It may never seem like the right time to plan for the end of your life. But having a plan can give you valuable peace of mind. If you wait, you may have to scramble while dealing with medical issues that make it difficult or impossible to plan appropriately. Or you may leave your loved ones sorting through your affairs with few or no instructions. So when should you hire an elder law attorney?
There is no one right time to hire an elder law attorney. However, it is a good idea to speak with an attorney if you are approaching retirement age or have many assets or liabilities needing management. If you are considering hiring an elder law attorney, contact the Law Office of Andrew M. Lamkin. We can discuss your unique situation to help you start planning for your future. We focus exclusively on estate planning and elder law, so we can provide you with the knowledge and experience you need.
What Is an Elder Law Attorney?
Elder law attorneys help you plan for the end of your life and your affairs after you are gone. They also assist with the probate process. So, what does an elder law attorney do, specifically?
Probate
In legal terms, a person who has died is a decedent. If the person dies with a will, they are also known as a testator. Regardless of whether the decedent had a will, you typically go through probate court to administer the estate. Elder law attorneys generally represent estates of both kinds.
When someone dies with a will, you take that will to probate court to ask a judge to determine whether the will is valid. This process is known as probating the will. During the probate process, people can challenge the will’s validity. An executor manages the estate and distributes assets according to the will.
When someone without a will dies, their estate passes through intestate succession. The court appoints an administrator, typically a relative, to manage the estate. After satisfying debts, the administrator distributes assets according to the law.
Estate Planning
To maintain control over the process, you can hire an elder law attorney to assist you with creating a comprehensive estate plan. Typically, this involves creating a will, one or more trusts, or a combination of each.
Wills
An elder law attorney can guide you through drafting your will, ensuring it meets strict will requirements. With your lawyer’s help, you can clearly state whom you want to receive assets from your estate.
Trusts
Trusts are a flexible estate planning tool that allows you to set aside assets for particular purposes. The person who creates the trust is the grantor. The people or entities that benefit from the trust are beneficiaries. The people or entities that operate the trust are trustees.
Trusts are either revocable or irrevocable. The grantor retains the right to revoke a revocable trust but does not have the right to revoke an irrevocable trust after creation.
Trusts are also either living, also called inter vivos, or testamentary. A grantor funds a living trust during their lifetime. Testamentary trusts fund upon the grantor’s death.
Trusts allow you to take more control over the estate planning process. You can use them to bypass the time-consuming probate process, provide assets to loved ones that creditors cannot access, create a legacy to support causes you are passionate about, or protect your assets while qualifying for Medicaid.
Medicaid Planning
It is no secret that healthcare in the U.S. is expensive. Long-term care is no exception.
Many people know that to qualify for long-term care through Medicaid, you must have limited assets and income, and that Medicaid has a “look-back period” of five years. Under the look-back rule, the government looks at your asset transfers in the last five years. If you transferred assets away in those five years, you may have to wait for a penalty period before you can receive Medicaid.
This system has led to the popular belief that you have to spend down your assets to qualify for Medicaid. However, with careful planning, you may be able to protect your assets while qualifying for Medicaid.
You typically protect your assets by creating irrevocable trusts. The first type of trust is called a Medicaid Asset Protection Trust (MAPT). You can transfer your assets into a trust with limited control, allowing you to prevent them from being counted as assets. You can also create an income protection trust that automatically places a portion of your income into a trust.
Advanced Directives and Powers of Attorney
Part of planning for the future includes planning for what will happen if you can no longer care for yourself. Advanced directives, also known as living wills, and powers of attorney are common ways of setting out your wishes in advance.
In an advanced directive, you explain your wishes for your medical treatment in specific circumstances. Your advanced directive usually covers common potential medical treatments, like whether you want to receive antibiotics or undergo resuscitation.
Medical and financial powers of attorney operate the same way. You select someone you trust to handle your medical or financial affairs if you become incapacitated and can establish what their power encompasses.
Why Should I Hire an Elder Law Attorney?
Understanding what might happen if you do not hire an elder law attorney can be one of the best ways to see why you should hire an elder law attorney. If you do not hire an elder law attorney, you may leave your loved ones scrambling to try to manage your affairs should the worst happen. You may:
- Receive healthcare you would not have wanted;
- Have to spend tens of thousands of dollars on long-term care;
- Lose time and asset value to the probate process; or
- Have your assets pass to people not of your choosing.
If you hire an elder law attorney, however, you can:
- Lay out your healthcare desires in advance;
- Qualify for Medicaid;
- Protect assets from the probate process; and
- Direct where you want your assets to go.
Hiring an elder law attorney allows you to take control of your future.
When Should I Hire an Elder Law Attorney?
With many things to manage, we encourage people to hire elder law attorneys as soon as possible. Indeed, if you are wondering whether you need to hire one, you should consider it. Even if you do not feel elderly, you can start planning your estate by contacting the Law Office of Andrew M. Lamkin today.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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