INDUSTRY INSIGHT
ELDER LAW
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What You Don’ t Know CAN Hurt You
Estate lawyers hear all kinds of“ facts” that aren’ t really facts at all. The following are some of clients’ most common misconceptions.
My will controls how all of my assets will be distributed at death.
Fact: Your will controls your“ probate estate.” This includes assets that you own in your name alone and that don’ t have beneficiary designations. Your will does not apply to jointly owned assets and accounts where you have named a beneficiary, like IRAs and bank accounts.
If I don’ t have a will, my spouse gets it all.
Fact: If you don’ t have a will and don’ t have any children, yes, your spouse gets it all. The same is true if you own everything jointly with your spouse. But if you have assets in your name alone and you have children, your children( or your spouse’ s children) may get part of your estate.
Probate is expensive and drawn out and difficult.
Fact: In Pennsylvania probate is inexpensive and usually straightforward. It also offers your heirs some protections.
When naming a POA and executor, it’ s best to name the oldest child, just to avoid hurt feelings.
Fact: The job of the POA( your“ power of attorney,” the person who can make legal and financial decisions for you) and executor requires intelligence, persistence and honesty. Having the wrong person in those roles will just increase hurt feelings.
I( and my spouse) have to be completely destitute to qualify for Medicaid and VA benefits.
Fact: Not true. An elder law attorney can help you protect your funds. This is something to discuss when you have your will done.
If I go into a nursing home, the nursing home will take my house.
Fact: The nursing home will never take your house. Your family may have to sell it to help pay for your care. And if you receive Medicaid to help pay for your care, after you die the state will have a claim against your estate, just like a doctor would have a claim. If your house is part of your probate estate( see the first paragraph above), it may have to be sold to repay the state. There are many exceptions, though, that allow the house to stay in the family.
You can give away $ 14,000 a year without it affecting your eligibility for Medicaid. And you can’ t give away more than that. The $ 14,000 figure has to be the most misunderstood number ever. First of all, that number has nothing to do with Medicaid. The number for Medicaid is $ 500. If you give gifts totaling more than $ 500 in any one month during the five years before you otherwise qualify for Medicaid, your qualification will be delayed. Second, the $ 14,000 figure really just matters to people who have assets in excess of $ 5.5 million. And third, you can always give away as much of your money as you want.
Doctors will read and follow my living will.
Fact: They may, and they may not. Your health care decision maker will be your advocate, to be sure your wishes are understood and honored.
I don’ t need a living will because my family already knows what I want.
Fact: Your living will makes your wishes clear to everyone, even the cousin out in California who wants you to have all the life-sustaining
extreme measures possible. When decisions are made, they will be your decisions, saving your family from anger piled on guilt, piled on top of grief.
If something changes in my life, I can always change my documents then.
Fact: Maybe, and maybe not. Stroke, dementia, coma... there may be health reasons why you would be unable to change your documents. The goal is to prepare documents now that will be good for the rest of your life.
These are just a handful of the misconceptions people have about their estate and nursing home planning. Honestly, lawyers go through law school, attend continuing legal education classes, and spend hours and hours researching clients’ problems. Don’ t feel bad if you don’ t know everything. An elder law and estate lawyer will be happy to apply all that training and experience to your particular situation.
Olds Russ is a general practice law firm in Shaler. Partners Ed Olds and Carolyn Russ have each been practicing law for more than 30 years. The practice is both a neighborhood practice— particularly in the areas of estate planning, estate administration and elder law— and a statewide practice in specialized areas such as employment discrimination, education law and civil rights. Olds Russ is committed to building relationships with clients that will last a lifetime.
Shaler | Spring 2017 | icmags. com 11