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Articles Posted in Elder Law

Legal planning to ensure an elder can qualify for long-term care benefits for skilled nursing care while also passing assets to beneficiaries or preserving assets for their own use.

While many people put off thinking about death, recent policy initiatives have made this not the case for many. With a dramatic increase of states considering right-to-die initiatives—that make it possible for terminally ill patients to use medicine to end their lives—strong opinions over the topic are rampant. Colorado passed The End-of-Life Options Act (the Act), providing terminally ill individuals with the right to use prescribed medication to end their lives. Although many individuals do not think about how this Act could impact estate planning matters, it does. There are critical estate planning measures individuals with terminal illnesses must take to aid their loved ones after their death.

After failing to pass in the Colorado legislature, the End-of-Life Options Act was placed on the Colorado ballot in 2016. This initiative passed and led to the bill’s enactment, which allows terminally ill people to request assistance in dying—but in only certain defined situations. To request a prescription for life-ending medication in Colorado, a patient must be: at least 18 years old; a Colorado resident; mentally capable of making and communicating health care decisions; diagnosed with a terminal disease in which they will die over the next six months. Beyond these requirements, the patient will only be prescribed the medicine if they make three requests—two verbal and one written— for the medicine at least fifteen days apart in front of two qualified, adult witnesses. The doctor must also offer the patient the opportunity to withdraw the request for the medication before providing the prescription.

For individuals with a terminal illness, it is critical to have an estate plan in place before they pass away. This is because an estate plan explains how individuals want to be cared for in their final days and what measures should be taken—this can include taking actions legalized under The End-of-Life Options Act, if the individual has a terminal illness. Otherwise, it provides instructions on the medical interventions they want to be taken, and who should make decisions on the individual’s behalf if they become incapacitated. Additionally, creating an estate plan provides for how, and to whom, they want their assets to be distributed. If a person does not have an estate plan before they die, the court will decide how their assets will be handled. While creating an estate plan—and specifically making end-of-life decisions—may be uncomfortable, it alleviates a major source of stress in the end.

When a senior reaches full retirement age, they can elect to receive monthly Social Security benefits. However, for many reasons, individuals often elect to delay filing for Social Security, either to increase the monthly benefits they will later receive or to continue working and avoid paying taxes on these benefits. Because filing for Social Security and delaying the benefits is a personal decision, and can have broad implications on a Colorado estate plan, below are some common questions aging individuals have about the Social Security process and if they should delay their filing.

What is the Full Retirement Age for Social Security Benefits?

The full retirement age – where seniors are entitled to start receiving their full monthly benefit – depends on an individual’s year of birth. For those born between 1943 to 1954, the full retirement age is 66 years old. For individuals born between 1955 to 1959, the full retirement age is between 66 years and 2 months to 66 years and 10 months (increasing by two months each year). For everyone born in 1960 or later, the full retirement age is 67 years old. It is also important to note that people can file for Social Security benefits as early as 62; however, they are not eligible to receive their entire monthly stipend until they reach the full retirement age.

Am I Eligible to Delay My Social Security Benefits, and What Will Delaying Them Do?

It is a common misconception that seniors must file for Social Security benefits once they reach full retirement age. Rather, seniors have the option to delay their filing, which means they are electing to not receive benefits until a later age, with the knowledge that their benefits will then be more per month. Delaying can grow a person’s benefits up to 8% per year until the age of 70. For instance, if a senior is entitled to $1,500 per month at the full retirement age of 67, they can increase their monthly benefits by $360 if they wait until age 70 to file.

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The Power of Attorney can be a powerful tool or a dangerous weapon that can be turned against its creator. We often assume that when we create a Power of Attorney, we are ensuring that the person we name can do only what we want them to do. We also assume they can do it as easily as we can. Finally, we may assume that a Power of Attorney avoids the need for conservatorship or guardianship when we become incapacitated.

In fact, a Power of Attorney is both more powerful and less powerful than we need. Basic Powers of Attorney often do not include the provisions we need to plan for nursing home care. If the Power of Attorney does not specifically authorize an action – like picking up mail or signing required form Powers of Attorney at banks and investment companies – then that action is not authorized.

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Thief Daughter

F Forbes recently shared its list of 7 Major Errors in Estate Planning. I’d like to share them, one at a time, with comments, and then add a couple they missed. Rather than swamp you with a treatise, here’s one that I really feel passionate about.

There are so many easy ways to screw up your estate plan – which can damage family relationships for life in many cases – and so few ways to make sure it’s right. I’ll share how our clients get peace of mind that their plan’s going to provide what they need and bring their family closer, not the opposite.

Not Having a Plan

It’s that time of year again. No matter what your religion or traditions, you may be planning to use time off from work to visit with family including your parents. Some children will notice their parents slipping – unable to process things the way they used to. Other parents will appear just fine but you’ll still worry about the what-ifs.

AgingParents.com did an article listing “5 Things You Need To Do After A Holiday Visit With Aging Parents.” Depending upon how prepared your parents are, you could go through these five keys in five minutes or, at the other end of the spectrum, you may need to schedule a family meeting and another visit.

First, find out what legal planning documents your parents have. If they have not been reviewed in the last three years or if your parents don’t have any, help your folks find an estate planning attorney in their state who can help them make sure they have an effective plan in place. Because every family is unique, I won’t attempt to list every legal document they might need, but here are some of the most frequently necessary:

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