Elder Law Planning
Fendrick & Morgan, LLC, located in Voorhees, New Jersey, has a strong concentration in the area of elder law planning. This area of the law concerns the specific and distinct legal and emotional issues that face our seniors and involves the representation and counsel of seniors and their families with respect to the wide variety of issues that confront our seniors. Not only do we need to consider more traditional issues of estate planning that affect many of our senior clients, but we also need to consider long term care issues and issues of asset preservation. Not to mention the complexities of family dynamics. This area of our practice derives its foundation from placing the greatest emphasis on maintaining the highest quality of life. Consideration is necessarily given to not only the legal issues, but also the medical, financial, social and familial issues.
Life Requires Planning. . . How do we plan for ourselves as we age, and how do we help our parents plan for their future? At its most basic level, elder law involves the design and creation of estate planning documents. Regardless of our age, every adult should have a Health Care Power of Attorney (Health Care POA) and a Durable General Power of Attorney (Durable General POA) for financial decisions. In a Durable General POA, we are able to designate someone to help make financial decisions for us. In a Health Care POA, we are able to designate someone to make medical decisions for us if we are not competent to make such decisions for ourselves. While these documents are critical at any age, they are a necessity for a senior individual. Never has a client entered our office with the hope of retiring to a nursing home, spending their life savings paying for such care and losing the ability to make reasoned, informed decisions for themselves. Sadly, however, assisted living, nursing home facilities and diminished capacity are realities for many. According to the U.S. Census Bureau, more than 5% of those 65 and older reside in a nursing home, assisted living or other continuing care facility at any given time. That rate increases with age, with almost 50% of those aged 95 and older residing in a nursing home. Thus, it is critical to enter into these documents (Health Care and Durable General POAs) while you have the capacity to do so.
Likewise, it is critical that each of us, and particularly our beloved seniors, enter into a proper Will and, if applicable, Trust, which documents can govern the distribution of assets and appoint the appropriate persons to manage our affairs after we are gone. We help you plan for these unfortunate realities for you and your family. Senior clients have different needs and concerns relative to their planning than younger clients. Elder law places an emphasis on those needs and concerns.
Among those concerns, our seniors are often concerned about protecting assets from long term care costs (nursing home, assisted living and in-home assistance). Long-term care is a tremendous expense and we need to consider a senior client’s assets not only in light of estate tax considerations, but also in light of Medicaid and long term care costs. These considerations are not addressed by an estate planning attorney who is not also an elder law attorney.
Be Proactive. The clients for whom we are able to do the greatest service are those clients who come to see us before their spouse has been admitted, for example, to the nursing home. Our younger elder law clients are often motivated to be proactive about their planning because they have witnessed their parents or other loved ones suffer through a difficult end of life stage. But, it need not be that way. We should all be mindful of the issues which will confront us as we age, even if we are not there yet.
For example. . . Assume that Bob and Jane Smith, a happily married couple of fifty (50) years have two adult children. Sadly, Bob, at the age of seventy-five, begins showing signs of memory loss. Ultimately, Bob may require care that Jane is unable to provide for him at home. Bob moves into an assisted living facility while Jane continues on in the marital residence, where the couple has lived for the last fifty years. This fact pattern is not unusual and yet, it gives rise to a multitude of issues. For example, did Bob execute health care and financial powers of attorney while he was still competent to do so? If not, Jane may need to petition the Chancery Court to be appointed as Bob’s Guardian so that she can manage his financial affairs and make his medical decisions. Further, does Jane have the appropriate powers of attorney in place? Perhaps Bob always paid the bills and filed the taxes. Now that Bob is no longer able to manage those items, can Jane handle them herself, or does she now need the assistance of her children, or any other person, to serve as her agent for financial affairs? Next, consideration must be given to the cost of Bob’s long term care. Does Medicaid and asset protection planning need to be undertaken? What about the long-time marital home? Should it be transferred out of Bob and Jane’s joint name? What about capital gains tax issues on the appreciation of the property, which will be realized on its ultimate sale? These issues and many more should be addressed in connection with many of our elder clients’ planning needs.
Guardianships. Proper and proactive planning will go a long way to avoiding the need for a Guardian in the future. However, when an individual is unable to make medical and/or financial decisions on their own behalf and has not entered into financial powers of attorney, it may be necessary to have a Guardian appointed for that individual by the Court. Also, even if an individual has created the appropriate powers of attorney but is now acting in a way that is detrimental to his or her physical or financial well being, it may be appropriate to petition the Court to have a Guardian appointed. We often represent family members who seek to petition the Court for the establishment of a guardianship for an incapacitated or developmentally disabled individual. We have handled many complex Guardianship cases, including those involving Medicaid planning, health care issues and asset preservation.
Disability Planning. When an individual is disabled and, as a result of such disability, is receiving certain government benefits, it is critical that such benefits be preserved. We assist disabled individuals and their loved ones to plan for their long-term needs. We also advise the parents and family members of disabled persons on how to effectively provide for their loved one without jeopardizing the valuable government benefits that the disabled person may be receiving. Careful regard for preserving eligibility for Medicaid and other government entitlements is always given. We draft Supplemental Needs Trusts and other documentation, as appropriate, and advise the Trustees of such trusts regarding such trust administration.