Page 27 - April2019_BarJournal

WOMEN IN LAW

a conversation with her mother about the benefits take steps to prepare for a time when they are no attorney, healthcare powers of attorneys, living
of doing proactive planning now, to make sure that longer there to provide for him. The benefit of such wills, and HIPAA authorizations.
Carol has the proper planning in place should her a trust is that it can be used to supplement any When dealing with day to day concerns for
health decline and additional help be needed. Carol governmental benefits that he may be entitled to. her mother, children, and herself and husband,
should have all the estate planning documents that Additionally, because it will never be in his control, it is far too easy for Susan and her family to
all adults need: a revocable living trust and/or a will, Susan can determine what should happen to the push off conducting estate planning, but a few
a financial power of attorney, a healthcare power of trust assets when Tommy dies. Any remaining simple steps can make things easier for both their
attorney, a living will and a HIPAA Authorization, funds could go to their daughter or grandchildren short-term and long-term interests. Fortunately,
likely listing Susan as her agent where appropriate. if they wished. If the funds were given directly to an elder law attorney can help sort through the
This will assure that should Carol’s health decline Tommy, while it would still be possible to establish varying issues of various family generations
or if she were to become incapacitated, Susan a special needs trust, that trust would be required and can help develop a plan that can make the
will be able to take care of Carol’s finances and to include a payback provision paying back the stressful situation of caring for loved ones easier.
healthcare decisions without needing to attain state for any Medicaid benefits paid on Tommy’s
guardianship. There is additional planning that can behalf. A distribution directly to Tommy could
help prepare for possible long-term care. If Carol also temporarily disrupt any benefits that he Christina M. Bushnell
is healthy, perhaps some Medicaid planning could was currently on. While it would make sense to and Dawn E.
be done so that there could be assets preserved establish the trust established now, often times McFadden are sisters
to supplement her care should she someday need it provides the framework for future care while and owners of
to go into a skilled nursing facility. If planning is largely remaining empty of assets. Susan and her McFadden Bushnell
done at least five years before skilled nursing is husband could list the trust as beneficiary to their LLC, where they help clients with elder law planning,
required, this money can be preserved without life insurance and retirement funds, assuring special needs planning and general estate planning.
penalty from Medicaid. Even if five years is not that there would be funds available for Tommy’s Christina has been a CMBA member since 2010.
realistic, planning could be done to strategically care when they are no longer here, and just as Dawn has been a CMBA member since 2005.
spend down mom’s assets. Most importantly, mom importantly, providing future caregivers a roadmap They can be reached at (216) 714-0090 or
can make conscious choices now that will help to to how to provide care and advocate for him. www.mcfaddenbushnell.com.
control her future. Others, such as grandparents, can be encouraged to
What about Susan’s daughter, Emily, who direct any testamentary gifts to the trust rather than
just went away to college? Much of the same to Tommy outright. In addition to creating a trust
planning that was done for her mother should for Tommy’s benefit, Susan might want to create a
be done for her daughter too. Although simpler Memorandum of Intent. This evolving document, Want to
documents will often suffice, documents while not legally binding, helps to provide details
such as a will, a durable power of attorney, a about Tommy’s care, needs, interests, healthcare
healthcare power of attorney, a living will and providers, therapies, and other information that take center
a HIPAA authorization are just as important. would be useful should someone need to step in
Unfortunately, many parents of young adults and become Tommy’s caregiver and advocate.
realize that their relationship legally changes Last, but certainly not least, Susan and stage at
with their child only when an emergency arises. her husband should do estate planning for
Healthcare providers, landlords, universities, and themselves. By establishing a revocable living
financial institutions need not, and often cannot, trust, they can manage their assets during their the CMBa?
provide information to the parent of an adult lifetime and plan for what they want to happen
child without the child’s permission. If Emily with their assets after death. Importantly, they
lists Susan as her agent for a durable power of can name a guardian for minor children should
attorney and healthcare power of attorney, Susan they die or become incapacitated. They also
will be able to step in and assist her daughter can control how their assets should go to their
should there be an emergency. Another benefit children. The assets dedicated to Tommy can be
of doing this planning when Emily is a young directed to his supplemental needs trust. Assets
adult is that it is a familiar topic as she enters her that are to go to their typical child can be made
adult life. Almost half of adults do no planning available in stages as the child matures. Also, if Chairing a program or
as many do not wish to address the weighty designed appropriately, any assets given to Emily speaking at CMBA CLE is
issues of death and incapacity. Future planning through a trust can remain in the trust, offering
for Emily will be easier because she has already creditor protection that she would not be able to a great way to build your
started to address these issues. establish on her own. Finally, a revocable living exposure! Email your
It would also be wise to do some advanced trust, if fully funded, avoids probate when the name and CLE idea to
planning for Tommy. Susan and her husband could grantor passes away. Probate can be an expensive, Cle@CleMetroBar.org.
establish a third-party supplemental needs trust time-consuming and public process. Susan
for their son’s benefit. This would allow them to and John should also create durable powers of
April 2019 Cleveland Metropolitan Bar Journal | 27