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As we think about the years ahead, the elderly need to consider five big questions.

How Will I Know When I Need Help?
What Will I Do When I Can’t Live in My Own Home?
Who Will Manage My Finances? How?
Who Will Make My Medical Decisions? How?
What Will I Leave Behind – and Who Will Decide What to Do With It?

We need answers which are practical, sustainable and safe. We need realistic backup plans.

How Will I Know When I Need Help?

What if you don’t? What if dementia or denial keeps you from asking for or accepting help until it is “too late”? Until something very bad happens?

The fact is that we probably won’t know. We must be proactive. We must act in advance. We must get people and systems in place and we must practice using them before we need them.

It is better to put a grab bar in your bathroom now than to discover that you need one when you slip or trip, winding up with an injury which could send you to the hospital or the nursing home.

What Will I Do When I Can’t Live in My Own Home?

We all have to plan for this. Almost none of us have the money to pay for years of 24/7 care and geriatric social workers, reporting systems and accountants who will provide a check on that care.

You may have a child whose house has a mother-in-law suite. But what if that child moves or becomes ill, divorces or has other pressing obligations? However well-intentioned they may be and however rosy things look now, you need a backup plan.

That backup plan might be another child, or a grandchild, who promises to move in with you. But the same risks apply.

Eventually, you may have to consider assisted living or, if you need stand-by nursing care or experience more than mild cognitive decline, a nursing home. This raises the question of money, particularly if you do not have the medical necessity for a nursing home.

Medicare, on renewable doctor’s orders, will pay for scheduled nursing, physical or speech and language therapy at home or in assisted living and, if you need one of these, for occupational therapy and a certified nurse’s assistant for up to 35 scheduled hours per week. For most people, this is more like 28 hours per week with a nurse coming once a week, a therapist twice a week and a certified nursing assistant coming to help you shower and dress three times a week.

But Medicare will not pay for room and board, either in your home or in an assisted living facility.

Medicare has a co-pay and a deductible.

Medicare will not pay to make your home senior friendly, to transport you to the doctor and take notes, to make sure that you take the right medicine at the right time in the right dose, to do your laundry or get your groceries, to clean your house or do your cooking. Medicare will not mow the lawn or change a lightbulb. Medicare will not walk the dog or feed the cat.

You may get help with some of these in assisted living. In the Austin area in 2018 assisted living ran around $63,000/year. If you are a veteran or the spouse of a veteran, you may be eligible for VA benefits which will pay part of the cost. If you have long term care insurance, that may pay for part of the cost. Your Social Security retirement benefits and. If you have one, a pension or a 401k may pay for part of the cost. Think about where the rest will come from before you take that European vacation. You do not want to look at pictures of your vacation in an unlicensed board and care home.

Who Will Manage My Finances? How?

Control of the purse strings is often control of the person. That is why we need checks and balances. A properly drafted Durable [Financial] Power of Attorney allows someone else to make decisions in the areas it specifies but requires reports and accountings to the person granting it and to others it specifies. A Revocable Living Trust allows your spouse or someone else you name to take over if you can no longer manage your financial affairs. A convenience signer gives someone access to your account but does not make them co-owner.

We will not always be interested in going over the accounts. But we will want someone there to catch any mistakes or malfeasance. Consider naming your tax preparer and your financial advisor as people who can receive on-demand accountings from your agent under a Durable Power of Attorney. Consider naming your elder law attorney and signing a confidentiality release allowing him to share information with the Court or a government agency if the need arises. Consider also naming other children or siblings: if they see where the money is going, there is less likelihood of a misunderstanding or a dispute which could tear the family apart.

Who Will Make My Medical Decisions? How?

You can make your own medical decisions as long as you can communicate. If you cannot communicate in an emergency, it is assumed that you want medical attention. If you cannot communicate in a non-emergency, your choices can be communicated by your agent under a Medical Power of Attorney – if they know what they are and if the Medical Power of Attorney can be found.

Half of people 65 and older arrive at the hospital unable to direct their own care. Attach a letter to your Medical Power of Attorney expressing your values and saying what you want. See www.prepareforyourcare.org and https://theconversationproject.org for suggestions on ways to discuss your care with your family and your doctor. Remember that medical technology changes. Unless you have a specific diagnosis, focus on your values, not on specific treatments.

Remember, too, that our perspectives change. What may have looked horrible while you were standing up may be something you find you can adjust to when you are lying down. A 2014 study of people with at least two chronic conditions found that after two years, 82% of people with physical and 83% of people with mental challenges wanted more focus on cure and continued life, not less.

At this stage or life, you may or may not want to sign an Advance Directive to Physicians stating what you want if you are found to be in a permanent comatose state or thought, even with medical care, to have no more than six months to live.

At some point you may want to sign a Statement of Intent for End-of-Life Care, a more nuanced document which allows you to address specific treatments and, perhaps more importantly, specify what would make you feel comfortable in the final weeks of life. You may want certain people or pictures nearby. You may want certain hymns or prayers or a priest. You may want certain music or a pet.

If you change your mind, you can change your treatment – IF you can communicate this to witnesses. Usually, in a medical crisis or at the end of life, we cannot.

If you never sign a Medical Power of Attorney or attach a letter or have repeated conversations with your family and your doctor, Texas law allows family members, in a stated order or priority, to decide for you. Instead of getting you what you want, this could get your family into a dispute, with people who disagree with the decision holding lifelong grudges. It also just does not work if your children are to decide and you have an even number: what is the “majority” who can decide?

What Will I Leave Behind – and Who Will Decide What to Do With It?

Your stuff is not your legacy.

Your legacy is the values you have lived by and imparted to others. Your legacy is the unique human being you are and what that has meant. Your legacy will continue for generations, far beyond the people who knew you.

Nonetheless, we will all leave stuff behind. Much though our personal possessions may mean to us, to others they are likely to be just things to get rid, to donate, to dump, not treasured mementoes.

If we do have heirlooms or other items which someone else would treasure, we can give them away while our hand is still warm or we can gift them in a Will, a Revocable Living Trust or a Memorandum of Personal Possessions and Heirlooms executed like a Will.

If we think that “the kids” will fight over our stuff, we can arrange for an “NFL draft,” a “Monopoly auction” or some other even-handed distribution method in our Will or in a letter to our Executor. If this seems unlikely to occur, our Will can instruct our Executor to distribute them. However little the monetary value, this “stuff” is usually the greatest cause of family fights.

Do you want people to remember you or do you want them to remember the family fights?

Some of us will not run out of money before we die. We may leave a home or a car. We may leave savings or investments. None of these need pass by a Will, though they can. If they are left to pass by a Will, they are subject to the Medicaid Estate Recovery Program. In Texas, if they are not, they pass free of Medicaid Estate Recovery.

An added feature of passing them outside a Will is that when you name who will receive what, that person receives the thing you name, as long as there remains enough money in the estate to pay the bills. If not, the recipients must pay their pro rata share. A person who receives your home or car may still be able to keep it if they have cash to pay their share of your estate’s bills. If not, they may have to sell it.

If you have arranged for everything to pass outside your Will but funds for final expenses and settling your estate (or funds up to $75,000), your home and up to $60,000 in household goods and personal possessions, you do not need a Will. Your estate can be settled by an Affidavit of Small Estate signed by all the heirs and two witnesses who know your family and your estate. They must all promise to pay your bills. Some may hesitate. In addition, some banks are reluctant to accept an Affidavit of Small Estate and many contend that it is not fully equivalent to a court degree appointing an Executor under a Will or an Administrator in an heirship proceeding. If there is a check payable not to you but to your estate, there may need to be an Executor or Administrator appointed by a Court.

Any heir, with the written agreement of the others, can apply to administer your estate independent of Court supervision. An heirship proceeding costs more and takes longer than probating a properly drafted Will. That is for two reasons. First, all the known heirs must be notified by certified mail, return receipt requested and, if they do not respond, by the county constable. Second a notice to heirs must be published in the local newspaper and the court must appoint an attorney to represent unknown heirs (however theoretical), heirs whose location is unknown (and a private investigator may need to be hired to find them), and heirs who cannot act for themselves (such as children and people who are incarcerated or in a psychiatric hospital). Third, two people who know that the heirs stated in the application are the heirs and the only heirs must testify in open court. If they do not reside locally, they can be deposed on written questions before a notary public. All this costs more and takes longer, the amounts varying from case to case.

Although it will mean that your heirs cannot use an Affidavit of Small Estate to settle your affairs, you may well be better off signing a Will. You want property to pass the way you want it to pass. The Texas law of descent and distribution protects current spouses and children of prior relationships but maybe not in the way you want.

 

Estate planning attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is active in the Texas and Austin Bar Associations. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.

She assists families of people with special needs, people planning for the retirement years and people administering estates.

 

 

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