Aging Options Blog : Washington Estate Planning Lawyer & Attorney : Rajiv Nagaich : Aging Options Law Firm : WA Elder Law, Wills & Trusts

As an Elder Law Attorney, I experience first hand  the same pain, anguish, struggle and frustration a family goes through while taking care of their loved one. Our health care system is so broken and complicated that it has simply forgotten the notion it was created on. Every one is treated as one fit size all regardless of individual necessities and requirements.

This week I received an email from one of my loyal radio show listener, who herself is a psychiatric nurse practitioner  for last 30 years & taking care of her elderly mother. Her mother is right now at a rehab facility and she has Group Health Insurance. Rehab facility and Group Health managed  care wants to discharge her mother even though she cannot transfer by herself and may even have torn her shoulder rotator cuff in the fall which had not even been addressed yet. 

Daughter thinks Group Health is not meeting their fiduciary duty  & wants to discharge her mom, even when it is not safe for her mom to be discharged.....Daughter is struggling & fighting with the system, simply to maintain the quality, safety and dignity of her mom's life.

Under the law, Group Health can only discharge mom if it is safe for her to be discharged. I suggested  the daughter to hire the services of a care mangers (social workers) to interface with the medical community and try and work with them in developing the discharge plan. If they are given a hard time then I will write a letter as an attorney requesting their cooperation and informing them that their planned discharge will place mom in physical jeopardy for which they may have liability. If they still insist in discharging then they have to give  a written notice to mom and mom will have the right to request review. While the review is pending, Group Health must pay for the care of mom. However, if the review is unfavorable to mom then mom would have to pay for the days out of her own pocket.

I also suggested daughter to have a backup plan that is to  work on Medicaid and or VA benefits while trying to push the Medicare days. The ideal way to deal with this situation will be to have care managers meet the Group Health folks and get an idea of what needs to be done to ensure the safety & quality of life for mom before discharging her and simultaneously review mom's estate for VA and Medicaid benefits......

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The knowledge that we will eventually die is one of the things that distinguishes humans from other living beings. At the same time, no one likes to swell on the prospect of his or her own death. But if you, your parents and other loved ones postpone planning until it is too late, you runt the risk that your intended beneficiaries - those you love the most - may not receive all that you would hope.

We should begin a discussion of estate planning with a consideration of what "estate" and "estate plan" mean.  An "estate" is simply everything a person owns: bank accounts, stock, real estate, motor vehicles, jewelry, household furniture, retirement plans, life insurance. An "estate plan" is the means by which the estate is passed to the next generation. This can be accomplished through a variety of instruments. Most retirement plans and life insurance policies pass to named beneficiaries, chosen when you take out the policy or at a later date. Property that is jointly owned passes to the surviving joint owner. Trust assets are distributed according to the terms of the trust. Property  held in an individuals name alone comes under the instructions laid out in a will, or in the absence of will, under the rules of "intestacy" set out in state law.

Problems often arise when people don't coordinate all of these methods of passing on their estate. A well-drafted estate plan also permits you to save as much as possible on taxes, court costs and attorneys' fees. Most importantly, it affords the comfort  that your love ones can mourn your loss without being simultaneously burdened with unnecessary red tape and financial confusion.........

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This is one of most common question I get  asked all the time from my clients & radio listener, should i have a Will or Trust ? Let me start by explaining the difference between a Will & Trust .

Will & Trust do exactly the same that who gets what when I die. But they work totally differently.

Will is a very simple document, where I write down my wishes, name the  beneficiaries of my estate & let  my family members  know who gets what when I die. And when I die, my estate will go through  probate. Lot of people are scared of probate process. I am hear to tell you that probate isn't a scary process. It usually takes 4-5 months to complete the whole process & during the process all my creditors will be notified & required to submit any claim if they are owed any money before the assets from my estate are transferred to my beneficiaries. Once the probate process is complete, no one can come to the  beneficiaries of my estate and claim their inheritance.

On the other hand Trust is a business arrangement, it basically says I can avoid probate when I die, if I don't owe any money to anyone. When I create a trust, I give up the ownership of all my assets ( like house, cars, stocks, bank account etc) to the trust. One of the biggest benefit of Trust is protecting my assets from creditors. Trusts are private documents and only those individuals with direct interest in the Trust have any right to know of Trust assets and distribution.

In my personal opinion, I will create a Trust if my estate is worth more than 4 million dollar, I am in a second marriage situation, my kids will fight over the inheritance, or  I have real estate in more than one state. Other than that Will should do fine for me ...............

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Most simply put, elder law is a legal specialty focusing on the legal needs of seniors. But that begs the question a bit. What are those legal needs? How do they differ from the legal needs of non-seniors? How do we define 'seniors'?

Unfortunately, many of the legal issues seniors face arise from their loss of mental capacity or the onset of physical incapacity. The increased likelihood that we will need care as we age, especially after age 85, the failure of the American health care system to provide for such care under standard insurance, the high cost of such long-term care, and the complicated and piecemeal public 'system' of subsidizing long-term care combine to create the need for legal expertise to guide seniors either experiencing or anticipating long-term care needs. This is the core service of elder law.

However, elder law also includes more standard estate planning, simply with an eye towards the future need for long-term care, and more urgency given the higher age and likely sooner death of the client. Elder law also includes guardianships and conservatorship proceedings over seniors who may have lost or be losing their mental capacity (or defense against such proceedings), protection of seniors from those who may take advantage of them, the resolution of disputes with nursing homes and assisted living facilities over care and related issues, and the resolution of disputes among family members about the care of their parents and the financial cost of such care.

The term 'seniors' often refers to anyone over age 65. While individuals age at different rates, as a group there's a huge difference between those between 65 and 85 and those over 85. The vast majority of those in the first age group are healthy and enjoying their so-called 'golden years', while over half of those in the latter group need some assistance getting through the day. In fact, often it is those in the first group who are caring for their parents in the second group. Elder law attorneys help those in the first group prepare for their post-golden years, and help those in the second group deal with the legal and health care issues they come up against.

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This was the question asked by one of the caller during my last week radio show Aging Options. This is a very common & good question, I get from my listeners & clients all the time. Answer to this question is if your estate is worth between 50k -1.5k million dollar, you should take a very good look at the Safe Harbor Trust. These are the estate where people have worked very hard all their life, they have said no to expensive vacations, no to brand new car every year. They have set aside money for the house that is paid for & few hundred thousand dollars in bank. These estates are now venerable to the Long Term Care cost, which is very expensive. Average cost can range anywhere between 8k - 15k per month.

Some of the exceptions to not being serious about Safe Harbor Trust is having a very very good Long Term Care Insurance Policy with life time paid benefits or if your estate is worth more than 1.5K million dollars. Here the issue is not the asset preservation but the care management. You should not ignore the importance of care management, if you are looking for dignity & quality of your life in retirement.

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