estate planning and elder law

Elder Law is another form of estate planning specifically designed for aging individuals. Elder law can be defined generationally, as individuals sixty five and older. 

Typically, this type of planning includes asset protection, medicaid planning, long term care planning, guardianship/conservatorship, and health care planning. 

Asset Protection

Throughout your life, you may acquire substantial assets that you hope will support you as you age or that will allow you to provide for your loved ones after you are gone.

Unfortunately, you’re uniquely vulnerable to losing these assets as you age because nursing home care is expensive and not covered by Medicare or most insurers in the majority of circumstances.

An asset protection lawyer can help you to understand the steps you need to take to protect your wealth as you grow older. This could involve making a Medicaid plan so you can qualify for Medicaid nursing home coverage without spending down your assets.

An asset protection lawyer can also help you to shield your estate from taxes after your death so your loved ones can inherit more money and property. While your estate plan is a key part of this, there are other steps you may need to take to preserve and protect your assets.

Medicaid Planning

This type of planning goes by different names, Medicaid asset protection planning, crisis Medicaid planning and long-term healthcare planning. We will advise you of your options and help you take advantage of solutions available to you.

We will help you prepare to apply for Medicaid nursing home benefits as quickly and easily as possible while shielding as many assets as possible.

Incapacity and Long Term Care Planning

Incapacity can happen at any age. When a physical or mental illness or injury prevents you from being able to manage your own affairs, that is incapacity. Since the risk of this type of issue increases as you get older, seniors should make a plan for incapacity.

A variety of elder law rules apply to incapacity planning as well. For example, there are laws that allow you to give someone durable power of attorney so they can control your assets or a health care power of attorney so they can make healthcare decisions for you if you become unable to do so.

You can also create a living will that allows you to specify in advance what medical treatments you wish to accept or to decline. These types of plans are called advance directives, and they give you more control over an uncertain future.

Someone turning 65 or older today has as much as a 70% chance of requiring some type of long-term care during the remainder of their lives. But choosing a nursing home–and paying for it–can be very complicated.

Long-term care planning enables you to take control over important decisions related to how you will receive custodial care if you require it. You can determine when or if you will move into a nursing home setting or if you would prefer home care. You can even pre-screen nursing home facilities as well so your family isn’t forced to choose a care facility quickly in an emergency situation.

Most importantly, you’ll need to make a plan for this care, which can cost upwards of $100,000 per year. Long-term care insurance and Medicaid planning are options that your elder law attorney will discuss with you to ensure there are funds available to pay for important services that can shape your quality of life as a senior.

Guardianship is a legal process which protects an incapacitated person: “one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he [or she] lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.” [RSMo 475.060]

Conservatorship protects the rights of those individuals who are unable to manage their financial resources due to being a disabled person: “one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that the person lacks ability to manage his [or her] financial resources.” [RSMo 475.061]

The process begins when a “petitioner” files an application for the appointment of a Guardian and/ or Conservator in the probate division of the circuit court in the county in which the alleged incapacitated or disabled person (the “respondent”) resides. 

The petitioner and the respondent must be represented by attorneys. The court will appoint an attorney for the respondent if they cannot afford an attorney.

The judge will make a decision on the capabilities of the respondent, and rule on the degree of supervision necessary for the protection of the respondent.  The court issues letters appointing either full or limited Guardianship and/or Conservatorship.