It is important for everyone to establish, and periodically review and revise, their estate plan. This may include, but not be limited to, a Will, Durable General Power of Attorney, Health Care Proxy, Living Will, HIPAA forms, and Trust(s). An estate plan identifies fiduciaries to serve in various roles, now and in the future. For example, while a Personal Representative is the fiduciary named in a Will to carry out the principal’s wishes post-mortem, the authority of an Attorney-in-Fact named in a Durable General Power of Attorney becomes effective immediately and, therefore, that person or persons may assist the principal in financial and other matters if/when they are unable to do so during their lifespan. This may be the case while a person is out of town temporarily or, as they age, may be needed on a more ongoing basis.

 Alternatively, a Health Care Agent is only activated when a medical provider determines that the principal is unable to make their own health decisions and invokes the Health Care Proxy. When that occurs, the Health Care Agent would have the benefit of the medical directives identified in the Living Will to assist them in speaking on the principal’s behalf.

If your estate plan includes a trust or trusts, the trustee is the person who controls those funds, which may or may not be the person establishing the trust, depending upon the specific circumstances.

Although estate planning is not always considered for very young adults with fewer assets, once a person becomes a legal adult it is important that they establish a Durable General Power of Attorney and Health Care Proxy, especially if they are bound for college. Students may travel abroad and need the local assistance of their Attorney-in-Fact with financial or other affairs. Similarly, a signed Health Care Proxy can aid parents’ communication with schools and medical providers should medical events occur while students are away at college.

One could argue that an estate plan that is kept current, both with the ever-evolving law and with the individual’s circumstances, is the best foundation for a long term care plan. That said, this is often not the case and life can present situations not conducive to planning. While the foregoing estate planning documents may also be incorporated into long term care planning, the refined focus may impact the establishment and/or funding of trusts and the fiduciaries identified in new and prior estate planning documents.

If one spouse’s health has declined, it may be prudent to change fiduciaries identified in the healthier spouse’s estate plan which likely previously named the ill spouse. Further, there should be an emphasis on asset ownership and the designation of beneficiaries for existing, and potentially future, assets. For example, if time and circumstances allow, an Irrevocable Trust may be established and funded and/or a Testamentary Trust may be utilized for asset protection. Ultimately, once all appropriate estate planning components are in place, a careful analysis of all assets is conducted to determine the best approach for an individual’s care and the related costs of same, whether in the home/community or in an assisted living or skilled nursing facility. This might include an assessment of long term care insurance, life insurance, income and assets, debts, tax implications, residency and family circumstances.

Long term care planning options differ for single and married individuals, however each client’s plan is very case-specific and takes all factors into consideration. Should skilled nursing care be anticipated or required, and it is determined that applying for Medicaid would be in the client’s best interest, an intricate plan is outlined to spend down assets to attain MassHealth’s financial eligibility limits in a manner that doesn’t jeopardize public benefits and an application and all required verifications are prepared to position such an application for success. As part of that process, the ownership of all real and personal property is examined for possible allowable transfers between spouses or other protected persons to qualify for MassHealth benefits and, as referenced above, beneficiary designations may be changed so as not to jeopardize continued public benefits after Medicaid eligibility has been met. 

When contacting our office to take the next steps in estate or long term care planning, it is imperative that you communicate all pertinent financial and health circumstances so that we can take all appropriate details into account in your immediate and future planning. If your call to us is precipitated by a recent physical or cognitive diagnosis or injury, a recent or planned shift in residency, or a significant change in your finances, please highlight these concerns to be included in our overall discussion. The likelihood of the best possible outcome is greatly increased when experienced, knowledgeable counsel has the benefit of forethought thanks to their client’s timely and thorough communication.

While we don’t have a “crystal ball” as to the trajectory of anyone’s health, the goal is to establish a comprehensive plan, no matter the client’s age, and provide them with an understanding of future scenarios and the potential subsequent impact on their planning. Most importantly, we want you to have peace of mind that your plan meets your current goals and that we stand ready to assist you throughout the stages of your life as your circumstances change.