This is the archive page description

What is Long-Term Care Planning?

The news has covered the ballooning costs of health care at great length. In fact, a recent study shows the average American couple pays $265,000 in health care premiums (not to mention out of pocket costs) after age 65 (www.hvsfinancial.com/PublicFiles/Data_Release.pdf). That is A LOT to most, if not all people!

Part of the challenge of growing older is not being able to predict potential changes in our health. This is why long-term care (LTC) planning is so important. LTC planning focuses on planning ahead for care needs and associated costs. With the baby boomer generation just here, long-term care costs are an area of concern for our society. A USA Today article in 2015 highlighted that over eight million Americans required the use of long-term care services in 2014 (http://www.usatoday.com/story/news/nation/2013/12/12/long-term-care-elderly-alzheimers/3990853/). Medicare’s website additionally sets forth the statistic that 40% of people who reach the age of 65 will eventually need to reside in a nursing home. Needless to say, long-term care is headed towards exponential growth and as a result should be on every family’s radar.

Long-term care refers to the services provided by at least one person (either a medical professional or a layperson such as a spouse or child caregiver) to individuals in need of help with activities like walking, cooking, doing laundry, rehabbing an injury, and traveling. Long-term care may be temporary or continuous. For example, someone may receive temporary long-term care while recovering from a fall, whereas continuous LTC is necessary for a person moving into assisted living or a nursing home due to late stage Alzheimer’s or dementia.

Here are a few things to keep in mind about long-term care: First, if you think you can delay or avoid long-term care planning because the government provides Medicare and Medicaid, think again. Medicare covers a limited amount of long-term care (up to one-hundred days), and Medicaid will be available only after significant depletion of assets. In fact, the overwhelming majority of medical expenses over the course of retirement are paid through private insurance or directly out-of-pocket. Second, if you plan on joining the roughly three-quarters (75%) of people who provide long-term care via unpaid family member care, be aware of the demands that it places on the family member. As health needs become more complex, the time investment and stress increases, which may lead to caregiver health issues and lower quality of care. Evidence of this stress can be seen in spouses who provide care for each other, because there is a 67% higher chance that the caregiver spouse will predecease the spouse in need of care.

There is good news for us here in Minnesota. A recent study by AARP ranked Minnesota as the best (yes, #1!) provider of LTC in the country in terms of quality and availability (http://www.longtermscorecard.org/). While cost is still a concern, this is a positive thing to note for families, seniors, caregivers and Elder Law Attorneys that call Minnesota home.

As you can see, it is crucial to meet with an Elder Law Attorney in your state about long-term care planning. The attorney will examine your personal and financial situation and advise you on the best ways to manage your assets in preparation for potential changes to your health status. Whether it means purchasing long-term care insurance before you retire, legally spending down for Medicaid qualification, or any other type of necessary preparation, it is smart to learn how to protect your assets, your loved ones, and yourself by developing a plan before something happens.

What is a POLST form?

A Physician Order for Life-Sustaining Treatment (POLST) is a document that is designed to allow terminally ill individuals and those experiencing an emergency to indicate to health care professionals what they desire to happen in life-ending situations. A POLST is NOT a substitute for a Health Care Directive. POLST documents are short (often fill-in-the-blank) and limited as to how you are able to express your beliefs surrounding life-sustaining treatments. At its most basic level, a POLST allows you to instruct health care professionals to do everything in their power to keep you alive, or to allow you to die naturally with only specifically authorized care. Often, a POLST form will come into play in emergency room visits and 911 calls.

Within the POLST form, three key end-of-life issues are presented. These include choices surrounding the use of CPR, the level of medical intervention allowable, and the use of artificial nutrition/hydration. A POLST document becomes important when someone encounters a new, serious condition and they do not have a Health Care Directive in place.

To be effective, a POLST must include the signature of a doctor. This is a REQUIREMENT. Without a doctor’s signature, a POLST holds absolutely no power, as it is not technically a medical “order”. The doctor will often fill in the patient’s preferences after having a conversation with the patient. A patient must express an interest in completing a POLST form to the doctor, as neither a doctor nor a patient can create a POLST independently.

Overall, a POLST form is something that controls in terminal and emergency situations. A Health Care Directive is vastly preferred to a POLST form due to its breadth and its ability to be tailored to the individual’s specific wishes and beliefs. Understanding the difference between the powers of these two documents can be crucial to controlling the final stages of one’s life. If you or a loved one is experiencing an irreversible, serious health condition, be sure to ask your doctor about a POLST form or complete your Health Care Directive as soon as possible.

For more information on Minnesota’s specific POLST requirements visit: http://www.mnmed.org/advocacy/improving-health-of-minnesotans/POLST-Communications.

Medicare in Elder Law

Medicare is a program for which all Americans age 65 and older qualify. It is not means-tested or limited to the financially needy; however, it has specific coverage limitations that are not always known to those who rely upon Medicare for care.

There are four parts to Medicare: Part A, which covers inpatient hospital stays, hospice, and doctor-prescribed home care; Part B, which covers physician fees and outpatient medical services; Part C, which grants a limited number of private providers the opportunity to offer Medicare services; and Part D, which provides for drug prescriptions with an additional monthly premium. Participation in one or more of Medicare’s parts is optional, based on your personal preferences and needs.

Part A is premium free except in rare cases. However, it should be noted that there are deductibles paid out of pocket, and the level of financial coverage drops drastically after sixty (60) days in the hospital or twenty (20) days in a skilled nursing facility. Click the link here for more information.

Part B has a monthly premium of $105 for most people. Premiums increase depending on the beneficiary’s income. For Part B, there is a yearly deductible of $147. See the link provided above for further information about the costs of Part B.

One of the frustrations people have with Medicare is the services that Medicare doesn’t provide or cover. For example, there is some coverage for in-home care, but only when it comes to treatments for acute illnesses or injuries. In other words, preventive care and care for ongoing conditions, such as Alzheimer’s, are not covered. In addition, coverage for skilled nursing care such as room and board at assisted living homes is subject to a one-hundred day cap. In order to expand coverage, some people turn to private insurers to bridge the gap between their needs and the limited services that Medicare provides. Eventually, many individuals abandon Medicare altogether, pay privately, or shift into the Medicaid program.

Planning for health care as we age is incredibly important. After all, everyone wants to receive the best care possible without burning through all of their assets to finance it. That is where Elder Law Attorneys come in. Not only can they explain how to utilize Medicare properly, they can help clarify your financial future by developing an estate plan that incorporates your health care needs into it. Speaking with an Elder Law Attorney can help avoid unexpected out-of-pocket expenses and coverage gaps due to the limitations of Medicare.

Planning for Funeral Arrangements

Sure, many of us have planned a surprise birthday party for a friend or a surprise visit to our parents for the holidays, but have you ever thought about planning ahead for your funeral arrangements? While it is not nearly as entertaining, planning for funeral arrangements can be an empowering, comforting, and thoughtful gesture.

Planning of this type refers to the process when an individual works with a funeral director to ensure that arrangements for a funeral service and burial or cremation are in place. Many people elect to address this type of planning in conjunction with their estate planning. The Elder Law Attorney working on their estate plan can help clients understand how to fit funeral planning into their financial picture and discuss choices for funeral homes and payment options. Additionally, it may be wise to make sure the attorney references any planned funeral arrangements in the Will.

Funerals have developed a modern reputation for being very expensive. There are a few ways that people choose to pay for funeral arrangements. A common one is establishing a Trust with the funeral director (Minnesota does not allow this type of planning). Another option is to purchase a life insurance policy equal to the funeral costs and payable the funeral home. In either case, the money does not become available to the funeral home until after death. Additionally, the funeral contract may designate a transfer of the funds paid to another funeral home. Consider speaking with an Elder Law Attorney or a funeral director for more information about these payment methods or to learn about other choices available.

During planning, you have the opportunity to choose a venue, select specific hymns or songs, designate a casket, and add any other personal touches you desire. Some Minnesotan’s even go so far as to select the type of food they want served after the service. If you want to be a part of writing your final chapter, some individuals have contributed to their own obituaries as well. Perhaps you don’t want to control the arrangements, but you have a specific friend or family member in mind who you would like to do so. In such a situation, it is incredibly important to speak with an Elder Law Attorney so as to include those directions within a Health Care Directive.

Why might people want to plan their own funeral? Well, because if they don’t that means that their family or friends will have the task delegated to them. While funerals are inherently somber affairs, they represent an opportunity to plan a final celebration of your life. Who is better able to reflect upon your life and envision its celebration than you? Proper planning for end-of-life services can allow family members to grieve in a healthy manner. Proper planning also sets aside the costs for the funeral in advance so family does not need to find the funds to pay for the funeral upon your death.

For more information surrounding your rights in relation to funeral planning, visit the link below and review the Federal Trade Commission’s series of articles on “Shopping for Funeral Services”: https://www.consumer.ftc.gov/articles/0070-shopping-funeral-services

DNR/DNI Order

DNR/DNI stands for “Do Not Resuscitate/Do Not Intubate.” An individual’s wishes for DNR/DNI orders can be written in a Health Care Directive, a POLST form (Physicians Orders for Life Sustaining Treatment), or on a DNR/DNI order. If a patient chooses DNR, it means that in the event of cardiac arrest, medical staff will refrain from performing CPR. Similarly, DNI means that if breathing ceases, the doctor will not insert a breathing tube to provide oxygen. DNR/DNI orders can be tailored to personal preferences and wishes for acute and/or end of life care.

In Minnesota, paramedics responding to an emergency are required to attempt resuscitation unless a DNR/DNI order is present. Commonly individuals with chronic conditions or extreme frailty keep such orders on their refrigerator or have bracelets or necklaces indicating the existence of a DNR/DNI (called medical alerts or ID’s). For the DNR/DNI to be effective, a doctor must sign it. This means that a tattoo above your heart reading “do not resuscitate” is not enough! To obtain a DNR/DNI, either you or your health care agent must communicate with a health care professional.

Various reasons exist for considering a DNR/DNI order. Most commonly, such orders are put in place when a person is in the hospital or an assisted living facility. Individuals who suffer with chronic pain or other disabilities affecting their quality of life may prioritize a natural death over being revived. When an individual stops breathing on his/her own, the lack of oxygen to the brain can lead to a stroke or permanent brain damage. Electing DNR/DNI allows individuals to avoid potential complications from loss of oxygen and pass away peaceably. A DNR/DNI designation WILL NOT affect the fashion in which doctors apply other treatments and comfort measures, such as pain medication.

If you find yourself in a position where certain medical procedures are not desired, you should speak with your health care provider. Death is a very sensitive and challenging topic, but it is incredibly important to keep your family involved in your thoughts and feelings surrounding death so you do so on your own terms.

Power of Attorney

A Power of Attorney (POA) is a legal document that gives someone the ability to make financial decisions and enter into transactions on your behalf. In signing a Power of Attorney, you are considered the “Principal”, or the person granting the power. The person you designate to receive this power is considered your “Attorney-in-Fact”. This document is effective as soon as you sign it and places the Attorney-in-Fact in a position to act with the same power you have in regard to choices about your finances. These powers include but are not limited to the ability to withdraw money from an account, open or close an account, and to buy and sell possessions. The Attorney-in-Fact does not need your permission to exercise this power, but the Attorney-in-Fact does have a duty to act in your best interest.

Commonly, the Power of Attorney is considered “durable”. This indicates that it remains in effect if you become incapacitated. Intuitively, this makes sense, as the core function of a Power of Attorney is to allow someone else to make financial decisions for you when you can’t do so yourself. Mortgages, credit card bills, and taxes do not offer a grace period when you are unconscious in a hospital bed or otherwise medically unavailable. An Attorney-in-Fact can pay outstanding debts, sign checks, manage accounts/talk to banking institutions, and file your tax returns if such a situation arises. A common misconception about Power of Attorney documents is that an Attorney-in-Fact retains their power upon the death of the Principal. The power vested in a Power of Attorney is actually extinguished upon the death of the Principal.

Without a Power of Attorney, the court must select an individual to handle your financial interests through a process called a conservatorship. The court has its own standards for selecting a conservator, which may not reflect your personal feelings towards the individual’s financial prowess. The conservatorship process also comes with additional expenses that can be avoided by executing a Power of Attorney.

In Minnesota, a Power of Attorney can be created in two ways. The first is considered the Statutory Short Form Power of Attorney and the second is a Common Law Power of Attorney. The Statutory Short Form Power of Attorney is created by statute (Minn. Stat. § 523.23) and consists of a form that allows you to selectively grant certain powers to an Attorney-in-Fact. This form is often completed by checking boxes next to descriptions of certain powers to grant them to the Attorney-in-Fact. One benefit to using a Statutory Short Form Power of Attorney is that, if properly drafted, financial institutions are required by law to accept the document in all transaction indicated on the Power of Attorney. One disadvantage to this Power of Attorney is that gifting by the Attorney-in-Fact to the Attorney-in-Fact is limited annually to the Federal gifting amount, which in 2017 is $14,000 annually.

A Common Law Power of Attorney is different from the Statutory Short Form Power of Attorney in that the Common Law Power of Attorney has arisen through the court system and not through the legislative process as was the Statutory Short Form Power of Attorney. The contract between the Principal and the Attorney-in-Fact is not limited to the Statutory Short Form Power of Attorney. This Common Law Power of Attorney provides for easier asset preservation planning.

An Elder Law Attorney is a great resource to consult with when considering who to select as an Attorney-in-Fact and in deciding what powers to grant the individual.

What happens if I die without a Will?

There is a special legal term for when someone passes away without a Will. It’s called dying intestate. When somebody dies intestate, there is a standardized process by which the probate court distributes the deceased’s estate. This means that even if someone doesn’t undertake their own estate planning, the state has a default plan set out for them.

Every state has its own set of laws for how the estate’s assets are divided among survivors. The process begins with the court appointing an administrator called a Personal Representative (typically a spouse, adult child, or close relative) whose job is to determine the value of the estate’s assets and pay any outstanding debts and taxes. From there, the court divides the remaining funds and distributes these assets according to pre-determined percentages allotted by state law to the closest relatives.

In short, the goal of intestate distribution is to divide the assets in an objective and fair manner. Because there is no legal documentation of the deceased’s wishes, the court does not consider or speculate what he or she might have wanted. For example, if the deceased person felt strongly about the work of a particular charity and would have wanted to donate a portion of his or her estate to it, the court will not recognize such a desire without the direction of a Will. The court will not exercise discretion in favor of close friends, churches, or more distant relatives either. Normally, this means that all the decedent’s assets are passed on to a surviving spouse or children. In the age of blended families, this can be a challenging and at times, an unfair, process. If the person who passed away has no identifiable family members remaining, the assets will then go to the state through a process called escheat.

Dying intestate presents an even larger issue for families with children. Drafting a Will is one of the only ways a parent can legally designate who will be their minor child’s guardian if tragedy strikes. Many parents have a preference as to who this person would be, but without a Will the court will look to the next of kin to assume that role.

Dying intestate means that you are sacrificing the ability to control many different things. With a Will in place, the court and your family will be better prepared to distribute your estate in a manner that is consistent with the legacy you wish to leave behind. Consider speaking with an Elder Law Attorney to learn more about the estate planning tools that best fit your individual situation.

Medicaid in Elder Law

Medicaid is a government program that provides health coverage to low-income and disabled individuals. Even though they have similar names, Medicaid and Medicare are distinct from one another. For example, all people age 65 and older are eligible for Medicare, while only those with low-income and a limited number of assets may qualify for Medicaid. Funding for Medicare comes 100% from the federal government. However, each state develops its own Medicaid program following federal guidelines and splits their program’s costs with contributions from the federal government. As a result of this setup, the rules governing Medicaid differ from state to state.

According to a 2015 Star Tribune Article, Minnesota has surpassed one million Medicaid enrollees. This means that one in every five Minnesotans is now covered by public health care. In Minnesota, Medicaid is a jointly run federal-state program called Medical Assistance (MA). This large number may be attributable to the fact that Medicare DOES NOT cover long-term care facilities like nursing homes, which forces elderly individuals covered previously by Medicare to shift to Medicaid for coverage. Understanding how to qualify for Medicaid/MA and the role that estate planning plays in doing so is becoming more and more important.

The typical process for an individual to qualify for Medicaid involves two parts: medical and financial. On the medical side, a county employee who works for the applicant’s home-state Medicaid program evaluates the potential beneficiary’s medical situation. If the potential beneficiary meets the state’s standards for the minimum level of medical care needed, or if the potential beneficiary is already in a nursing home (a typical qualifier in most states), then the county employee signs off on the medical portion of the Medicaid checklist.

The financial side of qualifying for Medicaid can be a bit trickier. In most states, single recipients of Medicaid may have no more than $2,000 in assets to their name (In Minnesota the asset limit is $3,000). However, if there is a married spouse still living outside the nursing home or not receiving care funded by Medicaid, he or she is subject to an asset cap, as well. This cap is why it is crucial to discuss your situation with an Elder Law Attorney. Gifting your assets or transferring these assets to a trust in most cases disqualifies you from some or all of your potential Medicaid funding in Minnesota, even if your total assets are below the maximum value allowed in your state. There is also a five year look back period in the Medical Assistance application process.

An Elder Law Attorney who is versed in your state’s laws will know how to help you carefully begin to re-situate assets for a Medicaid application that will best preserve these assets for your future use.

What are the differences between a Will and a Revocable Trust?

Many people have heard of both Wills and Trusts, but do you understand what makes them distinct from each other? As with numerous estate planning topics, it is sometimes difficult to distinguish what the differences between the two are and when one is more appropriate than the other in your estate planning. Depending upon your individual situation, the combination of a Will and a Trust may be the best way to ensure that your assets are protected and transferred in the manner of your choice.

Wills and Trusts are both useful estate planning tools because they allow assets such as money and property to be transferred to other people or organizations. Perhaps the biggest difference between the two is the respective timelines for distribution of assets. A Will distributes your assets at your death. Trusts, on the other hand, can distribute assets before your death, upon your death, or even for a period of time after your death, depending on the language governing your particular trust.

Another major difference is the process under which a Will and a Trust distribute assets. Wills go through a court controlled process called probate, while Trusts generally operate outside of the court’s supervision. During the probate process, the court verifies the legality of the Will and oversees the distribution of the estate according to the written wishes of the deceased. From an economic standpoint, the creation of a Trust is more expensive initially, where probating a Will takes time and money later. If privacy is a concern, another difference is that the terms of a Will become public record, while Trust terms are not openly shared.

If properly drafted, Trusts generally do not go through the probate process. This is because the property that you transfer into a Trust becomes the property of the Trust itself, therefore, no longer being titled in your name. For example, a house that Jane Doe transfers into a Trust is subsequently owned by the Jane Doe Trust, not Jane herself. If the house was left in Jane’s name alone, the house would pass through probate and be directed by Jane’s Will. While living, Jane retains access to the house in the Trust as long as the trust parameters grant it to her. During the Trust drafting period, Jane determines how she wants house in the Trust to be used during her life, as well as how they are to be treated after her death by selecting beneficiaries to receive the house. When Jane passes away, with the house in the Trust, there is technically no change in direct ownership of the house. Through the use of specific distribution and beneficiary language, an Elder Law Attorney could counsel Jane on how to create a trust that allows the house to benefit numerous people for a period of time that extends beyond her own life. This is a unique concept created through Trust law, as a Will generally does not offer the ability to exercise long-term control after one’s death.

This information is meant to provide a quick and basic summary of Wills and Trusts. Despite being different from an operational standpoint, it is important to note that Wills and Trusts often work in tandem by holistically supporting the various goals of an estate plan. Each state has unique laws, and there are many different ways to implement Wills and/or Trusts into your individualized planning. Be sure to consult with an Elder Law Attorney to learn more about the options that best effectuate your wishes.

Capacity to Sign Estate Planning Documents

One of the largest challenges in the modern practice of elder law and estate planning consists of issues surrounding capacity to sign documents. Our population is living longer than ever before and we now have one of the largest senior populations of all time. This number is expected to exponentially grow as the Baby Boomers enter retirement and technology/ health care continue to advance. Some health care professionals see these factors coming together to create a potential “dementia epidemic”. For an Elder Law Attorney, it is important to create and execute legal documents before advanced health conditions affect an individual’s ability to understand what he/she is signing.

In deeming a person to be competent or to have capacity, lawyers and judges apply various legal thresholds on a case-by-case basis. Even though the specific descriptions of legal capacity vary from state to state, the typical requirement is that the person signing the instrument must understand the purpose of the document and be able to make a rational decision in regard to the document at the specific time they sign them. In the case of a Will for instance, a person should be able to understand generally what assets he/she owns and who would naturally receive these assets upon the person’s death. If a person lacks this generalized level of capacity, he/she may not be able to make a Will. The level of capacity is different for signing contracts, transferring property, getting married or divorced or even driving a car.

Those who have loved ones with Alzheimer’s or other types of dementia know that they go through good days and bad days. This is one of the most important areas of capacity to understand; it is not “all or nothing”. While bad days are expected in such situations, a person suffering from dementia or Alzheimer’s can still experience times of absolute clarity. Merely suffering from such a disease does not permanently take this person’s capacity to make legally binding decisions away from them. Therefore, a person may lack capacity to sign a document one day and regain lucidity another. In fact, in Minnesota an adult is presumed to have mental capacity until a court determines otherwise.

If you are in a situation where your loved one has diminished capacity and needs to sign estate planning documents, NEVER do so without consulting an Elder Law Attorney. An Elder Law Attorney has the knowledge and experience to work through such a situation in a way that is more likely to lessen the chance of litigation and avoid other legal pitfalls. If you have questions about your loved one’s capacity to move forward with the estate planning process, contact the office of a local Elder Law Attorney for information relevant to your particular situation.

What our clients are saying

Our affiliations