Aging Elder Tip Sheet – 2026
Taking proactive steps before incapacity arises can save you and your family grief and expenseby Jim Schuster, Certified Elder Law Attorney |
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Don’t do Nothing
You cannot make legal decisions for parents without their permission. If your parent suffers incapacity and has not given you authority to act then the only you can get the authority is through “living probate”. The probate court will need to hold a public hearing to decide whether your parent is legally incapacitated and if so who should be appointed as guardian or conservator. It may not be you. From that point on all of the parent’s property will be under court supervision and control. Costs may run into the thousands of dollars. That is an entirely needless loss of control, privacy and money. Elder law planning will not only avoid this fate but put you in a better position with more options to save money and retain family control.
Watch out for Joint Account Pitfalls
Parents often add children to bank accounts so that the children can pay bills in case of incapacity and the account can avoid probate on death. In general joint accounts do avoid probate but can cause many problems. Being joint on a parent’s bank account merely gives authority to access the account. It does not give authority to act for a parent. For example, a child joint owner can pay a bill that the parent incurs, but the child does not have authority create the bill. For example, being joint on an account does not give the child authority to sign a contract. In addition the account can cause probate court battles if the account is not distributed according to a parent’s last Will and Testament.
Get Legal Affairs In Order
Every aging person should have their affairs in order. They need to have an up to date Will, complete durable power of attorney, healthcare power of attorney and advance directive. The Will dictates how the property should be shared upon death. The healthcare power of attorney allows a patient advocate to receive confidential medical information and make decisions for the parent as patient. The advance directive designates a patient advocate gives instruction on end of life healthcare treatment decisions. We recommend all health related documents – powers of attorney etc. – be presented to the provider in advance so that in case of emergency there are no problems with “confidential patient information.” In addition an estate plan may not be complete without a trust or a quit claim deed and coordination of all beneficiary designations on accounts and insurance contracts. An Elder Law attorney should be consulted to determine what documents will be needed to complete an elder’s estate plan.
Caregiving Can Lead to Complications
If one picks up an article on financial elder abuse, one will read that family members are the number one abusers. The truth is family caregivers may keep a parent out of a nursing home. Caregivers who forego employment to assist parents often run into serious financial difficulty. They may turn to a grateful, but “incompetent” parent for financial help. Taking money from an elder under these circumstances can be a crime against a “vulnerable adult.” The law presumes that a child caring for a parent does so for free – no matter how valuable the service is. It is better to have a “personal service contract” from the outset so that compensation is settled. The contract should identify the need for the services provided supported by the doctor’s recommendation and include a record of services performed. There should be a family meeting so that all family members are “on board.” Otherwise children may hire attorneys and “fight it out in court.” You can read more on “personal service” contracts here and here.
Check Out Veterans Benefits
The Improved Pension benefit is available to active duty wartime veterans or surviving spouses who need assistance with activities of daily living. Read more about it here
Take Advantage of Medicaid’s Five Year Lookback
Medicaid, the nursing home payment program and in-home assistance “MI Choice Waiver” program, looks back five years prior to application. Any money or property “divested” or “transferred for less than fair market value” within this period will need to be paid back or experience a “penalty period” before Medicaid will pay the nursing home. However, any transfers more than five years are not considered by Medicaid. Some Elder Law attorneys recommend transferring assets to a “Medicaid Asset Protection Trust” so that in five years you can save your assets and qualify for Medicaid. For more information see my article “Medicaid Asset Protection Trust. Right for You?”
Avoid Probate Wisely
There are many schemes to avoid probate that backfire. A poorly written will can guarantee not only probate but an inheritance battle. Joint owners on property may not agree to share with all children and fight it out in court. A poorly drafted quit claim deed can cause serious property tax problems.
Nursing Home
A nursing home is inevitable for some elders. Nursing homes are state licensed and regulated medical facilities. “Dementia care” assisted living facilities are not nursing homes. Nursing homes are very expensive – the state average is over $12,200 a month. Medicare will pay for “skilled care” up to, but most often way less than, 100 days of post-hospital care. Medicaid will pay for long term care in a “Medicaid certified bed.” which are found in almost all nursing homes. Some nursing homes limit the number of Medicaid certified beds. They do this by having beds that are only certified for Medicare payment. After the Medicare skilled care ends the bed is private pay.
Be Prepared for Whatever Life Brings – See an Elder Law Attorney
All of the above expensive problems can be avoided if the elder and assistants get timely advice and get affairs in order. Do it now for there will come a day when it will be too late. You can call us for a referral at 248-356-3500. Please leave a message if we do not pick up. We Will call back.