Estate Planning?
When many people retire they often engage an attorney to “get their affairs in order” and do their “Estate Planning.” They imagine a long, leisurely retirement followed by a quick passing. And so the question presented is “Should you have a Will or a Trust?” I call this the “death and taxes” approach to estate planning. There is much more to consider about living in retirement than choosing between a Will or a Trust. Please note here we will not consider special powers of attorney for taxes and other matters.
The Elder Law Imperative: Stay in Control
Life rarely goes according to plan and that is where Elder Law comes in. It expands on traditional estate planning by providing the tools to navigate the actual challenges of aging. It is surprising how many people remain unprepared for the realities of their later years. Here we will provide some information you surely will find useful.
General Durable Power of Attorney
If you or your spouse should need a nursing home level of care in later years, a Durable General Power of Attorney will be essential to securing long term care benefits from Medicaid. Medicaid requires “spend down” of assets before a person will be eligible. This is a complicated process that we cover elsewhere. See our Medicaid Planning page here.
Healthcare Power of Attorney
Perhaps the single most important legal document we need in our later years is the Healthcare Power of Attorney. It also ranks as the most misunderstood. Do a web search on “healthcare power of attorney” and you will be informed that you must be “incapacitated” before your agent can help. That is only true if you have a “springing” power of attorney which means it becomes effective only if you are incapacitated. See our page “FAQ: Healthcare Power of Attorney” here. An Elder Law attorney will always draft powers of attorney that are immediately effective. That way your agent can help you at any time you wish. Have a question for your doctor? Your healthcare agent can take care of that if you wish. Health Insurance denies a claim? Your healthcare agent can investigate and present more information if needed. If the company will not agree with your doctor’s recommendation your agent can handle the appeal, if you wish.
HIPAA Release
All medical records and information is protected by strong privacy laws and rules. By a HIPAA Release you give your agent authority to receive confidential medical information from your doctors and other providers including hospitals. This release can be part of a Healthcare Power of Attorney.
Designation of Patient Advocate
It surprises some people that Michigan requires a formal legal document before a person, other than the patient, can consent to termination of life-sustaining medical treatment at end of life. It is not enough that “my spouse or child knows what I want.” The law requires a legal document to give a person that authority. In some states it is called a In Michigan it is called a “Designation of Patient Advocate.” who can then carry out instructions the patient made in advance. Without the legal document the family will have to go to probate court to get a court order approving termination of treatment.
Mental Health Code Power of Attorney
Michigan law requires a special grant of authority to deal with medical matters controlled by the Mental Health code. In the elder context these usually involve medications dealing with depression, anxiety or problems resulting from a dementing condition.
Will
A will directs how your property will be distributed upon death. You can also take care of disabled family members by including a testamentary trust in your will. See an a “Special Needs” Elder Law attorney for more information. Call us and we can give you a referral.
Living Trust
Many people think of a living trust only as a way to avoid probate on death. When you transfer property to a living trust it replaces the durable power of attorney, which can make easier to manage your property. However in the Elder Law context the trust may include a “special needs” provision for a disabled family such as your spouse or children. See an Elder Law attorney if this is your situation.
More Information
You can get more information on the above subjects on other pages and articles on our website. But why not just make an appointment and “get it done”? We’ll be happy to refer you to a good Elder Law attorney