What is Elder Law anyway?
Estate planning is a fluid process that occurs throughout life. As an estate planner, I’m trained in elder law techniques, but I do not dabble in elder-law planning because it’s a specialized area of the law that changes frequently.
Elder law is a specialized type of estate planning that incorporates elements of (1) general estate planning (like the estate planning Taproot does) and (2) helping the elderly enforce their rights to certain public benefits like nursing home care through medicaid. In 2023, approximately 10% of the population received some sort of public benefit, including medicaid for nursing home services. Most elder lawyers in the UP focus on Medicaid planning to get financial support for nursing home care.
When I identify that my clients have a need for skilled elder-law planning, I often refer them to Attorney John Yonkers (of Brogan & Yonkers in Marquette), who is a well-versed expert in this specific area. Plus, we recently wrote about estate planning after divorce and data shows that more couples are divorcing after age 50 than ever before. It’s very timely, then, that John was willing to participate in our Green Space series as he has some really good insights on planning after divorce and all things elder law. Read on to learn more from John!
Erica: This month, through our blog series, we’ve talked about how public policy favors marriage. How does whether you’re married or not affect the planning tools available to you?
You’re correct that public policy favors marriage, and this is also true in the elder law world. One of the primary reasons that clients come to see us is to discuss a way to structure their assets so that if they have to go into the nursing home there will be a legacy to pass on to their family and loved ones.
The documents that we are able to draft and the programs that we access in order to assist families in paying for the costs associated with long-term care, especially in a nursing home, depends on the marital status of a client. From the beginning of our planning process, we discuss which documents will pertain to an individual client’s situation from up to the time of potential admission to a nursing home (and application for public benefits) to in the ultimate passing of that client. Whether or not the client is married will be one of the determining factors as to which documents we are able to utilize to benefit that client and their family.
In my practice I have found that those who are married when entering a nursing home or other long-term care facility have a greater ability to protect and preserve assets such as camps, cottages, and investments instead of having to spend them down to qualify for medicaid.
Erica: Do people ever stay married because there is this kind of benefit?
When advising aging clients, I’m often surprised at how much information they are bombarded with on a daily basis, from friends, family, and the news. One of the issues that we have heard come up frequently in the last few years is whether or not it makes sense to get divorced when one spouse goes to the nursing home.
At conferences I have heard that there are a few attorneys downstate who are using the divorce process as part of their nursing home Medicaid planning tools successfully. However, in my experience, many of the benefits afforded to married spouses outweighs any slight benefits to being divorced when someone applies for Medicaid.
The federal and state rules for applying for nursing home assistance also favor married couples and allow married couples to protect far more assets than a single person upon entering a nursing home. This is one of the largest benefits to staying married as we age.
Erica: What problems have you encountered with medicaid planning when someone forgets to do estate planning?
The biggest problem in Medicaid planning that my partner and I see is a lack of specificity in the initial estate planning documents or no estate planning documents at all. Nursing home Medicaid applications almost always come about when someone loses capacity, or the ability to live independently. The loss of mental capacity shuts down our ability to put estate planning documents in place or amend older documents that might not fit the needs of the individual at this point in their life.
Estate planning documents are like many other facets of our lives in that they are not static, they should be addressed and amended as we progress through life to make sure that they meet our needs at each station of life.
For example, the estate plan put in place for a young family with minor children is not appropriate for the retiree or the person who is considering retirement. As we age, there are certain provisions that we should consider, including in our estate plans. Most of these surround allowing your agents, or your trusted decision-makers, to make decisions for you in the future when you lose capacity, and or after you pass away.
Due to the fact that the Medicaid program, the program that we used to cover the cost associated with nursing homes, changes very frequently, the estate plan that worked for your friend or family member might not work for you. The nursing home asset protection provisions we use in our estate planning documents are tailored to incorporate the clients, family structure, types of assets, and protection wishes. Therefore, we cannot take a cookie-cutter approach in the drafting of those documents. As your family structure and asset structure change, you should also consider reviewing your overall estate plan to make sure that it still meets your nursing home asset protection wishes before losing capacity.
Erica: Follow up question-how do you pivot when you encounter these problems you just noted?
If we have an individual who has lost capacity to make their own decisions, and their family comes to us looking to apply for the Medicaid benefit to cover the cost of nursing home the lack of capacity generally shuts down our ability to do much planning. However, there are a few arguments that can be made in the probate court to protect certain assets from the Medicaid spend down.
Going to court is always a bit of a tossup where we can never be 100% sure of the outcome, therefore we prefer to have comprehensive estate plans in place well in advance of one losing mental capacity so that their family and loved ones can be adequately protected.
The Green Space series has been a really fun way to connect with and learn from community members and we want to keep building our community! If you are interested in contributing to this series or know someone who might be, let us know by emailing Ann at firstname.lastname@example.org with the subject matter: Green Space.
Mark you calendar!
Check out upcoming Taproot events!
February 3: Law Decoded at Rare Earth Goods in Ishpeming, 3:30 p.m. EST.
February 24: Make a Will Workshop at Rock River Township Library in Chatham, 10 a.m. EST. RSVP to email@example.com.
March 6: Law Decoded at Gallery Coffee, Munising, 10-11 a.m. EST
March 21: Watch Erica on Ask the Lawyers on WNMU-TV, 8 p.m. EST