Bob Lambert, Valdosta Today Law Contributor
Sometimes we are most vulnerable in life when we do not know what we do not know. So it is with estate planning. Have you coordinated your estate planning to provide smooth sailing ahead for you, your loved ones and your assets? Are you over 50 but don’t even know what an Elder Lawyer is let alone consulted one? This week we will consider a few areas you may need to shore up so your estate plan is truly ship-shape.
Estate Plan Essentials
Most people mistakenly think of “estate planning” as merely a distribution plan for assets after death. While that is an important aspect of estate planning, the process really begins with an Elder Lawyer doing life planning. With life expectancies on the increase there is a corresponding increase in the likelihood that our mental and physical abilities will not keep up with our birthdays. Consequently, future falls, strokes or Alzheimer’s can leave us legally incapacitated. What then?
What legal arrangements have you made for your own care in the event you become incapacitated? Have you legally appointed trusted family members or friends to make your personal, healthcare and financial decisions? If no, then a judge who does not know you will appoint someone for you through an expensive process that will invade your privacy too.
And here is an even more thought-provoking question: Was it an Elder law attorney (there are only just a very small handful of us here in South Georgia) who fully understands the legal issues you will face in aging that actually drafted any such documents or instruments you might be relying on?
Perhaps you are not yet over 50, and still have minor children at home? If yes, have you legally appointed guardians (backup parents) to rear them to adulthood should they be orphaned? This is one of the most fundamental responsibilities of parenthood. In the absence of proper legal planning on your part a judge may make this decision for you. Who knows the needs of your children and the best guardians for them, you or that judge?
When it comes to the distribution of your assets, have you taken steps to protect the inheritance from and for your loved ones depending on their unique needs and circumstances? Squandering, divorces, lawsuits or bankruptcies can quickly consume a lifetime of work represented in an inheritance. Do you have any family members with special needs or potential problems with addictions? When it comes to inheritance protection planning, remember the words of famous jurist Oliver Wendell Holmes who advised” Put not your trust in money, but put your money in trust.”
Retirement Plan Requirements
Speaking of protecting the inheritance, do you have any retirement funds? For many Americans retirement funds are a large part of their estates. Until a unanimous decision by the U.S. Supreme Court in June of 2014, the conventional estate (and income tax) planning wisdom was to designate adult children as the direct, contingent beneficiaries after one’s own spouse rather than a trust for the benefit of those adult children. This approach avoided the complexities of designating a trust as beneficiary for the adult children when seeking to maximize the opportunity to “stretch” retirement fund distributions over their respective life expectancies.
In the case of Clark v. Rameker, however, the high court ruled that “retirement funds” were not entitled to any special asset protection treatment and would be subject to the creditors of direct beneficiaries who are individuals. (Note: It remains unclear the impact of this case when the direct beneficiary is the spouse of the retirement plan owner.) Consequently, if you want to protect retirement fund distributions from the potential creditors of your loved ones, then special alternative arrangements should be evaluated sooner rather than later.
Long Term Care Logistics
Fortunately, you can make sure all of your “estate essentials” are in place and that you have secured protection for retirement fund distributions for your loved ones, but unless you make plans to fund your potential long-term care expenses all of you planning may be for naught. In short, there may be no “inheritance” to leave. Why? If you or your spouse need long-term care, expect some sticker shock–monthly expenses can run as high as $7,000 here in Valdosta, more in larger areas like Atlanta and also depending on quality of care. When someone first enters a long-term care facility most of their initial expenses are paid out of cash and savings. Next, their investments are liquidated and, finally retirement funds.
Once the monthly long-term care bills are being paid from retirement funds, the fund balance can disappear rather quickly. Every dollar withdrawn is subject to income taxation at ordinary income rates because the funds were created with pre-tax dollars and have grown tax-deferred until withdrawal.
Fortunately, you can make plans now to protect and preserve your assets from long-term care liquidation later on.
One alternative is to engage an Elder Lawyer such as myself who can help you with legal strategies designed to help you qualify for Medicaid eligibility, if needed.
Another alternative is to acquire long-term care insurance (less than 10% of Georgians have it) to provide the dollars should you need them. This insurance is now available in a variety of forms that can coordinate nicely with your budget and estate planning objectives–assuming you are young enough when you acquire it.
For example, one popular version allows you access to the cash value of the policy, pays for your long-term care if needed and pays a life insurance death benefit to your loved ones if you do not need long-term care.
In the end the only way to protect yourself, your loved ones and your assets is through a well-designed strategy designed by an Elder lawyer that coordinates your estate essentials, retirement funds and long-term care planning. Call me for an appointment today (Visit my Website: legaladviceforseniors.com and sign up for a complimentary workshop) to discuss your personal life care plan.
Bob Lambert is an Elder Law and Estate Planning Attorney who has practiced law in Valdosta for 25 years. His practice is focused mostly toward those Seniors who are 50 years of age and older where there is a need for advanced long term care planning. He utilizes a holistic approach which brings financial planners, home health care, assisted living and nursing home professionals and other experts together for comprehensive life care planning with the goal Medicaid eligibility when needed, asset protection and reallocation combined with traditional estate planning wealth transfer strategies.
An Alabama native raised in Texas, he received his B.A. degree from the University of Texas at Austin with a degree in Government and English, and his Juris Doctorate degree from the University of Mississippi where he graduated 4th in his class. He is a member of both the Georgia Bar and the Texas Bar; a member of the Elder law section of the State Bar of Georgia; and a member of the National Academy of Elder Law Attorneys including the Trust and Medicaid planning sections. He regularly and eagerly provides complimentary seminars to civic groups, churches and other organizations on long term care planning and Medicaid eligibility. His primary focus is to help all seniors 50 years of age and older understand the necessity and importance, and implement , advance planning to preserve assets for enhanced quality of life in advanced age. More information can be found at his website where you subscribe to his weekly blogs on Elder law and estate planning issues at www.legaladviceforseniors.com.
