Chances are you know someone with special needs or know someone who has a family member with special needs. Such special needs can arise due to a mental or physical defect existing at birth or an injury occurring later in life due to an automobile accident, drug and/or alcohol abuse, injury on the job (including an injury suffered while serving in the military), or the onset of dementia.
Disabled Americans have access to several programs providing both emotional and financial support to help them and their families thrive. When you have a disabled person in your family, it is important to make sure that your own estate plans are crafted in such a way so that the disabled family member continues to have access to all such support programs.
Special Needs planning often includes protecting assets for the benefit of loved ones, who, for whatever reason, are not able to manage an inheritance properly OR would be negatively affected by the direct receipt of an inheritance.
A Wife with Dementia
A husband might come to see me if he is worried about his wife. She has been having some memory issues and is no longer able to manage money on her own. He and his wife have had several wonderful years together and he wants to make sure that her needs are met after he’s gone, but if he were to pass away first, what would she do with the family savings? Who will make sure the money is used properly for her care? Who will protect the assets from future long-term care costs?
A Paralyzed Son
A mother might come to see me if she is worried about her son. Her son was injured in a car accident a few years ago, which left him partially paralyzed. She has been taking care of him since the accident, but realizes that there may be a time in the near or distant future, when she cannot care for him like she is now. The mother wants her son to inherit from her, just as her other children will someday, but she also wants to make sure that he continues to enjoy the same governmental support that has helped them both cope since the accident. Who will take care of him after she’s gone? Who will make sure his inheritance from her is used properly for his care? Who will protect the assets from future long-term care costs?
An Autistic Granddaughter
Grandparents might come to see me if they are worried about their young granddaughter’s health care needs. Recently diagnosed with Autism, their oldest granddaughter’s future ability to manage her own health care decisions and finances is unknown. The grandparents want their children to inherit equally, but also want to make sure that if their granddaughter inherits directly from them, that their granddaughter’s inheritance is managed by someone that they trust. They want to make sure the funds are used specifically for her education and health care needs and NOT on frivolous things. If their granddaughter is already receiving governmental benefits, they certainly do not want to disrupt that!
Without proper planning in these situations, special needs beneficiaries (like the wife, the son, and the granddaughter, above) would likely NOT be entitled to as many support programs as they would otherwise receive. If ineligible due to poor planning (or no planning), the burden for providing equivalent services would fall to family and friends. Most clients want far more control over their futures and want to ensure that they do not become burdens on their family and friends.
If you or someone you know has a family member with special needs planning or special needs trusts, please have them reach out to us. Together, with proper insight and planning, we can minimize the strain that a special need might otherwise have on the family’s mental health and finances. We are your lawyers, every step of the way.
When people ask me what area of law I practice, I tell them that, among other things, I practice Elder Law. That response often has me answering a follow-up question: “What is Elder Law?” The definition that I have carefully chosen to give in response focuses on empowerment. I help older adults proactively manage their futures.
When people envision growing older, some may look forward to retirement—traveling, spending time with grandkids, focusing on old hobbies or taking up new ones. They have a clear picture of independence—a joyous graduation from the daily grind they remember from their working years, raising children. However, that clear picture may be dulled by a fear that such independence may be short-lived, as the loss of physical mobility, mental sharpness, sight or hearing may require dependence on others to get by. There are cartoons that poke fun at old age, likening it to a reversion back to infancy, when we were all entirely dependent on caregivers.
While we did not have much control over who our caregivers were as infants, as adults facing the POTENTIAL future need for assistance from others, we certainly DO have the power to choose NOW. As an Elder Law attorney, I draft legal documents in which my clients choose WHO has the authority to help them with future potential needs, WHEN that authority will become effective, and WHAT decisions the chosen individuals will be allowed to make.
Durable Power of Attorney
A Durable Power of Attorney (or DPOA, for short) is the document signed by a client that designates an agent (called an Attorney-in-Fact, or AIF, for short) to help the client make legal and financial decisions. The document can be drafted to allow the agent to be able to help immediately or only upon the incapacity of the client. The document can be drafted to be very wide in scope, allowing the agent to help the client with just about anything OR can be limited to just a few certain transactions.
Health Care Power of Attorney
A Health Care Power of Attorney (or HCPOA, for short) is the document signed by a client that designates a series of agents (called health care agents or healthcare proxies) to help the client make health care decisions. The document generally takes effect only upon the client becoming unable to make sound healthcare decisions for him or herself. The client, however, can choose what health care decisions the agents or proxies can make in the client’s behalf. A well-chosen health care agent should be a person you trust, who KNOWS your health care issues and concerns, and is willing and able to follow your wishes. The health care agent or proxy may be called upon to make end-of-life decisions for you, so it is important that you trust your agent enough to discuss your feelings regarding end-of-life openly and honestly.
If you are not blessed with family or friends you trust enough to help you with legal, financial, or health care decisions, or you never sign a Durable Power of Attorney or Health Care Power of Attorney granting them the authority to assist you, the court system does have a procedure for appointing an individual to help you if you are found to be unable to help yourself. This procedure involves an interview by a representative of the court system, who helps the clerk of court determine if you are incompetent. If you are determined to be incompetent, it is the clerk of court who decides who will assist you with health care decision (called a Guardian of the Person) and who will assist you with legal and financial decisions (called a Guardian of the Estate). The clerk can only choose among the individuals who have applied to be Guardian…or if no one has applied, the clerk can choose a governmental agency (like the Department of Social Services or the Public Administrator for the county) to serve as Guardian.
Being a rather independent person myself, I tend to encourage my clients to name Attorneys-in-Fact or Health Care Agents themselves, if at all possible. Signing such forms is one of the simplest and quickest ways to take charge of your own future. At some point, we all may need a little help from friends and family. Why not choose who those friends and family will be? Just like the attorneys at Coltrane, Grubbs & Orenstein, those attorneys-in-fact and health care agents will be with you, every step of the way.
While most people DO get together with their families for at least one of the upcoming holidays, it is rare that the PLANNED discussion involves estate or long-term care planning. However, I have found in my years of practice, that while these discussions are not usually planned, they often occur nonetheless, rather spontaneously. There are excellent books and articles published about HOW to go about starting such conversations… but I honestly doubt that most such conversations start the way they are planned. Corresponding to these family discussions (whether planned or spontaneous), my estate planning practice usually increases during the holiday season.
Long-Term Care Planning
It is during these family gatherings that the needs and desires of family members come to the forefront. Perhaps you talk to your mom or dad frequently over the phone, but will not see him or her until a holiday gathering is upon you. It is only then that you really see how your mom or dad’s physical, emotional or mental condition has changed since the last time you met face to face. It is often, during the weeks and days surrounding such family gatherings that doctors’ visits or legal consultations are scheduled. The children may initiate these visits out of concern… or the parents’ may initiate these visits while they have family in town who can drive them to appointments and can keep them company at such appointments.
Powers of Attorney and Living Wills
Perhaps you are waiting until a family gathering to discuss roles some family members may play in your estate and long-term care plans. An elderly client might choose to pull aside a son and daughter to discuss naming them as Attorneys-in-Fact in a Durable Power of Attorney or as Health Care Agents in a Health Care Power of Attorney. A young parent may pull aside his or her brother, sister, mom or dad, to discuss with them the possibility of serving as their minor child’s guardian or trustee. And while it is generally no one’s idea of happy mealtime conversation, it is often during such family gatherings that candid commentaries regarding end-of-life care are made. Some commentary may be made with heartfelt sincerity, while other commentary may be made in jest to lighten the mood. Most of my clients’ views on end-of-life decision-making stem from their own recent personal experiences regarding the end-of-life care of a close family friend or relative. While such discussions may start out being very public (around the dinner table or in the driveway), they do often spur insight and more private discussions with the family and friends you choose to be involved in such decision-making for you.
Last Wills and Testaments
Such gatherings also usually bring to mind the family members who may not be present this year. Such family members may be absent due to death, illness, estrangement, or merely relocation for a new job, school or marriage. Talk of such family members may bring to mind just how your family dynamics have changed over the years and what changes may need to be made to your estate plans to reflect the current dynamics. The sister you had previously selected as your Executor may not be able to serve due to illness. The brother and sister-in-law you had previously selected to be the guardian of your children may have gotten separated or divorced. The spouse you had previously selected to receive your entire estate may have developed dementia and may not be able to manage the inheritance he or she may receive from you. In any event, such discussion should spur you to revisit your current estate planning and long-term care planning documents to see if they will serve you as they are currently drafted.
Another Set of Eyes and Ears
Many of my clients wish to amend their estate plans during the holidays because they have family and friends around to review the documents with them. It is not uncommon for a client to bring his or her children, siblings, or friends along for the estate planning appointment. These “guests” offer another set of ears to hear the questions asked and the answers given, but also even serve as scribes, writing down information that may need to be gathered. With the permission of the client, these guests may also ask their own questions to help them better understand the discussion or to bring up a question that the client may be too embarrassed to ask.
If family discussions this holiday season steer you and your loved ones to revisit your current estate plans, then please do not hesitate to give us a call. As your needs change, as your family dynamics change throughout the course of your lifetime, we are here to help you plan accordingly. We are your lawyers, every step of the way.
As an Elder Law attorney, it is rare that my clients show up alone. Most have family members (usually their adult children) along, who are there to offer emotional support, moral support, and, often, a safe ride to and from the appointment. The adult children who show up are usually quite intricately involved in their parent’s long term care planning and estate planning. If you are that adult child, you may have legal questions of your own to ask. Shouldn’t you be included in the legal consultation? After all, isn’t it important that you understand the role you may be playing in your loved one’s future?
Please Don’t Be Offended!
There are several reasons why an Elder Law attorney needs to meet with her older adult client one-on-one for at least part of the legal consultation. So please don’t be offended or surprised if you are politely dismissed from the room. In order to stay compliant with the rules and guidelines of the State Bar, attorneys must ensure that proper client protections are followed. Before real legal advice should be given out, the attorney must to do the following things: 1) identify the client; 2) uncover any potential conflicts of interest; 3) protect confidentiality, and 4) determine competency.
Attorneys must make VERY clear to the entire family–who IS the client and who is NOT the client. The “family” or the “situation” cannot be the client. The client is the individual whose interest are most at stake in the legal planning or legal problem. The client is the one—the only one—to whom the attorney has professional duties of competence, diligence, loyalty, and confidentiality. This is especially important in Elder Law, because adult children may be VERY involved in the legal concerns of the older adult and may even have a stake in the outcome. While it is possible, in some circumstances, for an attorney to represent two clients at once (most commonly, a married couple), it is quite rare. By the end of the consultation, the attorney should identify and confirm for ourselves and for all others present, that our client is the older adult… and ONLY the older adult. This is true regardless of who drove the car to get here, who made the appointment, and who wrote the check for the consultation fee.
Conflicts of Interest
Attorneys must actively avoid conflicts of interest. This means that in most situations, an attorney will usually only have one client in a transaction. Often, parents and children will have different interests in the outcome of a situation. It may be in the best interest of the child for the parents to gift them large sums of money or real estate. However, it may not be in the best interest of the parents to make such large gifts and threaten their own financial security and ability to provide for their own long term care. An attorney could not represent both the children and the parents in this situation. Sometimes joint representation is possible, even with potential conflicts of interest, but it is more likely that we will be representing only the older adult whose interests are at stake. I do the best job for the older adult client by representing only him or her. This is especially true if my client wants to discuss a power of attorney, a last will and testament, or planning for long term care.
Attorneys have an obligation to keep information and communications our clients share with us confidential. That means that we cannot share client information with other family members without the client’s approval. Some clients want all information shared and family member actively involved in discussions; some merely want family members to be given general updates; and some want complete confidentiality. A client may not feel comfortable expressing his or her desires regarding confidentiality when others are in the room for fear that they will offend their loved ones. In all cases we strive to keep our clients—and whomever they choose to involve—fully informed of the issues, options, consequences, and costs relevant to their concerns, and to be responsive to their goals and objectives.
Elder Law attorneys often work with clients whose capacity for making decisions may be diminished. Attorneys must treat clients with diminished capacity with the same attention and respect to which every client is entitled. This means meeting privately with the client and giving him or her enough time to explain what he or she wants. We find that the greater majority of older adults who come for legal consultations are able to tell us what the problem is and how we can help. Sometimes we’ll need to ask relatives for details such as addresses or dates or phone numbers, but even people in the early stages of dementia can usually communicate well enough to give us direction. Assessing a client’s capacity to make decisions is part of our getting to know the client. While most clients can explain a problem and discuss concerns and issues, there will be some clients who cannot. Speaking privately allows us to find this out. When family members answer ALL the questions, it makes it difficult for us to determine our client’s level of understanding.
Meeting one-on-one with our clients is essential to making sure that we are protecting our clients’ best interests. Most of the family members and friend who arrive with a client understand the importance of that one-on-one consultation and, when asked to wait in the lobby, do so willingly and respectfully. They know that family and friends who maintain some distance from the legal counseling and document signings are far less likely to be accused by other family members of undue influence. We don’t want our clients’ choices, and the documents they sign, to be undone one day in the future because we allowed family members to be too involved in the consultation and the legal process. That’s a court case we (and you) would rather avoid.