Navigating care of an elderly parent or loved one can be emotionally as well as financially draining. I sat down with Joyce Elwell, an attorney who specializes in elderly care, to hear her expert advice on how to potentially make the financial aspect of elderly care less burdensome.
LA: According to the U.S. Census*, by the year 2029, 20% of the population will be over the age of sixty-five. When should you consult an elderly care attorney?
JE: An elderly care attorney should be consulted for general estate planning for matters confronting elder clients, and where there are no serious medical issues developing. I recommend that clients come in for a consult at between sixty and sixty-two years old. At that age, clients should be thinking seriously about the life changes that could occur with their health and financial circumstances. A consult helps then to gain knowledge regarding what to expect as they begin to age. Where there are illnesses or debilitations of aging setting in, I recommend coming in for a consult immediately upon learning of the medical condition. This can happen as early as during the forties or fifties and consultations for those clients can never be scheduled too soon. Oftentimes, we can avoid serious financial planning and health resource access errors if the problems are dealt with on inception.
LA: How important is it to have a will in place and an estate plan? At what age would you recommend putting these in place? When, in your opinion, is it too late?
JE: It’s important to have a carefully thought through and properly executed Last Will and Testament as well as a corresponding estate plan. The estate plan, which may involve a trust, would be in place so that there is a record of exactly what the client personally intends for their particular disposition of wealth. People often believe that they do not need a Will if all of their assets have beneficiary designations or will transfer by other means. For example, payable on death or joint tenancy with rights of survivorship are two channels in which assets may be transferred. When there are instances of unanticipated assets coming into the estate, such as inaccessible, unknown or forgotten assets or latent inherited assets, without a Will, those assets will pass in accordance with state intestate statutes that direct passage by familial relationship. That passage my not be what the client ever intended. In my practice, I have seen many files where there are unintended consequences because a Last Will and Testament was not completed during the client’s lifetime.
LA: Should everyone also have a living will/medical care directive?
JE: Everyone should have an Advance Directives document with a Living Will component. An Advance Directive is the client’s choices and decisions irrespective of the fact that they are conveyed through a health care representative. The most important benefit of having such a document is that it tells the medical provider what you would or would not want in medical circumstances. The most frequently used portion of that document is the appointment of a health care representative. Relied upon by the physician, this piece of the document allows for the judgment of someone who knows you well and knows what your wishes would be. Used less frequently, but just as important, is the Living Will component of the document, which generally provides the circumstances, if any, under which the physician should provide or withhold life support. When placing your wishes on record through this carefully thought out and executed documentation, you are freeing your appointee or family member from the daunting responsibility of trying to decide what to do under emotionally grueling medical circumstances; they are conveying your directives and not substituting their own opinion or that of the physician.
LA: Can you elaborate on the importance of a durable power of attorney?
JE: A durable power of attorney document is worth its weight in gold in circumstances where the client or “principal” becomes unable or unavailable to conduct his or her own affairs. The durability clause means that the document is not affected by the principal’s subsequent incapacity. It is a “business operating” document that appoints someone whom the principal personally chooses and who is trusted to conduct one’s affairs during the principal’s lifetime should they become unavailable or incapacitated. Without this document, if a legal representative is needed, due to illness, accident or other circumstances, the only other option available, if there is no trust in place, is a probate court appointment of a conservator. The probate court process of appointing a conservator is not private, can be very financially burdensome, and may result in the choice of someone to serve that the client has never met. The existence of a properly executed Durable Power of Attorney document usually avoids this process.
LA: When you’re establishing your will, what are the most important questions to ask yourself?
JE: When planning to draft a Last Will and Testament, it is extremely important to know what assets you are holding and exactly how those assets are captioned or held. It is also imperative to consider that only assets that are solely owned at the time of death, i.e., those not passing by other means, such as via beneficiary designation, survivorship, payable on death or payable in trust, will pass by Will. Another critical step in this process is designating an individual or individuals, who are satisfactory at handling finances to become the executor or executors. As executor, they are charged with administering the estate. It should be kept in mind that administering an estate is similar to running a business and the individual chosen to be “the fiduciary”, should be a proven and experienced manager of their own affairs and also adept at keeping records with an ability to account to the Court. Wills should be well thought out as they function to pass wealth that most likely the testator worked hard to accumulate. They should be written from the heart and not for the purpose of appeasing certain individuals.
LA: How do you safeguard your assets prior to and when an individual in entering elderly care?
JE: Safeguarding assets prior to and when an individual is entering elder care circumstances must be done very carefully. In order to avoid the financial pitfalls that can occur, an attorney skilled in Medicaid planning, should be consulted. The state of Connecticut, for example, has a five-year look back period. This means that the state will look at five years of the applicant’s bank records, financial records and real estate holdings to ensure that all assets owned by the applicant during that period have been used exclusively for their own benefit, that of their spouse or that they have derived fair market value if expended or transferred. There are some means by which transfers can be deemed excluded and that determination should be done with the guidance of a skilled estate planning attorney who understands Medicaid transfer laws and regulations.
LA: What should be the criteria when seeking a long-term care facility or nursing home?
JE: The criteria for seeking a long-term care facility or nursing home should involve careful research into the standing of the facility with the state regulatory authorities charged with the facility’s oversight. It is also helpful to explore whether there is anyone who can give you a first-hand review of their experience with the facility such as neighbors or friends that have had a loved one institutionalized at that particular facility. Obviously, a tour of the facility indicates the general atmosphere and conditions, but it is also important to not be taken in by an upscale appearing physical environment and to fully investigate the kind of hands-on care generally provided.
LA: What are the options when paying for long-term care?
JE: Payment options for long-term care include long-term care insurance that may be in place, self-pay options where one’s personal assets are expended for cost of care, or Medicaid (Title XIX). It is important to understand the contractual provisions of any long-term care policy before relying on it as a complete source of payment. Where Medicaid is concerned, it is necessary to submit, personally or through an attorney processor, a complete and accurate application to ensure that the file is completed in a reasonable time. Medicaid is not Medicare and is not an entitlement; it must be applied for and there are very strict and complicated criteria for eligibility.
LA: What rights should patients and their families be aware of when residing in a nursing home?
JE: The rights that patients and their families should be aware of when residing in a nursing facility are enumerated in each state’s version of the patient’s bill of rights. They include the right to respect and dignity, freedom from chemical and physical restraints, management of one’s own finances or availability of help to do so, ability to voice grievances without fear of retaliation, ability to associate and communicate privately with persons of choice, right to receive and send personal mail, confidentiality of one’s medical records, ability to apply for state and federal assistance without threat or discrimination, right to be informed prior to admission of resident rights, notice of services available and the charges for services, right to be notified of or right to appeal any transfer or discharge.
LA: When is guardianship needed? What are the most important factors to be considered when choosing a guardian?
JE: Guardianship proceedings involve the appointment of a substitute decision maker by the Court for an individual who does not have the capacity to manage his or her own affairs. Guardianships are seen in cases of personal or health related management of a person and often times occur when a minor’s parents are deceased or unavailable to perform care and oversight of the child. It can also be needed when an adult has become incapacitated or incapable or where an adult has diminished capacity. It is important in the drafting of one’s Last Will and Testament to designate a proposed guardian in the case where there would be a need for protection of minor children upon the death of parents or where there is a family member or personal charge who, due to diminished or absent capacity, would need a guardian for their protection.
Joyce Michaels Elwell, an attorney admitted to the Connecticut Bar and the Federal District Court of Connecticut, holds a BS from Southern Connecticut State University, an MS in Health Sciences/ Public Health from Quinnipiac University and a JD from Quinnipiac University School of Law. Prior to the formation of her current solo practice law firm focused on Elder Law, Estate Planning, Trusts and Estates and Real Estate in Milford, Connecticut, she was a member of an eleven lawyer law firm where she focused on estate planning and administration of complex estate and real estate matters. Prior to practicing law, she was a medical technologist and regulatory compliance office at Yale New Haven Health.
For twenty five years Joyce has managed an estates and elder law practice focused on probate and trust estate administration, medical-legal and financial matters related to Title XIX (Medicaid) eligibility and the Medicaid and Social Security disability application processes. A major emphasis of her practice is estate planning for the purpose of obtaining the best financial status during the later, and often financially and medically difficult, years in life for her clients.
Joyce is a member of the Connecticut Bar Association Probate and Estates and Elder Law Sections, has served as a board member of her Town’s Council on Aging by mayoral appointment and has also served as a board member of Bridges, a Community Support System.
Joyce Elwell, Attorney
22 Lafayette Street #1
Milford, CT 06460
Joyce Ellwell is not affiliated with BWC and BWC does not provide legal advice. Her comments are general in nature, and individuals should discuss their particular situations directly with their qualified legal counselors
About the Author
For Lindsey Allard, a successful day is one in which she has the opportunity to go above and beyond for clients and exceed their expectations. What she enjoys most is her daily interactions with clients and seeing firsthand how the BWC team can make a difference in their lives.
As an Accredited Wealth Management Advisor®, Lindsey provides financial planning solutions and investment strategies to individuals and their families as well as defined contribution plans. She is also responsible for the implementation and daily operations of the firm’s Alternative Investments area.
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