Representing not-for-profit, community-based senior care providers throughout Western New York.

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Your Estate and Long Term Planning Toolbox

An elder law attorney can help you use the law as a toolbox full of devices to achieve your estate and long-term care goals. These goals include providing affordable and appropriate living arrangements for yourself for the rest of your life, naming appropriate decision-makers if you become incapacitated, and maximizing the assets that you leave to family, friends or the charities of your choice. Here are some of those tools:


Advance Directives Wills And Living Trusts
Do Wills Cover Everything? Jointly-Owned Property
Beneficiary Designations Medicaid Transfer Penalties
Long Term Care Insurance Planning Ahead
Qualities To Look For In Law Attorneys How Can You Tell If the Fee Is Fair?
How Do You Get The Most For Your Money?

Advance Directives
Health Care Proxies, known elsewhere as Advance Directives, and Powers of Attorney let you choose who will act as your agent if you are unable to handle your financial affairs or communicate your wishes about health care decisions. Every Western New Yorker over age 18 should have a Health Care Proxy. Every older person should also have a Power of Attorney. Even if New York passes a Family Health Care Decisions Act, a Health Care Proxy will enable you to decide exactly who will act for you when the need arises, and what important decisions that person will make.

Wills And Living Trusts
You can use Wills and Living Trusts to control who inherits your property, provide for family and friends with special needs, and minimize taxes. Without them, your property might not benefit the right people and might be taxed unnecessarily. It is always important to choose the Executors and Trustees of your estate very carefully.

Do Wills Cover Everything?
Wills and Living Trusts will often not control some of your most important assets, such as your house, retirement benefits and insurance. The tools you use to accomplish those goals are generally joint ownership and beneficiary designations.

Jointly-Owned Property
You can own almost any kind of asset jointly with another person. The three main types of joint ownership are: tenancy by the entirety; joint tenancy with right of survivorship; and tenancy in common. Jointly-owned property, like everything else, may be subject to income, gift, estate and property taxes. It can also affect your long term care plan and your estate, particularly when you need Medicaid or other government benefits.

Beneficiary Designations
Assets which typically pass by beneficiary designation include life insurance, annuities and retirement plans. Your beneficiary can be almost anyone. It is important to name contingent beneficiaries, too, should a beneficiary pass away before you do. These provisions vary from company to company, so, to avoid unintended results, you should carefully read the designation forms and contracts.

Medicaid Transfer Penalties
A Medicaid transfer penalty is a period of time during which you are not eligible for Medicaid. The penalty occurs when you make certain gifts that are counted as "uncompensated asset transfers." The penalty is equal to the amount of care that Medicaid could have purchased with the value of the asset that you gave away. Depending on when you made the gift, how big it was, and when you want Medicaid to start, the penalty period may or may not affect your Medicaid eligibility. The penalty period is now calculated using a five-year "look back" period.

Long Term Care Insurance
Planning for the cost of long term care is as important as estate planning. You will have more independence and control if you can pay for any long term care you may need. Long term care insurance can help provide you with the economic power to buy the care you want, when you want it and where you want. If you are thinking about buying long term care insurance, there are two questions you must answer: do you need it, and can you afford it?

Plan Ahead And Keep Your Plan Updated
One of the most important things to remember is to plan ahead. Once you have done so, remember to keep your plan up-to-date. Time and time again we have seen that people who plan ahead can live their lives confident in the knowledge that they will enjoy the good things and cope with the bad ones. Because the law changes, and because the people who are important to you change, it is essential that you regularly review your plan and be sure it still works for you. The good news is that we Americans are indeed living longer, and with advance planning, we can ensure the highest quality of life in our very senior years.

Qualities To Look For In Your Elder Law Attorney
You want your attorney to be attentive, communicative, competent, confidential, courteous, considerate, ethical and zealous.


Some of these qualities you can easily judge, for example whether or not your lawyer is attentive, communicative, considerate and courteous. You can expect privacy in your dealings with your lawyer and to have your secrets and confidences preserved. Maintaining client confidences are part of every lawyer's ethical duty.

Competence is something that you must try to judge when choosing your lawyer. One way to do this is to ask the lawyer about his or her experience. When selecting an elder law attorney, ask what percentage of his or her cases are elder law cases. Ask also about particular types of cases, for example, how often does he or she handle cases regarding Medicare, Medicaid, Guardians, or hospitals and nursing home admission, discharge and billing cases.

How Can You Tell If the Fee Is Fair?
Abraham Lincoln said that advice is a lawyer's stock in trade. This "inventory" is as valuable as any documents your attorney may prepare for you.

Most lawyers calculate their fees based on an hourly rate. Some will set a flat fee for a particular type of case. You probably won't find a lawyer who charges by the page, so when you're trying to decide whether or not your attorney has earned his or her fee, don't count the pages in your Will. Think about how much time you spent with the lawyer in his or her office. Think about which telephone calls were merely to schedule appointments and which ones were conferences about your case. Think about who else your lawyer called or wrote on your behalf. Think about the time it took to prepare your documents.

It's a good idea for you and your lawyer to write down how his or her fee will be calculated and when it is to be paid. You may make only one payment when your case is closed. In other matters, you or your lawyers might prefer periodic payments, for example monthly or as specific tasks are accomplished.

How Do You Get The Most For Your Money?
Plan ahead. Think about your goals. Identify which tasks you can perform and which ones should be handled by your attorney.

Communicate with your lawyer. Don't be afraid to call or write your lawyer. It's better to do that and incur additional legal fees than leave something important unsaid.

Follow your lawyer's advice. Otherwise, you may not achieve your goals and you will just be wasting money on legal fees.

Don't expect miracles. The law is a toolbox for building plans and repairing problems, but there is no magic wand in the box.

The information included in this article is general information intended solely for educational purposes, and is not legal advice. Any questions regarding legal matters and specific circumstances should be discussed with your attorney.