No one likes to consider his or her own death or disability let alone plan for it. The simple fact is that there will be a point when you can’t make decisions for yourself. Sometimes it is due to a disability during your life. It also happens when you die. It is critical that you plan for having your important decisions made when you no longer can.
A properly designed and prepared elder law plan provides you with someone you trust to make your important decisions when you can’t. Every elder law plan is unique to the person setting up the plan. A good elder law attorney can benefit you by counseling you on what you need and by helping set up your elder law plan.
All Indiana elder law plans should consider these seven important elements:
Important Element #1: A will. Everyone has a will. It’s true. Even if you have never written a will, Indiana had provided one for you. You will find this will, known as the law of intestacy, under title 29 of the Indiana Code. You should read it. You will probably find it is not what you want. Everybody needs a properly drafted will to make sure their decisions are carried out after their death. It doesn’t matter how few assets you have or if you have a trust, you still need a will.
Important Element #2: A durable power of attorney for financial decisions. If you are not able to make your own decisions, then this legal document gives someone else the authority to make financial decisions for you. You get to decide what kinds of decisions are made for you and when a person can start making decisions on your behalf.
Important Element #3: A durable power of attorney for health care decisions. When you can’t communicate what medical procedures you want or don’t want, then this instrument comes into action. You pick someone to make health care decisions for you when you can’t. Indiana law requires that every effort is made to find out what you want to be done. It is important to have a frank conversation with those who might make your health care decisions in the future so they understand what medical procedures you want used and when certain procedures are not to be used. Please don’t assume your family understands your wishes.
Important Element #4: A living will. This is one of the most requested documents I see in my practice. It is one that I rarely draft unless I am specifically directed to do so. Here’s why I don’t care for them. When someone requests a living will, what they really want is an advanced directive document. My durable power of attorney for health care decisions is a complete Indiana advanced directive. The Indiana living will statute is very narrow. This document only comes into effect if these three conditions exist: (1) I have an incurable injury, disease, or illness; (2) your death will occur within a short time; and (3) the use of life-prolonging procedures would serve only to artificially prolong the dying process. Most people are surprised to learn that Indiana’s standard Living Will does not cover comas.
Important Element #5: A trust. Do you need a trust? It depends. There are many kinds of trusts serving many different purposes. Some trusts can minimize taxes while others avoid probate. This is a very technical and ever-changing area of the law. The most common kind of trust is the revocable living trust. This trust is set up during your life and all of your assets are transferred to it. You can make any changes to the trust during your life. If you become unable to make decisions while you are alive, the successor trustee can make them for you. This trust will often avoid guardianships. At your death your assets are distributed exactly as you want without the hassle and expense of probate. These trusts are not for everyone. They take time and effort to set up and maintain properly. If you leave too many assets outside of the trust you may have to go through probate anyway. Your estate planning or elder law attorney can guide you through the process of selecting and setting up any needed trusts.
Important Element #6: A long term care insurance policy. Did you know that 1 of 2 women and 1 of 3 men over the age of 65 will need nursing home care at some point in their lifetime? Indiana has a very important program called the Indiana Long Term Care Insurance Program (ILTCIP). This program provides participants with the ability to protect their assets from being completely spent on nursing home expenses before qualifying for Medicaid. Long term care is one of the biggest threats to your hard earned assets. This program requires the use of certain long term care policies know as “partnership policies.” Find out more at http://www.in.gov/fssa/iltcp/
Important Element #7: Personal Elder law Information Organizer. Imagine that you have to take over the decisions for someone else. Where do you start? What needs to be done? Who needs to be contacted? Where is everything? This often neglected but important part of your elder law plan meets the needs for someone who must make decisions for you. This document pulls together all of the important information one needs when you can no longer make decisions for yourself. This saves countless hours and hardships for those you love who need to act on your behalf.
Please don’t wait until it is too late. One of your most important choices is who will make your important decisions when you no longer can. Don’t let the court or others make this critical choice for you. Remember that not every attorney handles estate planning and elder law matters. Ask your attorney if he is a member of the National Academy of Elder Law Attorneys. If you are missing any of these important elements, then consider contacting your elder law attorney to have your elder law plan reviewed.
Jerry L. Siefers, Jr. is an attorney with Jones, McGlasson & Arter, P.C. in Bloomington. He limits his legal practice to elder law, estate planning, probate, and mediation.
Provided as an educational service by Jerry L. Siefers, Jr. If you have questions or comments, you’re invited to contact Jerry at firstname.lastname@example.org or (812) 332-4431
If you have questions or comments in the areas of elder law, estate planning, trust (including special needs trusts), probate, guardianships, or Medicaid asset protection, you’re invited to contact Jerry as follows:
Jerry (J.L.) Siefers, Jr.
Counselor and Attorney at Law
Jones, McGlasson & Arter, P.C.
205 South Walnut Street Suite 3
Bloomington, Indiana 47404
TEL: (812) 332-4431 * FAX: (812) 332-0554
You’re invited to call me!
I’ll gladly talk with you over the phone or in person for free. I’ll help you understand what decisions you face so you can properly plan for you and your loved ones while protecting your assets.