of attorney.

One thing to keep in mind is that a medical power of attorney is different from a financial durable power of attorney (in Texas – the Statutory Durable Power of Attorney), which gives a person the right to act as another person’s agent and conduct business and financial matters on his or her behalf.

It’s very important that the people you designate as agents in a medical power of attorney or living will are told that they have been named. You should designate an initial agent and then one or more successor agents in case the first person named is unable to act. Your agents need to fully understand what your wishes are and what kinds of treatments are acceptable to you. Communication is the key and you need to make sure that you and your agent have discussed your preferences.

The people you select as agents under your medical power of attorney should also understand that health care decisions for you need to be made according to your wishes and not their wishes or the wishes of other family members.

These documents should be prepared for you as part of your overall estate plan, with the guidance of an estate planning attorney. Be aware that the laws vary from state to state, so you’ll want to work with an attorney who knows your state’s laws. If you relocate to another state, you should update your medical power of attorney and living will to conform with that state’s laws.

Finally, make sure that your medical power of attorney and living will are located in a place where they can be easily found in an emergency.  Your agents should each have a copy they can bring to the hospital, if necessary. The important thing is that the medical power of attorney and living will can be found and used in a time of crisis.

Reference: McPherson Sentinel (April 17, 2019) “Advance health care directives important to all adults”

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