The Law Offices of The Law Offices of Chester B . McLaughlinChester B . McLaughlin4545 East Shea, Suite 4545 East Shea, Suite

173173Phoenix, AZ 85028Phoenix, AZ 85028

(602) 494-8022(602) 494-8022

CRITICAL LEGAL PLANNING CRITICAL LEGAL PLANNING FOR ELDER PATIENTS FOR ELDER PATIENTS WITH MEMORY LOSSWITH MEMORY LOSS

ROLE OF THE ELDER LAW ROLE OF THE ELDER LAW ATTORNEYATTORNEY

Elder law addresses the legal issues Elder law addresses the legal issues related to the health, finances and well related to the health, finances and well being of the elderly, with a particular being of the elderly, with a particular focus on public benefits and issues of focus on public benefits and issues of incapacity. An elder law attorney incapacity. An elder law attorney should have a knowledge of long term should have a knowledge of long term care issues, Social Security, elder care issues, Social Security, elder abuse, exploitation, guardianship and abuse, exploitation, guardianship and conservatorship and estate planning.conservatorship and estate planning.

Differences Between Elder Law Differences Between Elder Law Attorneys and Estate Planning Attorneys and Estate Planning

AttorneysAttorneys Focus on elderly client Focus on elderly client

populationpopulation Middle class clienteleMiddle class clientele Public benefits focus Public benefits focus Focus on incapacity/Long term Focus on incapacity/Long term

carecare Probate court litigationProbate court litigation

Critical Planning Issues for Critical Planning Issues for Individuals with a Diagnosis of Individuals with a Diagnosis of

Memory LossMemory Loss

Planning ahead is absolutely Planning ahead is absolutely necessary: capacity is required.necessary: capacity is required.

Managing financesManaging finances

MANAGING FINANCESMANAGING FINANCES

If someone is not legally appointed If someone is not legally appointed to manage the finances of the to manage the finances of the person with memory loss then person with memory loss then there is no one available to pay there is no one available to pay bills and their investments and bills and their investments and other assets will not be properly other assets will not be properly managed.managed.

MANAGING FINANCES MANAGING FINANCES CON’TCON’T

Common Oversights:Common Oversights:– Assets which are titled solely in the Assets which are titled solely in the

name of the person with memory name of the person with memory loss.loss.

– Assets held in joint tenancy that Assets held in joint tenancy that require both signatures in order to be require both signatures in order to be sold.sold.

– Filing income tax returns for a Filing income tax returns for a married couple.married couple.

MANAGING FINANCES MANAGING FINANCES CON’TCON’T

Planning Around the Problem of Planning Around the Problem of Managing Finances:Managing Finances:– Financial Power of AttorneyFinancial Power of Attorney– Living TrustLiving Trust

MANAGING FINANCES MANAGING FINANCES CON’TCON’T

Preventing Financial Exploitation or Preventing Financial Exploitation or Misuse of Funds:Misuse of Funds:– Introduction to Problem- Persons with Introduction to Problem- Persons with

memory loss are an easy target for memory loss are an easy target for financial exploitation.financial exploitation.

– Solution to Problem- The best way to plan Solution to Problem- The best way to plan ahead in an attempt to avoid potential ahead in an attempt to avoid potential exploitation is to do a trust. In some exploitation is to do a trust. In some cases a conservatorship may be required.cases a conservatorship may be required.

MANAGING FINANCES MANAGING FINANCES CON’TCON’T

Medical Decision Making:Medical Decision Making:– Oversight- Many people think that Oversight- Many people think that

because there is a surrogacy statute because there is a surrogacy statute in the law that designates a in the law that designates a responsible party to make medical responsible party to make medical decisions, there is no real need to decisions, there is no real need to appoint someone in advance.appoint someone in advance.

MANAGING FINANCES MANAGING FINANCES CON’TCON’T

Reasons why not having a health care Reasons why not having a health care power of attorney is a problem:power of attorney is a problem:– The incapacitated person loses the right to The incapacitated person loses the right to

choose;choose;– Children may have to vote to decide;Children may have to vote to decide;– The default decision maker is a doctor;The default decision maker is a doctor;– A loved one cannot authorize the withdrawal A loved one cannot authorize the withdrawal

of a feeding tube unless they are the agent of a feeding tube unless they are the agent or the living will authorizes the withdrawal;or the living will authorizes the withdrawal;

MANAGING FINANCES MANAGING FINANCES CON’TCON’T

– A loved one cannot admit an A loved one cannot admit an incompetent person to a psychiatric incompetent person to a psychiatric hospital except in an emergency hospital except in an emergency unless there is specific authority in unless there is specific authority in the power of attorney;the power of attorney;

– A surrogate can only make health A surrogate can only make health care decisions.care decisions.

MANAGING FINANCES MANAGING FINANCES CON’TCON’T

Reasons why not having a living will Reasons why not having a living will is a problem.is a problem.– There is less assurance that the There is less assurance that the

person’s wishes will be carried out.person’s wishes will be carried out.– Unless there is a health care power of Unless there is a health care power of

attorney, a feeding tube cannot be attorney, a feeding tube cannot be withdrawn unless the living will withdrawn unless the living will specifically authorizes it.specifically authorizes it.

– A living will helps alleviate guilt.A living will helps alleviate guilt.

Passing Assets on DeathPassing Assets on Death

Why Plan Ahead?Why Plan Ahead? Law of intestate succession is Law of intestate succession is

sometimes unfair.sometimes unfair. Joint tenancy with children can be Joint tenancy with children can be

problematic.problematic. Trust funding may not be Trust funding may not be

completed.completed. Need to do estate tax planning.Need to do estate tax planning.

PASSING ASSETS ON PASSING ASSETS ON DEATH CON’TDEATH CON’T

Need to plan for children with Need to plan for children with problems.problems.

Don’t want person with memory loss Don’t want person with memory loss to inherit from healthy spouse.to inherit from healthy spouse.

Want to preserve family home from Want to preserve family home from ALTCS estate recovery.ALTCS estate recovery.

Need to select person in charge: Need to select person in charge: trustee or personal representative.trustee or personal representative.

Paying for Long Term Paying for Long Term CareCare

Issues requiring advance planning:Issues requiring advance planning: Transferring/gifting assetsTransferring/gifting assets ALTCS Resource AssessmentALTCS Resource Assessment Long term care insurance for healthy Long term care insurance for healthy

spousespouse Placement concerns related to ALTCSPlacement concerns related to ALTCS Altering couple’s estate planAltering couple’s estate plan Transferring assets to healthy spouseTransferring assets to healthy spouse

PLANNING FOR THE PLANNING FOR THE SPOUSESPOUSE

Planning for the spouse of the Planning for the spouse of the person with memory loss- It is person with memory loss- It is important for the planner to important for the planner to recognize that the issues facing recognize that the issues facing the person with memory loss will the person with memory loss will also impact other family members also impact other family members and in particular the spouse.and in particular the spouse.

PLANNING FOR THE PLANNING FOR THE SPOUSE CON’TSPOUSE CON’T

Don’t name the person with Don’t name the person with memory loss as decision maker.memory loss as decision maker.

Prevent loss of ALTCS eligibility Prevent loss of ALTCS eligibility due to ALTCS recipient inheriting due to ALTCS recipient inheriting from the healthy spouse.from the healthy spouse.

CONCLUSIONCONCLUSION

The little headache that the The little headache that the planning causes will prevent a much planning causes will prevent a much larger headache in the future.larger headache in the future.

Plan ahead to save:Plan ahead to save:– TimeTime– MoneyMoney– AggravationAggravation