Care Across America
"Care Across America, an Approved Senior Network® Podcast"—your go-to source for engaging conversations and practical insights from home care and senior care experts across the United States. Each episode will spotlight industry professionals, and their referral networks, sharing impactful stories, proven strategies, and innovative solutions in senior care. This podcast is perfect for professionals, adult children of aging parents, and family members struggling with senior care choices and care.
Care Across America
Planning Ahead: The Elder Law Advantage with Bill Nolan
What's the difference between elder law and estate planning? According to attorney Bill Nolan, it's about timing and focus. While estate planning looks toward what happens after death, elder law concentrates on protecting assets and ensuring proper care while you're still alive but potentially unable to manage your own affairs.
This eye-opening conversation reveals why having a simple power of attorney could save your family thousands of dollars and countless headaches. As Nolan explains, even married couples need these documents – especially when it comes to accessing individual retirement accounts during a health crisis. Without proper planning, a spouse might be unable to use funds to pay for necessary care, despite decades of marriage and joint financial planning.
We explore the concept of "red flag moments" – those life changes that should trigger a conversation with an elder law attorney but often don't. From selling a family home to experiencing a health scare, these pivotal moments represent opportunities to protect assets that might otherwise be vulnerable to Medicaid spend-down requirements. The discussion also covers special needs planning, how to navigate blended families with multiple sets of adult children, and why dying without a will costs heirs approximately ten times more than creating proper documentation.
Perhaps most surprising is learning how affordable preventive legal planning can be compared to the alternatives. A power of attorney costs about one-tenth what a conservatorship would, while proper asset protection strategies can preserve a lifetime of savings that might otherwise go to nursing home costs. With free consultations and fixed-fee services, there's little reason to postpone this critical planning.
Don't wait until you're facing a crisis to get your legal affairs in order. Schedule a conversation with an elder law attorney today to protect yourself and provide your loved ones with clear guidance when they need it most.
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I'm Bill Nolan. My firm is the Alabama Eldercare Law Firm. I've been a lawyer since 82. This particular firm has been in operation since 2006, when I for lack of a better way to describe it started specializing in elder law. It's a separate branch of the law here in Alabama and it's focused on helping seniors and the adult children of seniors manage their care and manage their assets as their condition begins to decline and their decision-making ability might deteriorate. That's really what elder law is all about. We're in Birmingham, alabama, but we work all over the state of Alabama.
Speaker 2:Great, awesome. And I think that people get confused if they're not in this business and haven't experienced this between estate planning and elder law. Maybe you could clear up the confusion there a little bit.
Speaker 1:Yeah, that comes up a good bit between elder law and estate planning, because most people are roughly or vaguely familiar with the term estate planning and the truth is there's a good bit of overlap. There's a saying that all elder law attorneys are estate planning attorneys, but not all estate planning attorneys are elder law attorneys. Estate planning typically got its beginnings in the area of wealthy people wanting to preserve and pass along their wealth to the next generation, so the focus tended to be on more well-to-do individuals and helping them avoid taxes. And that's still the driver for a lot of estate planning firms is what can we do to avoid taxes? Elder law typically focuses on the here and now, not what happens after death. We're focused on how can we make sure this 85-year-old veteran is able to protect and preserve what he's been fortunate enough to accumulate over his lifetime.
Speaker 1:Who cares what happens with taxes after he's gone. We want to make sure his assets are here to take care of him and we want to make sure the right people are making those decisions. And are there any benefits he might be entitled to, like veterans benefits or Medicaid benefits? How can we help him pay for nursing home care? Estate planning attorneys focus more on the higher wealth individuals and they can self-pay for nursing home care. They don't need veterans benefits. Our focus tends to be on people of more modest means. That's the big single difference, I think.
Speaker 2:And, having talked to many elder law attorneys over the years, I think there are so many things that we don't do in advance of needing care. What are some of those things that you would recommend that anybody like I'm talking power of attorney? What are those things that we don't do in advance of needing care? What are some of those things that you would recommend that anybody like I'm talking power of attorney? What are those things that we should have set up before there's a crisis?
Speaker 1:Yeah, that's a great question. I hate to have a client come in and say I wish somebody had told me that before now. You know that means somebody wasn't doing their job. Now it may mean that the client was too busy and didn't think about asking the right questions. We try to do seminars and presentations and talk to church groups and senior centers and make people aware. Now what's that saying? You can lead a horse to water, we can talk to a blue in the face, but if people don't take action there's not much we can do about it. You're right.
Speaker 1:Having a good power of attorney in place will allow your kids to avoid having to go through an expensive and time-consuming conservatorship in the future. It's a lot cheaper to have a power of attorney by about a factor of 10 or 15 than it would be to go through a conservatorship. You're not really giving up anything and you're getting about 95% of the benefit right there. Another thing you can do is there's a type of deed we have in Alabama.
Speaker 1:Some states have them by other terms. We call them life estate deeds, some states call them ladybird deeds, and the idea there is a person can hang on to their home while they're alive but transferred immediately at death, like having a beneficiary on a deed. They're great tools, very flexible, but you have to put them in place while you're still alive and have capacity. They avoid probate and they also avoid a Medicaid recovery lien, but people don't know about that and they have to be in place for five years and a person has to have capacity to sign that deed in the first place. So that's a typical example of something that people don't really know about but could benefit greatly from if they learned about it.
Speaker 2:Avoiding probate, anything you can do to avoid probate or a long drawn out probate anything you can arrange in advance. I find that the struggle for the kids especially if there's a lot of siblings involved, if family dynamics aren't that great having this all decided in advance helps avoid a lot of I don't know disagreements and dysfunction among the kids. And really, even if it's just a single child like I'm, an only child knowing what my mom wants now or my dad wants now is very helpful to me. Not having to make that decision when they're on a ventilator and can't talk.
Speaker 1:Absolutely, yeah, absolutely. And as an only child you shouldn't have to jump through the same hoops to transfer your parents' assets to you that a family with five kids have to jump through. But unfortunately the law doesn't distinguish there, so you still have to go through the same formalities, the same delays, the same. We call them creditor claims periods in Alabama. You don't really have a choice, but your parents have the choice. They could avoid that if they choose to avoid probate.
Speaker 1:And people don't realize that for some reason people think I don't need a will because my kids know what they're going to get, or I don't need a will because my estate's not big enough. Or I don't need a will because my kids know what they're going to get. Or I don't need a will because my estate's not big enough, or I don't need a will because it's going to go to them when I die anyway. And the fact is that dying without a will could cost your kids about 10 times what you paying for a will would cost you. So is that wise money management? They think they're saving money by not having a will, but they're actually spending 10 times as much money by exposing their kids to intestate probate. They don't realize that.
Speaker 1:Another one of the simple stuff. I wish somebody had told me that before now.
Speaker 2:Oh, absolutely, and so if you have a will, things still have to go through probate, but it's a much more efficient process because everything's spelled out and the judge's pretty much going to go with what's there. That's right. No one's arguing with the will.
Speaker 1:We say that probate isn't avoided, but a will is a fast track through the process. You still have to go through the process, still have to pay the fees and wait the delays, but you don't have to jump through nearly as many hoops as you would if you died without a will.
Speaker 2:And what about avoiding probate altogether? That would mean having some kind of trust, right.
Speaker 1:Generally, a trust is the easiest way to avoid probate entirely, because everything is owned by the trust and the trust isn't affected by your death. The assets still belong to the trust, and the language of the trust would say after the trust or where the person who creates the trust has died, the trustee. The language of the trust would say after the trust or where the person who creates the trust has died, the trustee the person managing it is to distribute the assets this way, and that's a typical revocable living trust. But a lot of families don't even need the complexity or expense of a trust and here I am cutting into my own income, because lawyers make a lot of money doing trust. But the reality is most families have two buckets of assets. They have their investment retirement account investment assets and they have their real estate. Everything else is pretty nominal.
Speaker 1:Investments typically have beneficiaries on those my spouse first and my kids equal. Iras have spouse first, kids equal. Those are going to pass outside of probate regardless, so you don't have to worry about those. The house, though, is the one asset that sometimes drags the family back into probate, and if you were to use the life estate deed or the ladybird deed, in some states it avoids probate on the house and it's a tenth the cost of a trust. So in many situations we see that we can rely on the beneficiary designation on their investments already and just use a life estate deed instead of going through all the paperwork of a trust, and still accomplish the same end result.
Speaker 2:Yeah, I think that's whatever you can do to minimize what's going to happen after you pass is so helpful for your kids. Let me ask you a couple of questions that come to mind about, let's say, let's talk about power of attorney, let's rewind on that again and wife, and let's say the husband gets sick, does the spouse need to have power of attorney still, or she just?
Speaker 1:automatically gets to make the decisions? That's a great question and the assumption is why do I need a power of attorney for my spouse? And you're right, most assets in a married couple, many married couples, own their assets jointly the bank accounts either, or the investments either, or houses, joint tenancy, right of survivorship. So the well spouse can manage those assets just fine without a power of attorney at all. But they don't think about the one big asset, the IRA or the 401k. They're called IRAs for a reason they're individual retirement accounts. They're not owned by a couple. They're not owned by him or her, they're owned by him.
Speaker 1:So he's got this big IRA sitting there. He's the only person who has any say-so over that IRA. He goes into the nursing home. It's going to cost $8,000 a month. Wouldn't it be great if the wife could use his IRA to pay for his nursing home care? But if she doesn't have a power of attorney, she can't touch it. She can call his investment advisor and complain all day long and the investment advisor goes sorry, I can't help you. He's the only one who can make that decision and he's had a stroke and can't speak. I better do this for you. So yes, I think it makes sense for even between married couples for there to be a power of attorney in place.
Speaker 2:I would agree. And health care too, because that way at least it's in writing and, if your children aren't sure, you're the spouse trying to make these decisions having a power of attorney for health care and also having that living will which tells everyone what I want I don't want to be on a ventilator, I do want to be on a ventilator. Or when should we make that decision that I don't want to be on a ventilator, I do want to be on a ventilator. Or when should we make that decision that I don't want to live anymore? Those are hard decisions to make, even for a spouse sometimes. And having all of that put in place and we haven't talked about living wills but that's another thing that you can. I'm sure you help with that all the time, putting together a living will. I know hospitals can help with that too.
Speaker 1:We tell people that having a will alone is really not being well protected.
Speaker 1:A will takes care of your stuff after you're gone, which is nice, but it doesn't do you any good while you're alive. The health care directives we call them health care directives here in Alabama and the power of attorney are there to protect you while you're alive but unable to take care of yourself, and in some sense that's more important than what happens to your stuff after you're gone. So we explain to people what a health care directive is designed to accomplish, that is, to make sure your wishes are honored and carried out, not somebody else's wishes. You do have to make a decision, but it's a gift to your kids and your spouse. If you make that decision, you are relieving your kids from having to make that same decision, and nobody wants to make that decision for anybody else. If you can make it for yourself and all they have to do is carry out your wishes, it's a whole different dynamic than having them sit there, sweat, have to justify their decision to the siblings and all that their decision to the siblings and all that.
Speaker 2:Yeah, feeling guilty in here is one thing, but having to face a sibling that may not agree or who hasn't been around for 10 years and then, suddenly reappears and says, oh no, yeah, those are the hard the things that I think, just having been around the block for a while and doing a lot of things with seniors and families been around the block for a while and doing a lot of things- with seniors and families.
Speaker 1:people come out of the woodwork when someone gets sick. A lot of history between brothers and sisters or sisters and sisters will rear its ugly head at that point when everybody's under stress and maybe there's assets to be divided up and decisions to be made. It's amazing, they say, you never truly get to know somebody until you go through the probate process with them.
Speaker 2:Yeah, that can be true. Yeah, absolutely, I can imagine that. But, yeah, but. So planning ahead number one that's really what everybody should be doing, and even funeral planning, which is not exactly a part of elder law planning, but having a funeral plan in place is so helpful. We see a lot of times people obviously pass unexpectedly. It doesn't always happen when you're expecting it, and so having plans in place can also help with that entire process.
Speaker 1:I think something people don't realize or take into consideration is, in a typical marriage first marriage kids are both your kids. It's fairly straightforward making plans. But when you have a step kid involved, you have a second marriage or a third marriage. You have adult children who didn't grow up together coming together and you don't know which spouse is going to die first. You don't know how much time is going to go by between the first and the second death. You don't know whose kids are going to stay involved or what influence they might have on the surviving spouse. You don't know if the surviving spouse is going to marry yet another time.
Speaker 1:There's so many questions that can happen and oftentimes the adult daughter has been making decisions for her mom or her dad after the death of the first spouse and now they remarry and this new woman or new man swoops in and starts making all these decisions. The dynamics can be all over the map and usually they're not good dynamics. So helping families who are in a second or third marriage understand all of the hurdles, bumps in the road that they might encounter is one of the things that we try to help with. And you know, usually in a second marriage the husband and wife think oh, we love each other and everybody's going to get along just peachy keen. And I get to see that happen.
Speaker 2:I think it's. I can use myself as an example because I'm not telling on somebody else, but what I can say is that my mother and her second husband have done an excellent job because they were married when all of us kids were adults. So we didn't know each other until they got married and we don't live close together. So they live in Kansas and I live in Missouri and our parents live in North Carolina. None of us are close by. So it's awesome that their father has a trust with everything spelled out what goes to his wife, what goes to his kids, and my mom has a trust and everything is spelled out what goes to me, what happened? Can she? And in his trust he talks about the house Can she live in the house after he passes, if it's in his name?
Speaker 2:And I don't know all the details, but I do know that they've done a really good job of making sure that when the time comes that all of us kids are going to have to come together, probably one way or another, but everybody knows exactly what's going to happen for the most part, and that's been something that I'm very grateful for on for both of them to have done that and make sure that everybody's treated fairly and treated the way that they want them and we get along. But we also know that they've been good planners. You don't come across that very often. We just don't want to have that conversation. We don't want to have that talk. It's rough.
Speaker 1:It's rough, but it's so important to have it To avoid all sorts of negatives down the road, and I wish more people would plan like your mom and her husband had planned.
Speaker 2:I think it's, I think he he might. He's an engineer by trade, so I think he's a planner, so I think that might be part of it, but it is definitely a good thing and that still doesn't. They've had a few illnesses, surgeries as they get older, and one of us takes that trip and goes to North Carolina and reports back to everybody else. How's everybody doing? And they were all good about trying to be involved, but they definitely. But there's going to come a time when all three of us are going to have to come together and figure some stuff out, and we're aware of that. But yeah, planning ahead has helped tremendously. What would be planning ahead is probably your greatest piece of advice. But when people come to you and they maybe they are facing a crisis, what are some of the things that you can do that really help them move to the next step or get their ducks in a row? What's your process in your office?
Speaker 1:Well, I think once somebody comes to us, we don't want to drag the process out unnecessarily. It takes people years to come to the decision. I want to go finally get a will. People have all sorts of ideas that once I sign my will I'm going to drop dead, which is not true, but people think that. So we don't want to delay the process. There's a lawyer in Birmingham I won't name names, but this lawyer takes forever to get a document out and I don't know why a person would do that. If a person's made this tough decision to get their documents in place, we should do everything possible to satisfy that person's desire as quickly as we can. That's our goal. We also don't see it just as a task. We see it as a step to something else. It's a step towards getting everything in place.
Speaker 1:We ask everybody that comes in are you a veteran? What difference does that make? It makes a lot of difference. You could have benefits, or your spouse could have benefits that you might not know about. So let's explore those benefits. What's your financial situation? I don't necessarily need to know the details if I'm doing a simple estate plan, but if we're helping somebody qualify for Medicaid now or down the road. It would be helpful to tell them what they could do now to rearrange those assets so that they could qualify sooner rather than later. What about their family situations? Do they have kids scattered around? Who do you want to make decisions for you? Who do you want to have backups? What about grandkids? Do you want to help them or not? Those are details that we try to explore. So we try to get into their family much more than they probably think we ought to.
Speaker 1:But we're doing it for a reason and in fact here's a quick story. This was years ago. This is a different checklist, but we ask everybody to fill out a checklist before they come see us. So the first meeting is not just us asking questions. We have all the answers and we can go from there.
Speaker 1:We had, on our veterans checklist, a question can the veteran use the restroom unassisted or not? Because that would go towards his activities of daily living, which would allow him to qualify for aid and attendance benefit. Yep. So a financial advisor had recommended his client come see us. We sent him a checklist and the financial advisor called me back after we'd sent him the checklist and he was laughing and he said my client called me up after he got your checklist and he said what business is it that large to know whether I can go to the bathroom or not? And so we took that question off. We thought we could deal with that in the moment rather than to create that situation. But again, it's just an example of us asking for more information than possibly people expect us to need to know.
Speaker 2:No, that's great. Coming into the meeting prepared does help move things along quickly and I know there's a lot of programs and services from veterans benefits to Medicaid all kinds of stuff and the state of Alabama probably has a few things out there that they don't even know that they could qualify for that could be immensely helpful in the event that they're needing care and VA aid and attendance pension benefit is one of those way over under underutilized programs that people just don't know, and spouses especially don't know that they could qualify for that yeah, yeah, it's uh.
Speaker 1:And these days we see a lot more veterans vietnam than we ever have, getting to that point getting older.
Speaker 2:Yeah, yeah, I would imagine so, as, yeah, I know there's, and there's a couple of other programs the VA has put in place that are really going to be helpful. And as our Vietnam vets start getting older, I'm sure that you're going to have more and more of these folks that qualify.
Speaker 1:So we just want to make sure they understand we're not pushing them to apply for the benefit, but we want them to know about it. If something come up and they needed it, we can jump on it fairly quickly. And if something come up and they needed it, we can jump on it fairly quickly. But we talk about red flag moments in a person's life and try to make people aware of that that a lot of people go through life and they just say it's my turn to deal with a heart attack, or it's my turn to deal with losing a spouse, or it's my turn to deal with my eyesight failing or whatever it might be.
Speaker 1:Those events and others are red flag moments. They're moments that should trigger in a person the awareness that maybe I need to talk to my elder law attorney about this. Is there something that I should be doing or not doing that helped me down the road? For example, let's say dad's died and daughter has been trying to talk mom into moving in to her mother-in-law suite and mom she's reluctant. She's got her bank and her post office and her church and her friends on the other side of town. She doesn't want to move to the fancy side of town where daughter lives. But there may be some reasons to do that and if mom sells her home she's going to put that money in a CD.
Speaker 1:Everybody does and it's just going to sit there and down the road. If mom has to apply for Medicaid, that CD is going to be vulnerable to Medicaid saying you've got to spend it down. Would there have been a way that mom could have protected that money? Sure, Mom could know it. That red flag moment was the moment when mom moves from home into daughter. We could have had that conversation and told her how to protect that money home and the daughter. We could have had that conversation and told her how to protect that money, but nobody asked. And now that money is going to be going to pay for nursing home care.
Speaker 2:Yeah, I think that it's definitely something that people don't think about. We've had in our family too. We've had folks that we have a lot of longevity. So we had my grandfather who wanted to give some early inheritance to his children. So he's 90 and they're in their 70s and the challenge was for my father particularly is that he should not give his son some money, because his son was already on needing care and so giving him that money would knock him out of medicaid benefits. So we had to have this long conversation about that. That's a people just have to be very careful about how money is being handed out, which is very nice and very kind, but it can knock somebody off of there, yeah, so anything CDs and inheritance be very careful about how all that thing's structured, and that's why folks need to come to you to really get down to where things are coming in. What kind of income, where is it? Gifting is a problem if they still have someone who wants to give them money in their older years.
Speaker 1:We haven't even touched on the whole issue of special needs planning.
Speaker 1:Oh yeah, for whatever reason, elder law and special needs planning go hand in hand. Oh yeah, we wouldn't think that, because a lot of kids with special needs are teenagers or young adults, and what do they have in common with seniors? The one commonality is they're both eligible for government benefits like Medicare, medicaid, social Security. And special needs planning is something we help families with as well, and gifting is something that comes up. Grandma and grandma want to help little Jimmy because he's got Down syndrome, so they provide more for him and their will than for the other kids, because the other kids are independent.
Speaker 1:Yeah that's about the worst thing you could do, because little Jimmy's not going to get his benefits until all that money spent. Is there a better way to do it? Of course there is, but you got to ask.
Speaker 2:Right? Yeah, absolutely, they're definitely special needs planning as the parents get older. We've got friends who have special needs children who are now adults and they're our friends who are all in their 50s and 60s are now worried what's going to happen when I pass away? Who's going to take care of my son? And I'm sure all special needs parents go through this thought process of what happens if I get hit by a bus tomorrow. Who's going to take care of my child, even if they're an adult? So there's all kinds of times when special needs it should start when they're young. I would imagine as soon as you can start that special needs. It should start when they're young, I would imagine as soon as you can start that special needs planning. You don't have to wait till you're 60 years old necessarily to start all of that?
Speaker 1:No, not at all. It's being able to make decisions for your adult child with special needs.
Speaker 2:When they turn 18, yeah, you have to apply for guardianship or there's all kinds of things we just don't realize. Once that child turns 18 years old, they're an adult, so we have to plan ahead for those moments so that he or she can still be taken care of by their parents for as long as needed.
Speaker 1:Yeah, Just another aspect of elder law that we don't really talk too much about because we're focusing on seniors but the kids. I think it could be anything. It could be Down syndrome, it could be cerebral palsy, it could be bipolar issues.
Speaker 2:Yeah, all kinds of things can happen. What's the best way? I know we'll put your website up on the screen. Everybody can contact you in the office phone. Is it the best way just to give you a call and talk to whoever, just get an appointment set up and get some material sent over? Is that the greatest way to contact you?
Speaker 1:We try to make the threshold as low as possible.
Speaker 2:Yeah.
Speaker 1:So we don't charge for consultations. People call us. We sit down, spend an hour with them, talk through their situation Doesn't cost them a dime, and if there's something we can do to help them, we will quote them a fixed fee. So walking out the door they'll know this is how much it's going to cost me, and not a dime more. So we've given up on the hourly billing model. People like the certainty of knowing what it's going to cost, and that's what we want to make it as easy as possible. So all it's going to cost somebody is an hour of their time to come talk to us. And make it as easy as possible. So all it's going to cost somebody is an hour of their time to come talk to us. We do Zoom, we do face-to-face, we even do old-fashioned phone calls, whatever's easy for the client. Now some people will actually do house calls if they truly qualify for a house call Now.
Speaker 1:If they just want to make it easy for them, that's different. But if somebody's a shut-in or their loved one is bedridden and they can't get caregivers while they need to meet, we'll go to their house and talk with them. We have three lawyers here. I'm the oldest, but I'm not that old. I'll be around for some time yet to come. The other let's see one lawyer's in her 50s and one lawyer's in her, I would say, late 30s, maybe early 40s. I've never asked, it's none of my business. But all to say, we have some continuity here and experience and we'd be happy to help anybody who wants to call.
Speaker 2:Great, perfect. Thank you so much, bill, for talking to us and educating our audience and letting us help folks know more about what they need to be focusing on. It's never too early to start planning.
Speaker 1:Thanks for your desire to get the word out to people, to plan ahead, smart planning, and it's very generous of you to do what you're doing.
Speaker 2:Thank you so much.
