Taking the Bruising out of Estate Planning

As you can see, this article is entitled, “Estate Planning for Momma – a Simple Way to Avoid a Cruising for a Bruising!” Some will laugh, but failure to plan can result in ‘a bruising’ from many unintended consequences. Oftentimes, no one sees these consequences coming. The purpose of this article is to educate & motivate the Senior and their family to do any necessary estate planning. Nobody wants to begin this process. But, it needs to be done while there is still time and opportunity to do so.

I am an attorney whose primary practice is in the area of Elder Law. Even though HelpMeHelpMomma.com is our non-legal site, it doesn’t mean that we’re doing anything illegal here. It does mean that this web-site is not associated with our law firm. With that in mind, we are careful not to give out any legal advice on this site.

Having said that, however, there are many things that you as the Family Caregiver need to know. After all, you’re the one with the responsibility of caring for your declining parent. The button below will give access to our 3 Categories of Legal Documents for Momma overview.


Planning Basics for Kids Helping Parents

Does Mom or Dad have capacity?

There are various medical definitions of incapacity. The one that is informally used among us lawyers is defined by a series of questions. Does Mom or Dad know who you are and what they want? Do they know want to do with their assets when they die? Lastly, do they know who they want to make decisions for them if they’re not able to make them themselves.

Does Mom or Dad have any legal documents in place now?

If they are like 70% of the rest of America, the answer is No! If they have any legal documents at all, they may be many years old, irrelevant, and or out of date. Sometimes older documents can even be counterproductive, because they just plain say the wrong thing.

What do they want?

If Mom or Dad has cognitive capacity, sit down with them, give them a pen and yellow pad and ask them to make some notes. If they are able to have this discussion directly with their attorney, they don’t even have to show you their notes. By using the basics contained in this article as a starting point, they can put together some of the initial information required for the first meeting with their Estate Planning or Elder Law Attorney. If they call the Attorney’s office in advance of the meeting, the Attorney may send their own information sheet and information for Seniors to review prior to the meeting.

This blog post is written primarily to the children of declining Seniors. Normally, they are the ones on whom the care burden typically falls. Seniors are no different than the rest of us. They (and we) think they (we) will not become incapacitated before they (we) die. Likewise, they (we) think that everyone knows what they (we) want, so nothing really needs to be addressed.

This is a commonly held misconception that proves itself wrong again and again. If you are a Senior reading this, please take the bull by the horns and take action. Set an appointment with your Elder Law Attorney today so that your wishes will be implemented upon your death or incapacity. Read our blog post, What are Momma’s Preferences?, for some planning ideals. Remember that if you don’t plan, you forfeit the right to choose.

What You Have Now = What You Have at Death?

When it comes to planning, there is one common mistake that I see people making. Altogether too often, people assume that they will have the same assets at their death that they have now. On that point, I was recently quoted in an AY Magazine article entitled Dollars and Sense.

“It really doesn’t matter what your will or trust says,- if you lose it all before you die, there’s nothing left to leave anyone.”

Although that is a rough paraphrase of what I actually said, it is mostly correct. Over the years, I have seen too many people who scrimped and saved for their whole life lose everything during the last few months or years of their life. Unexpected medical expenses or nursing home expenses can deplete most estates quickly. The good news is that with some proper advanced planning, it doesn’t have to be that way.

There are many types of legal documents. Rather than trying to figure out the document you want, think instead of what result you are trying of obtain. There are usually several ways to achieve the end result that you have in mind. Often times, the ideal end result that Mom or Dad wants cannot be accomplished with legal documents alone. In some situations, legal planning must work hand-in-hand with financial planning. In our next blog article, we will discuss financial planning more. For now, don’t hesitate to start learning about the 3 Categories of Legal Documents for Momma. Click below to download a great overview.


Legal Planning Basics

They key is to encourage Mom or Dad to sit down with their Elder Law Attorney and discuss the basics:

    1. What assets do they have now (make a list of the big things)
    2. Which assets do they want to protect if they go to a Nursing Home and apply for Medicaid assistance?
    3. If some of these assets have to be depleted to help pay for their care, which should be depleted first?
    4. If they have any of these assets left when they die, who do they want to have them?
    5. Who do they want to make important financial and health care decisions for them if they are not able to make the decisions themselves?

There are other questions to ponder, however having a clear grasp of these basics will help start the planning process. If your Mom or Dad is not able to go to an Attorney themselves to initiate this conversation, then have this conversation at a Family Meeting (see our blog post entitled Family Meeting with Momma). If the kids have to get involved with this planning process, it’s important that everyone is involved. That way, no one is surprised. It needs to be clear that everyone is working together for Momma’s benefit and no one is attempting to take advantage of the situation for their own benefit.

3 Categories of Basic Planning Documents

One thing to keep in mind is that, in Estate Planning, there are no “Typical” Legal Documents. Every situation is different and every Seniors needs are different. However, the types of documents that may be prepared can be broadly categorized as follows:

    1. Health Care Documents – Each state has their own version of approved legal documents for health care. Thus, it is important to meet with an Elder Law Attorney in your area to make sure the documents you have (if any) are up to date.
    2. Transference of Authority Documents – One of the biggest failure-to-plan regrets voiced by clients over the years is failure to have prepared proper Power of Attorney documents. If you have not authorized certain individuals to act on your behalf in the event of your incapacity, then no one may be empowered to act for you.
    3. Disposition of Asset Documents – Who do you want to receive assets that you still own at your death? There is an old saying that was originally spoken to be humorous that unfortunately has a ring of truth: “If you don’t have a will, your state has one for you.” The problem is that the State’s plan for disposition of your assets may differ markedly from your plan. However, if you didn’t prepare a will or trust during your lifetime, you may have forfeited the right to choose!

As you may know there are various types of legal documents. To learn more about which documents that you may wish to discuss with your Elder Law or Estate Planning Attorney, click here to download our Free 8 page Estate Planning Overview entitled, “3 Categories of Legal Documents for Momma.

Remember that when planning for your incapacity, sooner is much better than later!

About the Author

Doug & his wife Cindy have not only helped hundreds of families with their estate planning and elder law needs over the years, but have personal experience as caregivers and advocates for their Loved Ones as well.

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