CRITICAL LEGAL PLANNING FOR ELDER PATIENTS WITH MEMORY LOSS

The Law Offices of Chester B . McLaughlin4545 East Shea, Suite 173Phoenix, AZ 85028(602) 494-8022

CRITICAL LEGAL PLANNING FOR ELDER PATIENTS WITH MEMORY LOSS

ROLE OF THE ELDER LAW ATTORNEY Elder law addresses the legal issues related to the health, finances and well being of the elderly, with a particular focus on public benefits and issues of incapacity. An elder law attorney should have a knowledge of long term care issues, Social Security, elder abuse, exploitation, guardianship and conservatorship and estate planning.

Differences Between Elder Law Attorneys and Estate Planning Attorneys • Focus on elderly client population • Middle class clientele • Public benefits focus • Focus on incapacity/Long term care • Probate court litigation

Critical Planning Issues for Individuals with a Diagnosis of Memory Loss • Planning ahead is absolutely necessary: capacity is required. • Managing finances

MANAGING FINANCES • If someone is not legally appointed to manage the finances of the person with memory loss then there is no one available to pay bills and their investments and other assets will not be properly managed.

MANAGING FINANCES CON’T • Common Oversights: • Assets which are titled solely in the name of the person with memory loss. • Assets held in joint tenancy that require both signatures in order to be sold. • Filing income tax returns for a married couple.

MANAGING FINANCES CON’T • Planning Around the Problem of Managing Finances: • Financial Power of Attorney • Living Trust

MANAGING FINANCES CON’T • Preventing Financial Exploitation or Misuse of Funds: • Introduction to Problem- Persons with memory loss are an easy target for financial exploitation. • Solution to Problem- The best way to plan ahead in an attempt to avoid potential exploitation is to do a trust. In some cases a conservatorship may be required.

MANAGING FINANCES CON’T • Medical Decision Making: • Oversight- Many people think that because there is a surrogacy statute in the law that designates a responsible party to make medical decisions, there is no real need to appoint someone in advance.

MANAGING FINANCES CON’T • Reasons why not having a health care power of attorney is a problem: • The incapacitated person loses the right to choose; • Children may have to vote to decide; • The default decision maker is a doctor; • A loved one cannot authorize the withdrawal of a feeding tube unless they are the agent or the living will authorizes the withdrawal;

MANAGING FINANCES CON’T • A loved one cannot admit an incompetent person to a psychiatric hospital except in an emergency unless there is specific authority in the power of attorney; • A surrogate can only make health care decisions.

MANAGING FINANCES CON’T • Reasons why not having a living will is a problem. • There is less assurance that the person’s wishes will be carried out. • Unless there is a health care power of attorney, a feeding tube cannot be withdrawn unless the living will specifically authorizes it. • A living will helps alleviate guilt.

Passing Assets on Death Why Plan Ahead? • Law of intestate succession is sometimes unfair. • Joint tenancy with children can be problematic. • Trust funding may not be completed. • Need to do estate tax planning.

PASSING ASSETS ON DEATH CON’T • Need to plan for children with problems. • Don’t want person with memory loss to inherit from healthy spouse. • Want to preserve family home from ALTCS estate recovery. • Need to select person in charge: trustee or personal representative.

Paying for Long Term Care Issues requiring advance planning: • Transferring/gifting assets • ALTCS Resource Assessment • Long term care insurance for healthy spouse • Placement concerns related to ALTCS • Altering couple’s estate plan • Transferring assets to healthy spouse

PLANNING FOR THE SPOUSE Planning for the spouse of the person with memory loss- It is important for the planner to recognize that the issues facing the person with memory loss will also impact other family members and in particular the spouse.

PLANNING FOR THE SPOUSE CON’T • Don’t name the person with memory loss as decision maker. • Prevent loss of ALTCS eligibility due to ALTCS recipient inheriting from the healthy spouse.

CONCLUSION • The little headache that the planning causes will prevent a much larger headache in the future. • Plan ahead to save: • Time • Money • Aggravation

CRITICAL LEGAL PLANNING FOR ELDER PATIENTS WITH MEMORY LOSS