LIFE CARE PLANNING (Maintaining Control & Ensuring Protection)

1. LIFE CARE PLANNING (Maintaining Control & Ensuring Protection) Helena S. Mock, Esq. The Peninsula Center for Estate Planning and Elder Law

2. Helena S. Mock • Attorney at Law since 2000 • B.A. in English, University of Maryland, Summa Cum Laude (1992) • M.A. in English Literature and English Education, Old Dominion University (1996) • Juris Doctorate, William & Mary Law School • Accredited Attorney, Veterans Affairs Administration • Adjunct Professor, William & Mary Law School • Member, National Academy of Elder Law Attorneys • Member, Peninsula Estate Planning Council

3. WHAT IS LIFE CARE PLANNING? • Also called “Family Care Planning” • Mission = to assist the senior and his family: • Be able to make legal, financial and health care decisions without government or court intervention; • Find, get and pay for good long term care; • Prolong the senior’s stay at home; • Protect the senior’s quality of life; • Preserve assets and ensure they pass as desired when no longer needed

4. THE COMPONENTS • Disability Planning • Asset and Health Care Management • Long Term Care Planning • Home care, Assisted Living, Nursing home care • Estate Planning • Estate tax • Probate • Protecting beneficiaries • 60-70% have no estate plan

5. THE GOALS • Successful transition from capacity to incapacity • Continuing asset management through disability • Making appropriate health care choices • Successful transition from home to long-term care • Where will you live; what are your care needs • Having adequate funds to cover those needs • Successful transition from life to death • Appropriate arrangements for final resting place • Pass estate to those you choose • Pass estate at lowest possible cost & with minimal inconvenience • Pass estate with greatest possible speed

6. THE TOOLS • Durable Power of Attorney • Medical Directive • Living Will • Guardianship/Conservatorship • Wills • Trusts • Long Term Care Planning Options • Government Benefits

7. DURABLE POWER OF ATTORNEY • What is it? A durable power of attorney (DPOA) gives another the authority to handle your legal and financial affairs. • Effective Now • Springing • Gives substantial power to your Agent. You must understand the power you are giving • Can be abused – be careful in selecting Agent

8. DPOA POTENTIAL PROBLEMS / QUESTIONS TO ASK • Is it Durable? • Does it name Alternate Agent(s)? • How old is it? • Was it executed in Virginia? • Does it address all issues your Agent may face • Management of Retirement Plan Assets • Estate Tax Planning • Long-Term Care Planning • Obtaining Government Benefits

9. LIVING WILL & MEDICAL POWER OF ATTORNEY • Living Will • Tells doctors not to use extraordinary measures if you’re terminal; only pain medication & comfort care • NOT a DNR • Medical Power of Attorney • Names a person to make health care decisions for you when you cannot

10. IF YOU ALREADY HAVE A LIVING WILL AND/OR MEDICAL POA • How old is it? • Was it executed in Virginia? • Does it address HIPAA? • Does it give your agent authority to make long-term care arrangements? • Does it provide a release of liability for medical providers?

11. GUARDIANSHIP & CONSERVATORSHIP • Guardianship - Ability to make residential, medical, educational and employment decisions for someone else • Conservatorship - Ability to make financial decisions for someone else • May need one or the other or both

12. WHEN DO THEY APPLY? • If no Medical Power of Attorney or Medical Directive = guardianship over incapacitated person • If no Durable Power of Attorney, or if it’s not complete = conservatorship over incapacitated person’s income and assets

13. THE GUARDIANSHIP / CONSERVATORSHIP PROCESS • Incapacitated person has no one to make medical or financial decisions for her • Results in legal determination of incompetency • Court will appoint person or organization to handle incompetent person’s legal affairs and finances

14. THE CHALLENGES • Expensive and takes time to process • Guardian must thereafter report to Department of Social Services • Conservator must thereafter make financial report to court (called the “Annual Accounting”) • Annual surety bond usually required for conservatorship

15. WILLS • What is it? A will directs: • To whom you want your property distributed after your death (your “Beneficiaries”) • Who is responsible for settling your estate (“Your Personal Representative”) • You must be competent and under no undue influence or duress to make a will • After death, the will must be probated

16. WHAT IS PROBATE? • Probate is the process of administering estates in Virginia • Overseen by Commissioner of Accounts • Requires filing of periodic reports • Inventory • Annual Accounting • Fees and costs • Probate tax • Filing fees • 12-36 months (or longer) • Public Record • No immediate access to funds

17. Multiple Probates

18. TRUSTS • A trust is An entity you create during your lifetime • It gives ownership of property transferred to the Trustee of the trust • The Trustee is required to manage and distribute the trust property according to the terms of the Trust Agreement • A trust may be revocable or irrevocable

19. PURPOSES OF A TRUST • Avoid probate and associated costs • Provide for ease of administration • Provide for a special needs or spendthrift beneficiary • Privacy • Asset protection for surviving spouse & beneficiaries • Handle assets in other states • Disability planning • Estate tax planning for married couples • Government benefits planning

20. TYPES OF TRUSTS • Revocable vs. Irrevocable Trusts • Asset protection trusts • Special needs trusts • Gifting trusts • Life Insurance Trusts

21. IF YOU ALREADY HAVE A REVOCABLE TRUST • When was it created? • When was it last reviewed? • Has your situation (family, financial) changed since the Trust was created? • Does your trust reflect recent estate tax and Virginia law changes • IS IT FULLY FUNDED?

22. IF YOU ALREADY HAVE A REVOCABLE TRUST • Does it contain: • Medicaid “Trigger” provisions? • Long term care provisions? • Trust Protector?

23. DO-IT-YOURSELF ESTATE PLANNING • NOT RECOMMENDED • Internet materials are not reliable • Do-it-yourself programs all contain a disclaimer/release of liability • There is no one-size-fits-all document

24. ONCE YOU HAVE YOUR PLAN IN PLACE… • Where should you keep your documents • Safe deposit box • Fireproof safe in home • Freezer • How often should you review your documents • Every 3-5 years, or • If there’s a change in circumstances; death; etc.

25. ONCE YOU HAVE YOUR PLAN IN PLACE… • What your children need to know • Where your documents are • Who your advisors are • When should you talk with your children? • Parents don’t want to discuss • Children don’t want to discuss • Be proactive – you don’t want to have to think about these things when you need them; you just want them to work

26. Putting the Final Pieces Together Estate Plan Durable Power of Attorney Revocable Trust Pour Over Will Trust Funding Health Care Documents

27. LONG TERM CARE PLANNINGCONCERNS • Want to leave an inheritance for the children • Want to stay at home for as long as possible • Do not want to be a burden for the children • Do not want to enter a nursing home

28. LONG TERM CARE PLANNINGMEANS OF PAYING • Medicare: limited coverage of skilled nursing home care • Long Term Care Insurance • Private pay (estimate $6,500 per month) • Medicaid: full coverage of long term assisted living and nursing home care expenses, prescriptions; limited assistance with home health care costs

29. LONG TERM CARE PLANNINGINSURANCE • What is it? Insurance which typically can provide some / full payment toward home health care, assisted living care, and nursing home expenses • Where does it come from? True insurance, purchased as a stand-alone policy from insurance companies • What is it not? Not your Medicare supplement.

30. LONG TERM CARE PLANNINGINSURANCE • Decide before you shop about what your general policy needs are • Find a broker who can offer multiple policies • Set several policies side by side on the kitchen table • See your elder law attorney with questions regarding policies

31. LONG TERM CARE PLANNINGFOUR THINGS TO REMEMBER • Every plan must be tailored to the individual situation, needs and goals • See an elder law attorney when you become concerned, before the loved one enters nursing home • You don’t have to be impoverished to qualify for Medicaid (if married) • Do not transfer assets to qualify for Medicaid (without knowing what you are doing or without seeing an elder law attorney)

32. PLANNING RECOMMENDATIONS • Everyone should plan for their own potential disability with • Durable Power of Attorney • Living Will / Medical Power of Attorney • Everyone should plan for their own death with • Living Will • Will • Trust • All should consider long term care planning options • All should maintain open communication with children about what you want

33. DISCLAIMER This presentation is not intended as a substitute for legal advice. It is for basic educational purposes only and made with the understanding that if you need legal advice, you will seek the services of a competent Elder Law attorney. While every precaution has been taken to make this presentation accurate, we assume no responsibility for errors or omissions, or for damages resulting from the use of the information presented.

34. THE PENINSULA CENTER For Estate Planning & Elder Law We’re here to help you.