Elder Planning

What is Elder Planning?

What is Elder Planning?

Elder planning is a specialized aspect of estate planning. Its main goal is to help you to preserve your assets, which could otherwise be spent down and depleted by the costs of nursing-home care and the requirements of the Medcaid program that you might need for long-term care if you become ill or incapacitated as you grow older.

The essential challenge of asset protection in elder planning is to make your arrangements at least five years in advance of any application for Medicaid. Assets that are reorganized within the five years of a Medicaid application – the “look-back period” – will not be successfully sheltered from spend-down and depletion.

Accordingly, it’s important not to wait until you are ill or receive a diagnosis to start your planning. Like the purchase of insurance or the writing of a will, it requires a certain fortitude in facing the realities of what might lie ahead. People often find it helpful and comforting to involve your trusted adult children and other trusted advisors in the process.

At what age should you do Elder Planning?

There's no exact answer to this, as Elder Planning involves many unknown factors. Most particularly, you have no way of knowing when or whether you will need nursing-home care.

As noted above, the most important consideration is that asset sheltering will succeed only if it's done five years in advance of a Medicaid application. And if you don't clear that look-back period, then the period of Medicaid ineligibility will be proportional the amount of assets you tried to shelter. So, the more you have to shelter, the earlier you should start.

Our goals in helping you.

Because this is a complicated, intimidating and highly consequential process, our firm aims to make the process clear, orderly, and empowering for you. Our goals can be summarized as a list of several “C” words:

  • Clarity – We want to have a clear understanding of your needs and circumstances, and to present the issues to you in a way that is clear and comprehensible to you.
  • Control – We want you to feel that you are making your own decisions and are comfortable in choosing what is right for you.
  • Custom – Our solutions are tailored to your specific needs, based on a detailed analysis of your situation your family, your assets, and your personal wishes.
  • Comprehensive and Coordinated – We aim to take all relevant issues into consideration and see the process through from concept to implementation. We know that is not useful to receive advice unless the plans are actually put into action, which can sometimes be a complex task. We work together with your other advisors – accountant, investment advisors, financial institutions – and can recommend others if you need them, to ensure that your plan will take effect as intended.
  • Confidence – We want you to come away from your work with us feeling the confidence that your issues have been well understood and your needs have been carefully addressed.

Our Process.

Many law firms require a large lump-sum payment in order to begin Elder Planning work. We know that you may need to approach this work at your own pace as you think through the issues and come to understand what it entails. For that reason, we are happy to break it down into the following components, if you wish to take it a step at a time.

1. Initial Consultation and Overview – We can have an initial meeting of approximately a half-hour to introduce you to the issues involved in Elder Planning and to the services that we can provide for you. You may conclude that you don’t need to take further action for a few years, that you would like to think it over for a while, or that you would like to proceed with a comprehensive planning project. It’s up to you.

2. Analysis. The next step would be for us to gather your information and perform an analysis of what risks you are exposed to with respect to Medicaid and long-term health care. We will gather this information in comprehensive detail, and then make our recommendations for the documents and actions that will best protect you. This is the largest part of the work.

3. Documents. Upon your review of the Analysis, we would proceed to prepare the recommended documents. If you don’t have a set of estate planning documents that is current or satisfactory to you, we could create those documents for you as well. The major Elder Planning documents are usually a Medicaid Asset Protection Trust and a Guardianship Designation. The major Estate Planning documents are a Will, a Health Care Proxy and a Power of Attorney, and sometimes a Revocable Trust. 

4. Implementation. The signed documents create legal structures, but it is only when you move your assets to appropriate accounts, or revise their ownership structures in accordance with the plan, that your plan actually becomes effective. Many firms give you advice and then leave don’t bother with the follow-through. This is especially problematic for a Medicaid Asset Protection Trust, for which it is important to begin the five-year-look back period as soon as possible. Moreover, we know that you will still need to receive adequate income from your assets, which may require new investment strategies. So, we take on the responsibility to see the plan through to completion, working with your financial professionals and any other relevant parties to ensure that your plan goes into action in a timely manner.

You can proceed through these steps as quickly or as deliberately as you like. We can price them as a set or on an a-la-carte basis, to suit your needs and preferences, with no discount or penalty for choosing one approach or the other. See the Billing page for more information.

Important Caveats.

Because Medicaid is a joint program between the federal and state governments, its rules differ considerably from one state to another. As such, we are able to provide Elder Planning services only to clients who live in the State of New York, or who plan to retire here or receive nursing-home care here.

Also, the documents involved in Elder Planning can only be signed by a person with full mental capacity. It is not necessary to have a lawyer's understanding of the documents, but it is necessary to have full awareness of and responsibility for your actions. If you are seeking legal advice for someone who has dementia, or is developmentally disabled, or has any other mental incapacity, we will not be able to help you. In such circumstances, may need to engage an attorney to conduct a guardianship proceeding. We can make some recommendations if that's what you need. Physical disabilities are not a problem at all.

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