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
Don’t put off authorizing the persons you would rely on in the event of incapacity. If you do not take the legal steps to do so, the only available option is probate court appointment of a guardian and/or conservator. The probate court will need to hold a public hearing to decide whether your are legally incapacitated and if so who should be appointed as your guardian or conservator. From that point on all your property will be under court supervision and control. All medical and legal decisions will be made by your guardian or conservator. Costs of these actions, including attorney fees 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 your 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 cannot address many issues of aging. For example, a child joint owner can pay a bill that the parent incurs, but the child does not have authority to contest any item in the bill. Having a joint on an account does not give the child authority to contest bills and charges. It gives the child no authority to act for you. In addition the account can cause probate estate court battles upon death. If you intend your account be distributed upon death to all family members the joint owner may keep everything. Your Will is not effective in this case and a costly Will contest may ensue.
Get Your Legal Affairs In Order
In my opinion every Elder should have: a complete general durable power of attorney; Healthcare Power of Attorney and HIPAA Authorization; Advance Directive; and a Will or Living Trust.
The general power durable power of attorney allows your named agent(s) to act for you at any time you wish or need. That includes asking for clarification of charges and contesting for questionable bills and charges. And your “agent” can take care of any legal business you may have. Please note however that federal programs such as Social Security of the federal tax agency Internal Revenue Service have their own forms before they will speak with anybody but you.
The Healthcare Power of Attorney should be tied with a HIPAA Authorization and an Advance Directive. If so your chosen “patient advocate” can act for you when want or need. Note that these powers of attorney are “durable” which means your agent can act for you even if you are incapacitated. With the needed authority your agent can receive confidential medical information and take action for you in all medical matters, in accordance with your instructions. The advance directive applies to end of life healthcare treatment decisions when you cannot speak your instructions. Note we recommend you present your medical providers with these medical powers in advance so that in case of emergency there are no problems with “confidential patient information.”
Note for information on Living Trusts see our page “FAQ: Revocable Living Trust here
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.
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 members are often the Number One Heros who enable parents to live independently in their own homes.
And, but: Caregivers who forego employment to assist parents often run into serious financial difficulty. They may put pressure on a grateful, but “incapacitated” 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 and no matter the financial sacrifice of the caregiver. And note, other family members may expect the caregiver to serve for “love and affection” not money. If you ever need help from the Michigan Medicaid program, that one too presumes caregivers act for free no matter the personal and financial strain. It is better to have a “personal service contract” from the outset so that compensation issue is settled. For more information see our articles on personal service contracts here and here.
Check Out Veterans Benefits
It almost goes without saying that if you have been in military service you should be familiar with veterans benefits. For veterans who served in time of war the VA Aid Attendance and Improved Pension benefits are available to qualifying wartime veterans or surviving spouses who need assistance with activities of daily living. Read more about it on the VA webpage here
Consider Planning for Potential Long Term Care
We recommend making a careful consideration of possible long term care. (LTC) It is simply unaffordable. Medicare does not pay for “long term care.” According to the Genworth Cost of Care Survey in 2025 the national “mean” cost of assisted living facility was $74,400. The national cost for nursing home was $129,575. In Michigan the Michigan Department of Health and Human Services has determined the average cost of a Michigan nursing home in 2026 is $12,216 per month or $144,592 per year!
When it comes to dealing with and putting together long term care services, a care Geriatric Social Worker (GSW) is the professional you want and need. These social workers know who are the good and trustworthy providers. Remember just because Medicare will pay an agency for part time care, that does not mean the healthcare agency provides good service. If your are in Southeast Michigan I strongly recomend that you visit the website of the Geriactric Social Workers for Southeast Michigan at www.gswsm.org
Medicare does not pay for long term care. The Medicaid programs do cover long term care both in a nursing home and in your own home. It covers in-home assistance through the “MI Choice Waiver” program. All Medicaid long term care programs have a five year “look back” determined at the time of 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 for care. 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?”
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 and are often not licensed. It is legal to have an unlicensed facility. That means the State of Michigan does not inspect them to determine if they are meeting care requirements. Nursing homes are licensed and inspected and provide Medicare covered “skilled care.” Medicare will pay for “skilled care” up to,100 days of post-hospital skilled care but few get the full 100 days. Medicaid will pay for long term “custodial care” in a nursing home provided that the patient is in a “Medicaid certified bed.” Note not nursing homes that provide Medicare covered post hospital “rehab are” have “Medicaid certified beds” That does mean if a person is transferred to a “rehab” facility after a hopital stay, Medicare will pay for up to 100 days of skilled care. Some such nursing homes have either no “Medicaid certified beds” or have very few. That means that after the Medicare skilled care ends the bed is private pay. And that means the patient must be transferred to another nursing home where the care may not be satisfactory and the location too far for family to visit daily.
Be Prepared for Whatever Life Brings – See an Elder Law Attorney
We recommend hiring an experienced Elder Law attorney to consult with and draft your complete “estate plan” in accordance with your instructions and to recommend the steps to take to complate your estate plan. You can call us for a referral at 248-356-3500.