At the Harrisonburg-Rockingham Aging in Place Business Round Table Meeting on May 17, 2013, we heard from an esteemed panel of elder law attorneys who discussed three different aspects of legal planning:
- Planning for death
- Planning for incapacity
- Planning for long term care
The attorneys on the panel were as follows (see contact information at the bottom of this post.)
- Erin E. Layman, Attorney at Law
- Matthew C. Sunderlin, Certified Elder Law Attorney
- Cathy Jackson Leitner, Attorney and Counsellor at Law
Though these attorneys offer services in multiple areas of elder law, for this presentation each attorney concentrated on one aspect.
Cathy Jackson Leitner Discussed Planning for Death
Cathy emphasized that elder law is a holistic practice of law, and that attorneys are trusted advisors that have relationships with clients and their families over many years. She stated her appreciation of the nature of the Aging in Place Business Round Table as a way to get to know other service providers with a passion for serving older adults so she can make confident referrals to those providers.
Cathy works with clients of all ages to plan for death, plan for incapacity, and plan for long term care and to deal with the crises that families face when they fail to plan.
Families who do not plan for death could end up in awkward situations in which assets pass to people other than those that the deceased would have chosen, and Cathy shared examples of unfortunate situations she has personally seen with clients. Lesson: be sure to have a plan in place, have the documents prepared correctly with the help of an attorney, and update your plans periodically (every three to five years.)
Matthew C. Sunderlin Discussed Planning for Long Term Care, Especially Medicaid and Veterans Benefits
Options for paying for long term care include:
- Liquidating assets
- Utilizing long term care insurance
- Utilizing a reverse mortgage
- Receiving Medicaid benefits
- Receiving VA benefits
Matt emphasized the difference between Medicaid and Medicare: Medicare provides health insurance, and Medicaid provides funding for long term care – for those who qualify.
Matt provided a mnemonic for remembering Medicaid eligibility criteria: CAID
- C = Citizenship
- A = Asset test
- I = Income test
- D = Disability test (Medically needy: aged, blind, disabled – need assistance with activities of daily life)
For Medicaid purposes, disability means the need for assistance with four of the activities of daily life. These activities can be remembered with mnemonic “DEATH”
- D = dressing
- E = eating
- A = ambulating/transferring
- T = toileting
- H = hygiene
To be qualified for Medicaid the institutionalized spouse must also have income less than a certain amount. The spouse living in the community can have significantly more income.
To be qualified for Medicaid the institutionalized spouse must have assets below a certain amount. There are complicated rules about which assets are considered (especially if there is a non-institutionalized spouse.) There are ways to transfer assets to others in order to qualify for Medicaid, but these transfers must be made many years in advance of the need, and rules change over time. It is best to consult an attorney familiar with Medicaid rules in order to avoid costly mistakes.
Matt also discussed Veterans Benefits
The Veterans Administration provides for a Veterans Aid and Attendance Pension benefit to veterans and their survivors. Eligibility criteria are:
- A service connection
- Limited income
- Being disabled (require the aid and assistance of others to perform the activities of daily living)
- Limited assets, (though there is not a lookback period for asset transfers as there is for Medicaid.) These rules are complicated. It is best to consult an attorney familiar with VA rules in order to avoid costly mistakes.
The required service connection is being in active military service for 90 days, one day of which is during a war period, and under discharge in other than dishonorable conditions. War periods are defined as:
- World War II: Dec. 7, 1941 – Dec. 31, 1946
- Korean War: June 27, 1950, through Jan. 31, 1955.
- Vietnam War: Aug. 5, 1964 (Feb. 28, 1961, for veterans who served “in country” before Aug. 5, 1964), through May 7, 1975.
- Persian Gulf War: Aug. 2, 1990, through a date to be set by law or Presidential Proclamation.
Erin Layman discussed Planning for Disability or Incapacity
Erin urged everyone over the age of 18 to have two critical documents:
- Durable Power of attorney – appoints someone to manage your financial and legal affairs. It is in force as soon as signed, so it should only be given to someone you trust. It is important even for young people in case of accident. For older people, it is helpful for transitions when it is harder to get to the bank, etc. Assigning power of attorney can also help familiarize the agent to the location of key documents and therefore provides a smoother transition toward the agent becoming more active in the principal’s legal and financial affairs.
- Advance medical directive, which is a two part document:
- Living will – indicates to the agent whether or not you want life support (oxygen or artificial hydration/nutrition) if in a terminal condition
- Medical power of attorney – authorizes an agent to make medical decisions on your behalf. It is only in force if you are deemed incapacitated.
One of the benefits of an advanced directive is that it gives comfort to the agent by ensuring they know your wishes when they are required to make decisions for you. In 2010 the statute was revised to allow the principal to give more instructions such as specifying who can visit you while you are incapacitated.
Care should be taken to choose the right person as your agent. Sometimes clients assume they should appoint their eldest son, but that isn’t always the right choice. Some people are not responsible enough with money to be given financial power of attorney, and others may not be comfortable making health care decisions for someone else.
Erin emphasized the importance of planning, because if a person becomes incapacitated without the appropriate documents in place they must be taken to court to have someone appointed to make decisions for them. This is a difficult, expensive, unpleasant route to take.
Contact Information for Our Panelists:
Cathy Jackson Leitner, Attorney and Counsellor at Law
Matthew C. Sunderlin, Certified Elder Law Attorney
Erin E. Layman, Attorney at Law
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