Helena S. Mock, Esq.The Peninsula Center

for Estate Planning and Elder Law

Attorney at Law since 2000 B.A. in English, University of Maryland, Summa

Cum Laude (1992) M.A. in English Literature and English

Education, Old Dominion University (1996) Juris Doctorate, William & Mary Law School Accredited Attorney, Veterans Affairs

Administration Adjunct Professor, William & Mary Law School Member, National Academy of Elder Law Attorneys Member, Peninsula Estate Planning Council

Also called “Family Care Planning” Mission = to assist the senior and his family:

◦ Be able to make legal, financial and health care decisions without government or court intervention;

◦ Find, get and pay for good long term care;

◦ Prolong the senior’s stay at home;

◦ Protect the senior’s quality of life;

◦ Preserve assets and ensure they pass as desired when no longer needed

Disability Planning◦ Asset and Health Care Management

Long Term Care Planning◦ Home care, Assisted Living, Nursing home care

Estate Planning◦ Estate tax◦ Probate ◦ Protecting beneficiaries◦ 60-70% have no estate plan

Successful transition from capacity to incapacity◦ Continuing asset management through disability◦ Making appropriate health care choices

Successful transition from home to long-term care◦ Where will you live; what are your care needs◦ Having adequate funds to cover those needs

Successful transition from life to death◦ Appropriate arrangements for final resting place◦ Pass estate to those you choose◦ Pass estate at lowest possible cost & with minimal inconvenience◦ Pass estate with greatest possible speed

Durable Power of Attorney Medical Directive Living Will Guardianship/Conservatorship Wills Trusts Long Term Care Planning Options Government Benefits

What is it? A durable power of attorney (DPOA) gives another the authority to handle your legal and financial affairs.◦ Effective Now◦ Springing

Gives substantial power to your Agent. You must understand the power you are giving◦ Can be abused – be careful in selecting Agent

Is it Durable? Does it name Alternate Agent(s)? How old is it? Was it executed in Virginia? Does it address all issues your Agent may

face◦ Management of Retirement Plan Assets◦ Estate Tax Planning◦ Long-Term Care Planning◦ Obtaining Government Benefits

Living Will◦ Tells doctors not to use extraordinary measures if

you’re terminal; only pain medication & comfort care

◦ NOT a DNR

Medical Power of Attorney◦ Names a person to make health care decisions for

you when you cannot

How old is it? Was it executed in Virginia? Does it address HIPAA? Does it give your agent authority to make

long-term care arrangements? Does it provide a release of liability for

medical providers?

Guardianship - Ability to make residential, medical, educational and employment decisions for someone else

Conservatorship - Ability to make financial decisions for someone else

May need one or the other or both

If no Medical Power of Attorney or Medical Directive = guardianship over incapacitated person

If no Durable Power of Attorney, or if it’s not complete = conservatorship over incapacitated person’s income and assets

Incapacitated person has no one to make medical or financial decisions for her

Results in legal determination of incompetency

Court will appoint person or organization to handle incompetent person’s legal affairs and finances

Expensive and takes time to process Guardian must thereafter report to

Department of Social Services Conservator must thereafter make financial

report to court (called the “Annual Accounting”)

Annual surety bond usuallyrequired for conservatorship

What is it? A will directs:◦ To whom you want your property distributed

after your death (your “Beneficiaries”)◦ Who is responsible for settling your estate

(“Your Personal Representative”)

You must be competent and under no undue influence or duress to make a will

After death, the will must be probated

Probate is the process of administering estates in Virginia

Overseen by Commissioner of Accounts Requires filing of periodic reports

◦ Inventory◦ Annual Accounting

Fees and costs◦ Probate tax◦ Filing fees

12-36 months (or longer) Public Record No immediate access to

funds

A trust is An entity you create during your lifetime

It gives ownership of property transferred to the Trustee of the trust

The Trustee is required to manage and distribute the trust property according to the terms of the Trust Agreement

A trust may be revocable or irrevocable

Avoid probate and associated costs Provide for ease of administration Provide for a special needs or spendthrift

beneficiary Privacy Asset protection for surviving spouse &

beneficiaries Handle assets in other states Disability planning Estate tax planning for married couples Government benefits planning

Revocable vs. Irrevocable Trusts

◦ Asset protection trusts

◦ Special needs trusts

◦ Gifting trusts

◦ Life Insurance Trusts

When was it created? When was it last reviewed? Has your situation (family, financial)

changed since the Trust was created? Does your trust reflect recent estate tax

and Virginia law changes IS IT FULLY FUNDED?

Does it contain:

◦ Medicaid “Trigger” provisions?

◦ Long term care provisions?

◦ Trust Protector?

NOT RECOMMENDED

Internet materials are not reliable

Do-it-yourself programs all contain a disclaimer/release of liability

There is no one-size-fits-all document

Where should you keep your documents◦ Safe deposit box◦ Fireproof safe in home◦ Freezer

How often should you review your documents◦ Every 3-5 years, or◦ If there’s a change in circumstances; death; etc.

What your children need to know◦ Where your documents are◦ Who your advisors are

When should you talk with your children?◦ Parents don’t want to discuss◦ Children don’t want to discuss

Be proactive – you don’t want to have to think about these things when you need them; you just want them to work

DurableDurablePower of AttorneyPower of Attorney

Estate PlanEstate Plan

Revocable TrustRevocable Trust

Pour Over WillPour Over Will

Trust FundingTrust FundingHealth Care Health Care DocumentsDocuments

Want to leave an inheritance for the children

Want to stay at home for as long as possible Do not want to be a burden for the children Do not want to enter a nursing home

Medicare: limited coverage of skilled nursing home care

Long Term Care Insurance Private pay (estimate $6,500 per month) Medicaid: full coverage of long term

assisted living and nursing home care expenses, prescriptions; limited assistance with home health care costs

What is it? Insurance which typically can provide some / full payment toward home health care, assisted living care, and nursing home expenses

Where does it come from? True insurance, purchased as a stand-alone policy from insurance companies

What is it not? Not your Medicare supplement.

Decide before you shop about what your general policy needs are

Find a broker who can offer multiple policies Set several policies side by side on the

kitchen table See your elder law attorney with questions

regarding policies

Every plan must be tailored to the individual situation, needs and goals

See an elder law attorney when you become concerned, before the loved one enters nursing home

You don’t have to be impoverished to qualify for Medicaid (if married)

Do not transfer assets to qualify for Medicaid (without knowing what you are doing or without seeing an elder law attorney)

Everyone should plan for their own potential disability with◦ Durable Power of Attorney◦ Living Will / Medical Power of Attorney

Everyone should plan for their own death with◦ Living Will◦ Will◦ Trust

All should consider long term care planning options

All should maintain open communication with children about what you want

This presentation is not intended as a substitute for legal advice. It is for basic educational purposes only and made with the understanding that if you need legal advice, you will seek the services of a competent Elder Law attorney. While every precaution has been taken to make this presentation accurate, we assume no responsibility for errors or omissions, or for damages resulting from the use of the information presented.

THE PENINSULA CENTERFor Estate Planning & Elder Law

We’re here to help you.