A relatively common situation for our law firm is we get a call from the child of an elderly parent who needs to have estate planning documents right away. The hurry is usually that the elderly parent is in poor health or is about to have some sort of medical procedure which is risky.
We are both familiar with this scenario and happy to help. Part of the way we can help is to visit the elderly parent wherever they may be, especially if they are not mobile. In these situations, usually they are not able to get around.
We can sit down with the person and figure out if they have the legal capacity to create or make changes to their estate plan, whether it be powers of attorney, a will or trust or other documents.
Once we make the determination that they do have legal capacity, we can confirm what the wishes of the person are and can put the documents together. An added bonus is that in most cases, we can execute the documents wherever the person is living.
In most nursing homes for example, we can gather independent witnesses, as needed. Our office can serve as the notaries for the documents as well. Basically, everything can be done quickly and more importantly effectively, despite difficult circumstances.
This is an interesting case. Because this woman left no clear heirs, her estate is in limbo while the court allows people who claim to be heirs file paperwork to prove it. The first lesson here is not to leave your estate in limbo. Draw up a will or a living trust and make it clear who you want to leave your estate to and who you want your executor / trustee to be. The second lesson, especially if you have family members who are older, is to do so before it’s too late. As in this case, once a person loses capacity, it is too late to draw up an estate plan. Most people think about it being too late to draw up an estate plan once a person is dead. This is an obvious example, but just as often the estate plan was on a person’s To Do list and they have a medical event that creates permanent incapacity.
Probably one of the best things about being an estate planning and elder law lawyer is that I get to work with and help seniors. I am often dealing with the adult children of elderly parents as they are suddenly dealing with a crisis with Mom or Dad or a slow evolving process of needing to help them out as they age.
There are two main issues for us to discuss if you are helping an elderly parent. The first issue we need to discuss is whether Mom and/or Dad have their estate planning in place and updated. Do they have a will? Is there a trust? Have their assets been transferred into the trust? Is there a recent power of attorney allowing you to make decisions for them (if they want you to do that)? The cutoff for completing estate planning is competence. Once a person loses competence, we lose a lot of ability to proactively complete estate planning for them.
There are alternatives. Without a power of attorney, we’ll have to file a petition for guardianship to have the court appoint you as the legal representative.
We usually see outdated or incomplete estate planning with older clients and that’s why it’s especially important that we tackle this issue first. Because going forward, those documents have to be done before it’s too late.
The second issue is whether Mom or Dad should stay at home, can move to an independent living facility (the next best thing to being at home), should go to assisted living or must go into skilled nursing. This largely is going to hinge on their medical condition and whether Mom or Dad wants to move. If they are going to a facility the question then becomes how are they going to pay for that? It is one of the unfortunate quirks in our healthcare system that physical ailments (such as heart problems / strokes) are paid for nearly in full by Medicare, regardless of age, but diseases such as Alzheimer’s and other forms of dementia are not covered when they require more extensive and prolonged care for their patient.
Depending on the type of facility, there are a few different ways to pay for long term care. The first is private pay. Next and best is long term care insurance. Then there are government programs such as VA Aid and Attendance and Medicaid.
VA Aid and Attendance is available to veterans and surviving spouses of veterans who have served one day in a war time period, had 90 days of active duty and were discharged honorably, are in need of the “aid and attendance” of another person with the activities of daily living and have limited assets and income.
Medicaid is a federal program administered through the states and is much more stringent in the amount of assets an individual can have (in Missouri, less than $1000.00).
No matter what the circumstances, you will need a competent estate planning and elder law attorney to guide you through the process. Estate planning and elder law has a lot of moving parts and they are constantly changing.