Ask the Expert: LawyerLisa talks Elder Law - February 2023

Ask the Expert: LawyerLisa talks Elder Law

In this February’s Ask the Expert, Attorney, Lisa Hostetler Brown, founder of LawyerLisa, and certified specialist in elder law, shares insights to help us and our loved ones navigate the elder law and long-term care maze.

Concern: My family member is not competent, but I need to help them with their finances. What are my options?

Expert Advice:  This is one area where planning ahead before there are health issues pays dividends.  If your family member was smart enough to find a skilled elder law attorney to prepare a durable power of attorney for them, you may not have much to worry about.  A power of attorney that addresses elder law concerns and needs will provide you all the authority you need not only to pay their bills and manage their finances, but also to plan ahead to preserve and protect their assets.  If your family member has a basic power of attorney, you may have some ability to manage their finances, but not the ability to strategically engage in asset preservation or Medicaid asset protection. 

If your family member did not create a durable power of attorney while they were competent to do so, you will likely need to file a Conservatorship action in Probate Court.  This process will give you restrictive access to their funds either through a bonded account or through a restricted account that requires Court authorization for each dollar you spend.  If you need to sell an asset, such as a parcel of land, you will need to file a Petition to Sell Real Estate and comply with all of the Court requirements for notice, valuation, and accounting.  The Court process to appoint a Conservator usually takes several months if it is uncontested and there are quite a few extra costs you as the Petitioner will be required to pay.  Once appointed, there is very strict oversight by the Court.

The bottom line is that if your family member is willing and able to do planning in advance of becoming incompetent, it can be a big saver of time, money, and extra work.

Concern: I know I need to create or update my estate planning documents, but I don’t know who to choose as my agent or agents.

Expert Advice:  Choosing the right agent to serve for you in the event you cannot make decisions for yourself can be a daunting, but very important decision.  First of all, it is important to pick agents and back-up agents.  I normally recommend having 3 named in your documents. 

For health care agents, remember that this person decides where you will live and who may visit you.  They also make important end of life decisions related to extending your life through artificial measures.  Your health care agent will act if you are unable to competently communicate your wishes.  It is a good idea to communicate with your agent in advance and let them know what your desires are for end of life care.

Financial agents, such as an agent under a durable power of attorney or a successor trustee of a trust will be responsible for your bills and finances to varying degrees.  The agent you choose should be someone who is financially responsible and is not experiencing their own financial issues, such as bankruptcy, divorce, or unemployment.  This is a role where birth order may not be the best indicator!  If you don’t have a trusted family member to serve in this role or enough back up agents, there are other options to consider to avoid a Conservatorship action down the road.

Remember, each situation is unique.  You will need to utilize the plan that is best for you and your family.  But one thing is true for everyone -  having a plan in place before you need it can make a world of difference.

To submit your Elder Law Concern to Ask the Expert, please email your Concern to Melissa@LawyerLisa.com.  All Concerns are subject to re-writing by the Expert and all Expert Advice is general in nature.  For legal advice regarding your situation and to have your specific questions answered, please contact LawyerLisa, LLC at info@LawyerLisa.com to schedule a consultation.  For additional information, please visit https://www.LawyerLisa.com/lcp  Lisa Hostetler Brown is a Certified Elder Law Attorney, certified by the National Elder Law Foundation, ABA accredited.