We often find that adult children and their aging parents will come to our office and present to us, their newly recommended estate planning attorney, a last will and testament that is at least twenty years old. This estate planning document nominates a brother or a sister as a guardian for the minor children. It also provides for the assets to be distributed on death to a bank trust company that is to retain the assets in trust until the children have attained age 21.
One of the problems with this estate plan, which needs updating, is that the youngest of the children is now age 25 and the eldest is age 35. In addition, the bank nominated in the last will and testament to serve as the trustee is no longer in business. Further, if there was a trust agreement, it was never funded.
In this scenario, we are fortunate that the parents lived these many years and it was not necessary to use the estate plan, or even fund the trust. In situations like this, one of the ways we can help the parents is by drafting a new estate plan that corrects these issues. For example, the new trust agreement could dispense with the need for a guardian of minor children and name a trust company now in existence to serve as the trustee.
The parents, however, have aged to the point that a new estate plan alone is not sufficient for them. The parents need their own updated advanced directives in the event of a disability. Therefore, the parents will also need to consider signing, at a minimum, durable powers of attorney, health care surrogate designations, and living wills.
Further, they need to consider long-term care planning.
An estate plan alone will not be sufficient to help them be able to afford the high cost of long-term care in an assisted living facility with memory care or a skilled nursing home. Medicare is also not able to help with the cost of the daily custodial care. The parents need an estate plan but also an elder care plan that can help them plan for how they will be able to afford long-term care and not lose their lifetime of savings.
We work with parents and adult children each day to tackle this difficult issue.
The key is to not put off this type of planning as time is of the essence. If you have questions on this or any issue, we encourage you to contact us to schedule a meeting.
Whether or not your aging parents live close to you or in another state, such as Florida, there is never a wrong time to discuss their estate planning.
Unfortunately, studies continue to show us that less than fifty percent of all Americans have estate planning in place.
This becomes an increasing concern as your parents age and become increasingly susceptible to age-related health care issues or long-term care concerns.
Despite your concerns, it may be hard for you to start a conversation with your aging parents. We know, based on our experience, that there is never a wrong time to start the discussion. We encourage you to openly speak with your aging parents about what they need to ensure they are protected as much as possible.
Let us share with you nine ways you can begin discussing estate planning with your loved ones today.
1. Ask for all decision makers to be at the meeting with your parents. You want to have a meeting when all involved can be present. Ask your aging parents who they want to be included and make sure these individuals can be in attendance.
2. Set the meeting at a time that interruptions will be limited. This conversation can be difficult to have, and made even more so with frequent interruptions. Decide on a place and time when the necessary parties can not only be in attendance, but will not be pulled away during an important topic.
3. Do not avoid difficult topics. Discussing death and incapacity and a lack of control can be hard for any of us. Simply because it is “hard” to talk about does not mean the topic should be avoided. It may help to create an agenda of what you need to discuss so topics will not be avoided or put off to another time.
4. Discuss everyone’s schedule and availability both now and in the future. A critical part of estate planning is naming a person who will have the legal authority to act for your parents in a crisis. This means that their decision makers will need to be available in a crisis. Talk about this openly together to ensure that everyone can be involved or if changes need to be made.
5. Ask you parents what their goals are. Your parents know better than anyone else what they want. Talk to them about their goals for their legacy, their living situation, the future as it is related to long-term care, and any other issues they wish to discuss. They need to feel supported and that their loved ones will help them achieve their goals.
6. Check in on finances as they are related to long-term care needs. Although it is not estate planning, elder law concerns should also be discussed together. Long-term care can be expensive and, in almost all instances, is not covered by traditional health care insurance or Medicare. Discuss together how you would be able to afford long-term care support, should it become necessary.
7. Know that different states have different laws. Each state in America is different when it comes to estate planning. While there are similarities, the law may not be the same. If your parents have estate planning from a different state, it may be time to update to estate planning documents that reflect Florida laws.
8. Make a list of questions. As we shared before, making a list of questions and topics can ensure that everything is addressed in your meeting together. Write down your questions, your parents’ questions, as well as anyone else who is involved in the meeting, leaving room for new questions that arise as a result of your conversation. Determine what you can answer together and where you will need the help of an experienced attorney.
9. Schedule a meeting with an experienced attorney. Your parents need an experienced estate planning attorney who will be able to support them in creating the plan they need. Do not wait to schedule this meeting and get answers to everyone’s questions. Be sure to determine in advance who will attend this meeting and ascertain from the attorney’s office if adult children may be present in the meeting with their parents’ consent.
We encourage you to ask us your questions about this important topic. We know that this article may raise more questions than it answers and want you to have the support you and your aging parents need. Do not hesitate to reach out to our office and schedule a meeting on this issue or any elder care concerns.