Before you or a loved one is faced with a life-limiting illness or cognitive impairment, it is
important to work through the process of estate planning. Too often, families leave the paperwork to the future and end up forced to reconcile these big decisions under less-than-ideal circumstances.
To arrange the affairs within your family, it’s wise to find an attorney (the reasons for which we’ll explore later in this article). You’ll want to find someone with both the expertise to navigate the legal complexities and nuances, as well as someone with whom you feel comfortable discussing these matters in an open and honest way. The earlier you consult with an attorney, the better, as that will ensure that you have the greatest number of planning options available to you. For these arrangements to be honored, they need to be made by someone of sound mind, which is why it is best not to wait for a family or medical emergency in the event someone becomes unexpectedly incapacitated.
Why do you need an attorney?
There’s a lot that goes into estate planning beyond the distribution of assets post mortem. Let’s dive into issues an experienced attorney can help you come to a conclusion on:
Discussing options for paying for long-term care should it become necessary (an estimated 52% of adults over 65 will need long-term care).
Arranging for payment of long-term health care: detailing private insurance, Medicare, Medicaid (Medi-Cal in California), Supplemental Security Income (SSI), etc.
Management of financial affairs during the lifetime. In the event that you or your loved one becomes incapacitated, who should have the ability to access bank accounts, pay bills, etc. for that person?
Preserving family assets, ensuring spouse or disabled family members are protected. This includes things like wills, revocable living trusts, joint tenancy accounts, payable on death accounts, transfers with a retained life estate, etc.
Management of personal care and medical decisions. In the event someone becomes incapacitated, what are their wishes for medical treatment, and who should have the final say?
Housing options. In the event of incapacitation, what is the plan? Discussing things like in or out-of-home placement choices (depending on what can be done physically and financially).
Distribution of assets upon death.
How to Find an Attorney
There are attorneys that all focus and specialize in different areas. For estate planning, you’ll want to find an attorney that specializes in “elder law” or “estate planning” to help you through this process.
To find an attorney, here are some resources and recommendations:
Personal recommendation from a friend, relative, co-worker, others in a support group or disease-specific organization, or attorney whom you know and trust.
Senior legal services (these will be provided by your local Area Agency on Aging)
An attorney referral service in your area or your local Bar Association
CANHR Legal Referral Service
When selecting an attorney, it’s wise to consult with a few before settling on a choice. This way you can compare specialties, fees, and experience to ensure you’re making the right choice for your family.
What Services Should They Have Experience With?
When reviewing your options, it may not be immediately clear what questions you should ask. In addition to a specialty, here are some areas of experience an estate planning to consider (depending on your situation) that an attorney might need to be able to advise or direct you on:
Medicaid (Medi-Cal in California), SSI (Supplemental Security Income), IHSS (In-Home Supportive Services). Attorneys who specialize in Medicaid eligibility for nursing home care can help with converting non-exempt assets into exempt assets, the transfer of the family residence to a spouse, the transfer of the principal residence with the retention of a life estate, use of court orders to increase the number of resources and/or the income the spouse of a nursing home resident can retain, etc.
Social Security. An attorney who specializes in social security can help with the designation of a representative payee.
Trusts (including revocable and irrevocable living trusts and special needs trusts).
Conservatorship of estate or person.
Durable powers of attorney for health care and asset management (finances).
Tax planning. This includes things like income tax, estate tax, gifting, probate, etc.
Housing and health care contracts/long-term care insurance.
Documents to Bring to Your Consultation
When meeting your attorney for the first time, here’s a list of documents you’ll want to have ready and available:
List of major assets—real estate, stocks, cash, jewelry, insurance, investments
Any documents of title—copies of deeds, stock certificates, loan papers
Contracts or other legally binding documents
Lists of all major debts
Existing wills or durable powers of attorney for health care or finance
Bank statements, passbooks, certificates of deposit (if considered part of the estate in your area), etc.
Income such as social security, pensions, IRAs, etc.
Estate planning can be an uncomfortable set of conversations and tasks to undertake, but navigating it with an attorney can make the process smooth and legally sound. In the event you or a loved one becomes incapacitated, it may be too late for estate planning, which is why it’s important to start the conversation as soon as possible.
For further reading and resources, we invite you to check out our library of information for family caregivers by clicking here. You are also welcome to give us a call at 800-543-8312 to find out more about how we can support you in your caregiving journey.