Elder law focuses on financial planning in light of long-term care options, including Medicaid, during life.
Estate planning focuses on avoiding unnecessary taxes or court involvement, and using knowledge of trust law, probate law, real property law, agency law and contract law to make sure your property will go to who you want, in the manner you want.
Keeping assets in the bloodline is often a desired goal.
Elder law and estate planning are both important because they preserve your dignity and your property. What could be more important than your dignity and your property?
Both areas of law, which intersect, should be used and planned for before the need arises. With elder law, we are taking steps to ensure maximum availability of government benefits now or in the future. This requires planning five years in advance.
If you or your agent apply to qualify for Medicaid to cover long term care costs, they will include transfers you have made within five years of your application when they are assessing whether you qualify.
Caregiver agreements need to be used to make sure monies given to a caregiver for services will not be counted as a "resource" for purposes of eligibility.
Powers of attorney need to be looked at to make sure your power of attorney specifically authorizes your agent to do this kind of planning. Options need to be explored as to steps that can be taken now to serve asset preservation goals.
If your house is paid for, then you can make a simple planning move that virtually guarantees the house will stay in your family. You have to be comfortable forfeiting the right to do a reverse mortgage.
So, if the house is paid for and you are comfortable never being able to do a reverse mortgage, then you can keep a life estate for your life or your joint lives and give the rest to the children, in trust, or not.
Doing this five years before needing Medicaid can make sure the state will not get your house when you pass.
The big challenge in Medicaid planning is how to keep what you need, considering we often do not know how much you will need.
With a few moves, we can protect a lot and do so in a manner that does not unduly restrict you.
Therefore, be vigilant and be wise. The steps you take today could have a big impact on your dignity and what you leave to loved ones.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate planning and elder law attorney. www.mwinnesq.com