By Linda T. Cammuso
May is National Elder Law Month, as well as Older Americans Month. For attorneys who specialize in estate planning, these occasions provide us an opportunity to highlight the importance of planning and awareness around aging-related legal issues such as advance decision making and preservation of assets from long-term care expenses.
Speaking anecdotally from my own discussions with current and prospective clients, there is an interesting dichotomy between the longer life expectancy of the population and the growing awareness at a younger age of the importance of planning ahead for one’s older years, particularly on the nursing home spend down issue. On the one hand, there is the “sixty-is-the-new-fifty” phenomenon, as many people in their 60s are still actively rearing their children and not even close to retiring. On the other hand, most clients I speak with in their late fifties and early sixties are at least aware of the nursing home issue and interested in hearing about options to protect their estate, even if they aren’t quite ready to take formal steps; many of these individuals have watched a parent or in-law go through a nursing home spend down and want to be proactive.
I am often asked by clients what the right age to start thinking about “elder law” issues is, and my answer is typically “when you start thinking about it, then it’s the right time to start thinking about it.” If you’re starting to think about it, then it’s time to get educated on your options.
Planning to protect assets from the nursing home is a spectrum: one end represents doing nothing to protect assets – holding everything in your name, leaving your assets directly to your spouse (if you’re married), having no long-term care insurance, etc. The other end of the spectrum entails more aggressive measures commonly seen with clients who are more advanced in age and/or have larger holdings, where certain assets are transferred out of one’s own name into a trust or even gifted to a person. Most people end up somewhere in the middle, and will begin by dipping a toe in the waters, so to speak. For some, creating an irrevocable trust to own their home is a comfortable nest egg approach – they are taking steps to protect a major asset, but retaining liquid assets in their names. For married couples, building protective trusts into their wills that allow them to leave assets to each other on the first spouse’s death but in a way that protects assets from the surviving spouse’s nursing home costs is a flexible yet highly protective “entry level” structure that can be inconspicuously integrated into their estate plans as young as their fifties.
Maybe you don’t see yourself as an “elder”. Maybe you are still getting used to the idea of being “older”. Age labels aside, there’s no time like the present to start preparing for the future. A complimentary consultation with an EPLO attorney is a great start.