Estate planning involves a careful analysis of a person’s assets, debts and obligations, to determine to whom their assets may pass by title, beneficiary designation, intestacy or Will and/or trust provisions at the time of their death. The person’s age, health, marital status, family makeup, goals and intentions are all considerations important to the estate planning process. Estate planning also involves planning for disability or incapacity during your lifetime through the designation of Financial and Health Care Agents. Medicaid and nursing home and asset protection planning is another aspect of Estate planning that can be employed during a person’s lifetime to attempt to preserve wealth to be passed on to their beneficiaries at death.
The most common documents used in the estate planning process are a Will (also referred to as a “Last Will and Testament”), a Durable Financial Power of Attorney (POA), a Durable Health Care Power of Attorney/Living Will (sometimes referred to as an “Advance Directive for Health Care”), and in certain cases, lifetime trusts and special or supplemental needs trusts.
Every adult should have a Will. If a person dies without a Will, there is what is termed an “intestacy” and the Pennsylvania Estates and Fiduciaries Code governs who may act as Administrator (as opposed to an Executor) of the person’s estate, as well as, the persons entitled to inherit from the deceased person’s estate. The intestate heirs of a person who dies intestate will vary depending upon the relationship and structure of the deceased person’s surviving family members.
A Will allows a person to appoint an Executor to act on behalf of the estate, appoint guardians for minor children, create testamentary trusts and appoint trustees for minors and beneficiaries with special needs. Wills written without a lawyer rarely carry out the person’s wishes and often lead to challenges regarding validity and interpretation that could otherwise be avoided.
Durable Financial Power of Attorney and HealthCare Power of Attorney/Living Wills
Estate planning also involves planning for disability or incapacity during your lifetime through the designation of Financial and Health Care Agents. These documents have specific statutory language and execution requirements that must be included in order for the documents to legally confer authority to the Agent to transact certain business and make decisions on behalf of the principal or maker and to be readily available by financial institutions and health care providers. Thus it is important for these documents to be written by a lawyer to ensure that they comply with the most recent statutory requirements.
Medicaid and Nursing Home and Asset Protection Planning
Long-term nursing care can exhaust your assets. While Medical Assistance (Medicaid) may be available for long-term care for those who are eligible, it has complicated financial qualification rules that can prevent a long-term care recipient from qualifying for the program. It may however be possible to qualify for Medicaid sooner rather than later without exhausting all of your assets. By planning for Medical Assistance, and long-term care costs, you may be able to protect a portion of your assets for your loved ones.