Tuesday, December 09, 2008

Questions on the Estate Planning Post

An anonymous commenter asked some good questions about my recent posts on my parents' estate planning:

How much time did you spend with the lawyer?
Did your sister's husband's uncle lawyer charge for his service?
Did you find the 2nd lawyer from the bar's referral service?
What are the fees and services that s/he provided?
Did you split the bill with sister, or had parents pay the lawyer bill.

For the first lawyer, my brother in law's uncle, the cost was $500, and he spent maybe a total of an hour and a half with us. The first visit was on a Saturday afternoon, then we went back the following Tuesday to sign everything in the presence of a notary public. This was done in a big rush to have something in place before my father's surgery, and it was not the kind of full discussion this lawyer normally would have had with a client. I also believe we were getting a discounted "friends and family" rate but I don't really know for sure. Under the circumstances, we weren't doing any price comparison shopping!

The second lawyer was one that had been recommended to my father by a friend of his. I wasn't able to attend this appointment in person-- I participated via speaker phone. It took closer to 2 hours for the initial meeting to discuss and explain the various options. I think my parents are going back tomorrow to sign everything. I'm not sure what the fee will be, but I expect it to be more expensive, as setting up a trust is a bit more complicated than a simple will, I believe. It may also depend on whether the lawyer's bookkeeper helps my parents carry out the actual transfer of their bank accounts to being held by the trust-- the only reason for them not to do this part themselves is that my dad might not feel well enough to leave the house. I'll see what the final cost turned out to be and post a follow-up.

In both cases, my parents are paying the bills.

A couple other comments on the post are worth noting here:
It seems like there's a conflict of interest with your parents' lawyer. A lawyer in this situation should probably only be representing one spouse, not both spouses, especially if there are issues like the ones you're describing. If possible, I'd look into getting your mother her own lawyer and having those two and your father and his lawyer sit down together to figure things out.
Yes, the second lawyer noted that it would be a conflict of interest for him to set up anything that took control out of my mother's hands, since he is representing both of them as a married couple. My parents are not divorced and have never even been legally separated-- they have tried to just work their problems out between themselves, for better or worse. At this point, my dad has backed down from his earlier desire to give me and my sister control, and on some level I think that is the morally right thing for him to do. Despite all their troubles, my mother rushed back to take care of him when she found out about the brain tumor, and she is devoting herself to his care around the clock. She should deserve his trust-- now we just have to make sure she earns it by trying to stay on a budget.

As regards my statement that we'd just have to bit the bullet when it came to paying nursing home costs as it was probably too late to protect any assets before Medicaid's 5-year look-back kicked in, Bugbear said
I disagree that you just need to suck it up. I would set up the revocable trust in the offchance that it will be 5 years before dad needs it.
Although I'm still on the fence about whether we should do more to protect my parents' assets and make them eligible for Medicaid sooner, with a revocable trust it's a moot point. Assets in a revocable trust still are fair game for nursing home payments. If you want to protect assets, they have to be in an irrevocable trust, and the 5-year look-back still applies, which means you could get stuck with the bill for a nursing home, yet not be able to touch the assets you would need to pay it. The purpose of a revocable trust is not Medicaid planning-- it's just an alternative to a will and power of attorney, which prevents the trustees from having to go to court if you're declared incompetent by a doctor, and keeps the trustees/heirs from having to go through probate court when you die. You can still spend your money however you want, and you can change the trust at any point-- as I understand it, it's a good all-around plan with no disadvantages other than that it may be a bit more expensive to set up than a will. If you have more extensive assets or want to shield assets from Medicaid, a revocable trust would only be one part of your estate planning. But once you get into irrevocable trusts, you have to really be sure you know what you're doing, as that money will be permanently out of your control and you won't be able to touch the principal.

I picked up a copy of The Complete Book of Wills, Estates & Trusts-- I should have read it long ago, but I'm going to delve into it soon, and will hopefully be able to share some more useful information on this topic. In the meantime, check out this paper recommended by commenter Tom. I haven't read all of it, but it seems to have a pretty good explanation of Medicaid eligibility on pages 16-23.


Optioned Unarmed said...

If your dad does need to go into a nursing home, ask his treatment team if they can come up with a strategy to qualify him for needing what is officially termed "skilled nursing care". If he qualifies, Medicare will cover inpatient nursing home costs for up to 100 days. (And this is regardless of their assets - I am speaking of Medicare here, not Medicaid).

Nursing homes distinguish between "custodial" care and "skilled nursing" care. Both are typically provided in the same facilities. Medicare will only pay for nursing home if the patient requires "skilled nursing care", and the maximum for that is 100 days.

Both of my parents, during their final months, had a significant portion of their nursing home costs covered by Medicare (not medicaid) under this rule.

Of the four months my mom spent in a nursing home, we only had to pay for one month of it out of pocket, after Medicare stopped paying.

After the nursing home, my mom spent three weeks in an inpatient hospice facility, which Medicare also paid for.

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