Planning for Future Disability & Asset Protection for Older Adults
By FindLaw Staff | Legally reviewed by Laura Temme, Esq. | Last reviewed November 01, 2022
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This article will review topics such as choosing a nursing home, Medicaid planning, and general asset protection planning.
Older adult law, sometimes known as "elder law," covers the legal areas that apply to long-term care planning. This can range from financial to medical to quality of life decisions.
You will want to carefully consider estate planning and creating the correct documents and understand these common areas of law and terms.
Who Needs Asset Protection?
Almost everyone will experience some type of disability, whether due to an injury, an illness, or mental health. And in most cases, we can't predict when such a disability will occur. So it's important to think about what you want to happen if a disability renders you unable to manage your affairs.
For example, who would you want to take care of your business? Is there someone you want to make decisions about your medical care? Who will take care of your children?
Without the proper documentation to understand your wishes, your loved ones will have no choice but to follow the rules set out by your state.
Asset Protection Through Legal Documents
One of the best ways to protect your assets is with legal documents. You can learn more about each type of document and the legal issues they help prevent in the links below:
- Learn about health care powers of attorney basics
- Living wills/health care directives or create your DIY forms
- Read about financial powers of attorney or find a DIY power of attorney form
- Understand the basics of advance medical directives
- Learn about will basics or find a DIY will creation form
- Consider a special needs trust for vulnerable adults
- Learn the difference between revocable trusts vs. irrevocable trusts
- Read about the basics of living trusts
You can complete many of these documents with online DIY forms. Your family members can help you complete them from home and within your timeframe.
In some instances, you may be able to complete them for someone else if you have a power of attorney, guardianship, or conservatorship. Taking care of these documents before facing incapacity issues or death is essential.
For more complex situations or assets, you may want to talk with an estate planning attorney first.
A Financial Power of Attorney to Assist Older Adults
Some people will add a relative, friend, or adult child to their bank account so that someone can access it if they become incapacitated. However, this is not the best approach. If you die, that person is entitled to everything in that bank account -- regardless of what your will says about that money.
If you're concerned about having someone take care of your financial affairs but don't want to undermine your estate planning objectives, a financial power of attorney is a much better option.
A financial power of attorney lets you pick someone to access your bank accounts and other financial assets, but only if you become incapacitated.
Veterans Benefits for Older Adults
Veterans benefits offer a range of assisted living facilities and services. These can apply to servicemembers of any age but may become necessary for ex-servicemembers as veterans age.
These provided services and care needs typically include:
- Health care coverage
- Long-term care insurance
- Rehabilitation services
- Compensation for people with a disability
- Education and skills training
- Retirement pension
- Help with home loans
- Burial and memorial services
Medicare Planning: The Basics
You can learn the basics on our overview page if you aren't fully versed in Medicare and its benefits. In short, Medicare is a government-run healthcare program designed.
The program helps provide care for:
- Older adults
- Certain younger individuals with disabilities
- People with end-stage renal disease (ESRD)
Citizens all help pay for Medicare through Social Security contributions over their lifetime. These are taken from paychecks until your Medicare eligibility begins. Qualifying beneficiaries can start getting Medicare benefits at age 65. Be sure to learn tips on successfully choosing a Medicare-managed care plan.
Medicaid Planning: The Basics
Medicaid eligibility, on the other hand, is based on income level. Medicaid is a government-sponsored health insurance plan for low-income individuals. The process requires a Medicaid application and approval. Medicaid benefits help those who are otherwise unable to afford medical care.
Caregivers should know their loved ones' benefits and financial status to determine which options suit them. These plans, as well as other public benefits, can help with supplemental needs and care costs. Each county has legal aid programs, and most have special programs for older adults. These programs are funded via the Older Americans Act.
Medicaid Planning for Spouses
Medicaid does have "spousal impoverishment" benefits as well. This means a couple's combined resources are considered. A certain amount is protected and set aside for one of the spouses.
Legally they must still live in the community and are called the "community spouse." This term simply means they are the spouse of a Medicaid applicant but aren't applying for their own long-term Medicaid care.
Asset Protection Planning: Who Can Help Me?
Asset protection is a complex legal field that covers many technical areas, including:
Specific asset protection techniques may apply to your loved one's situation. If the situation is at the point where you need legal assistance, you will need different types of attorneys based on the legal problem you are dealing with.
Planning Ahead for Nursing Home Care
One of the biggest concerns for families of older adults is how to cover the high cost of a care facility. While these varying levels of assisted living are essential for many older adults, they can cost thousands a month.
First, be sure you pick a nursing home that will provide the high level of care and quality of life you are paying for. You can consider these options to pay for assisted living or private long-term care insurance. In some cases, Medicare will help pay for short stays (not more than 100 days) if your loved one meets specific criteria.
Don't forget the rights that the Nursing Home Reform Act created. There is a Nursing Home Resident Bill of Rights for those living in covered facilities to help protect their dignity and prevent older adult abuse.
Plan Well and Plan Early
As soon as you and your loved ones are comfortable talking about these topics, starting the planning process is a good idea. Estate planning documents are typically created when someone has assets to protect or starts a family. The other topics are ideal to discuss while the older adult in your life is healthy, happy, and not already stressed with health care decisions or losing a partner.
Older adult law attorneys focus on covering all these topics and can help start the conversation. They can also direct you to attorneys focused on other legal areas if appropriate.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex care situations usually require a lawyer
- A lawyer can reduce the chances of a family dispute
- DIY living wills, powers of attorney, and wills are possible in some simple cases.
- You can always have an attorney review your form
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.