What Should You Do if Your Parents are Getting Older

As an estate planning and elder law attorney, one of my goals as a professional practicing in this field is to educate others on the importance of planning and to assist them in designing plans that help accomplish their estate planning objectives. 

If your parents have not yet taken care of their estate planning, here are some thoughts to help get them started: 

1.  Have a discussion with them about their long-term care future. While this is not an easy or fun discussion, it can help get the ball rolling.  One effective way to kick off the discussion is to let your parents know that estate planning is so important, that you have just taken care of your own planning. Typically, a good discussion will result in the production of an action list.  You can start by asking your parents where they wish to live if they cannot care for themselves and how they will pay for that care.  Ask how they would like you to help them if they can no longer make decisions on their own. Ask if they have any insurance about which you should know. Ask where they keep their important papers and if they would feel comfortable with you having copies of key documents now. 

2. Discuss the importance of a durable power of attorney.  This could be the single most important document your parents can sign.  A properly executed power of attorney allows your parents to pick a person (or persons) to make financial decisions for them if they can no longer make those decisions themselves.  Please keep in mind that a power of attorney is not simply a form.  It is a complex document that requires a significant amount of thought.  For example, if your parents select more than one person to be their agents under the power of attorney, do they want them to be able to act separately or must all decisions be made together?  A power of attorney can be as broad or as limited.

4. Consider long-term care insurance.  Long-term care insurance can help pay for the cost of long-term care at home, in assisted living or in a nursing home.  However, there are vigorous underwriting requirements that must be met to qualify for such insurance.  Best to work with a qualified insurance agent who specializes in long-term care policies and who can explain. Also, note that most long-term care policies that are sold today are actually life insurance policies with a long-term care rider.  Before buying, it is probably a good idea to have the policy reviewed by a Certified Elder Law Attorney to make sure it is the right policy and that it fits in with your parents’ overall estate plan.  Also, it is possible that insurance may be unavailable or prohibitively expensive due to your parents’ ages.  If that is the case, they may need to consider Medicaid planning.  The sooner they do this, the better. 

5. Probate avoidance.  Probate is the legal process by which the validity of a will is proven.  If your parents can structure their estate plan to avoid probate, it will likely mean that you and the other beneficiaries of their estates will receive their inheritance sooner and with less court involvement.   The best way to avoid probate is to have a revocable living trust as the cornerstone of your parents’ estate plan.  If properly drafted, they will be in control of managing their affairs while they are capable, and trust assets will pass to their beneficiaries without having to go through probate. 

By taking the steps discussed above, you can help your parents achieve these goals.

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.elderlawnewyork.com.