When Kansas City residents consider creating an elder law plan or need answers to elder law questions, there are certain myths that usually become an issue. The reason there are misconceptions regarding elder law is that most people are not familiar with this particular area of the law. In this article, we will dispel many of the common myths regarding elder law issues.
Spouses are not always automatically authorized to handle each other’s affairs
A common fallacy is that spouses will automatically have the authority to take over each other’s affairs, if the need arises. However, that is not true in every situation. If there is an account that is not in your spouse’s name, you may not automatically be able to gain access. One of the most important estate planning tools, for this reason, is a power of attorney.
A power of attorney is required in order to provide authority to someone else to manage your affairs in the event you are unable to do so. Establishing a power of attorney is particularly important as we age, as the aging process often leads to the decreased ability to handle one’s own affairs. Therefore, even if you are married you need to take the steps necessary to create a power of attorney.
You cannot simply give away your house or property in order to qualify for Medicaid
Many people are under the impression that they can simply give away their assets in order to qualify for long-term care coverage through Medicaid. This myth often causes the most trouble for clients. Although to qualify for Medicaid benefits, you must meet certain asset restrictions, it is important to remember Medicaid imposes a five-year asset transfer restriction. In other words, if you apply for Medicaid and you transfer assets in order to qualify within the previous five years, you generally will not qualify.
You don’t have to have a big estate to need estate planning
Unfortunately, many clients believe that because they aren’t particularly wealthy, they don’t need a will, or that they can’t afford an estate plan. But the truth is, regardless of the size of your estate, dying without a will can have many unintended consequences. As your elder law attorney will tell you, if you die without a will your property will be distributed to your heirs based on the laws of intestate succession in your state. If you have an estate plan, however, you have the opportunity to determine who will be the beneficiaries of your estate.
More importantly, Kansas and Missouri’s laws of intestate succession do not provide for special circumstances such as incapacity or minority of a beneficiary. With a will, you can include specific provisions to deal with these issues. Finally, intestate succession laws do not deal with the custody of a minor child in a case where both parents die. With a will, you have the opportunity to designate who should become guardian of your minor children, if necessary.
Starting the estate planning conversation with your parents
Bringing up the need to plan for death with your parents is typically not an easy thing to do. The first step, before you actually start the conversation, is to talk to all family members involved to make sure you are all in agreement about what is needed. Resolve any disputes ahead of time so that you can approach your parents with a united front. Doing so should reduce the risk of putting your parent on the defensive. The planning will be much easier if your parents still take some part in the decision-making. The next step is speaking with an elder law attorney to discuss the necessary components of the plan.
Determining how to balance autonomy with safety
Balancing the need of an aging parent to be independent with the need to maintain their health and safety can be a huge challenge. The best way to approach this challenge depends on the particular issues of that family. In some cases, where guardianship becomes necessary or is simply anticipated, the possibility of losing independence can be overwhelming or disconcerting. Guardianships should never be sought simply because a parent makes a decision you do not agree with or based on a specific disability or medical diagnosis.
Join us for a FREE workshop! If you have questions regarding elder law myths, or any other estate planning matters, contact Gaughan & Connealy for a consultation either online or by calling us at (913) 262-2000.