For the past nine months I have received calls from individuals who are typically not motivated to engage in estate planning because of their age and belief that it will be many years before they need to confront their mortality. Sadly, Covid-19 has upset the proverbial apple cart on this belief. That being said, I am also still receiving calls from the 92 year old individuals who have never executed a Last Will and Testament and/or any other form of estate or long-term care planning documents and when asked why not, they state “I’ve been very busy the last 92 years!”
For many, trying to broach the topic of estate and elder care planning with a loved one can be an uncomfortable and daunting task. I realize that some grandparents/ parents will never discuss their personal finances and planning with their children. It is something they feel is no one’s business. However, I also know that this can often be quite unfortunate for both the parent(s) and the child(ren). The lack of knowledge about the parent’s finances becomes problematic especially if a parent has taken ill, rendered incapacitated and/or unexpectedly passes away. Under said circumstances, the family is often hampered in its ability to gather the necessary financial information and documents to apply for Medicaid, and/or take the necessary steps to protect one’s assets from the cost of long-term care. Additionally, when the parent passes away, children are often left trying to piece together information relevant to the decedent’s finances for the requisite estate and tax filings.
Clearly, if one is unsure as to whether an aging and/or ailing loved one has done any planning it is best to raise the issue as soon as possible. One can directly ask whether or not they have done any planning and if not, recommend that they consult with an experienced attorney. However, if this approach is not effective, one may need to resort to more creative approaches.
Some of the tactics often used to motivate a loved one to plan are as follows:
a. Educate the loved one about the advantages of engaging in estate and long-term care planning. For example, providing them with articles about the cost of long-term care (nursing homes/ home care), the use of a Medicaid Asset Protection Trust to protect assets from said cost, the Medicaid eligibility requirements and potential estate taxes resulting from the failure to plan. It is not unusual for one to be poorly informed about the devastating impact that long term care costs can have on their finances if they are unable to become eligible for Medicaid. Articles along with our new podcast series, “Talking Seniors” are available on our firm website at www.esslawfirm.com;
b. Inquire with your family and friends about the issues they have faced when a loved one has been taken ill or been diagnosed with dementia. This is especially relevant if they have a family member that needs home care and/or nursing home care. Share these stories with your loved one. There is nothing better than real life stories about a member of one’s family or friends to motivate one into taking action;
c. Offer to pay for your loved one’s initial consultation with an attorney. I have found that in some instances children who are willing to finance the cost of the consultation, and in some cases even pay for the planning can help a parent who is reluctant to pay for the cost of an estate and/or elder law plan;
d. If the loved one continues to resist any attempt to engage in significant planning, such as drafting a last will and/or creating and funding a trust, a step that could prove to be very helpful in the event of the parent’s incapacity is to have the parent execute a Durable General Power of Attorney with broad provisions that allow the agent to engage in estate tax planning, Medicaid/ Long term care planning for the parents.
More than anything else Covid-19 placed a spotlight on the uncertainties of life; having a plan in place to deal with the eventuality of death or incapacity is much better than not having one.
Anthony J. Enea is a member of Enea, Scanlan and Sirignano, LLP of White Plains, New York. Mr. Enea is the Past Chair of Elder Law and Special Needs Section of the New York State Bar Association (NYSBA). He is the Chair Elect of the Senior Lawyer Section of the NYSBA. Mr. Enea is the Past President and Founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). Mr. Enea is the President of the Westchester Bar Foundation and Past President of the Westchester County Bar Association. Mr. Enea can be reached at (914) 948-1500.