Elder Law vs. Estate Planning

By Steven J. Gibbs, Esq.

Hello Friends & Colleagues!

Terms such as “Estate Planning”, “Elder Law”, and “Medicaid Planning” roll easily from the lips of well meaning attorneys but does anyone know what they mean?  Worse yet, how do you know when you need an Estate Planning Attorney verses an Elder Law Attorney?

It is first and foremost important to understand your need for general Estate Planning. I have often written about estate planning and the benefits of utilizing a revocable trust to avoid probate, plan for disability and provide asset protection for beneficiaries. The most important thing is to do some planning whether you have $100 dollars or 10 million dollars, because failure to have a plan is leaving the welfare of yourself and your family to the will of the state laws.  In fact, you already have a plan under the state laws but it most likely is not what you would want.  Probate is a court process needed to retitle assets when you don’t have a trust and the probate process often creates needless stress and heartache for families working to settle estates.

So when people recognize their need to do some estate planning, they will often end up in the office of an “estate planning” attorney who despite best intentions knows nothing about elder law and Medicaid planning.  This can be a big problem for elderly clients.

It is critical to understand how elder law and Medicaid planning overlaps and interplays with general estate planning concepts. I’ll do my best to unpack this for you…

Typical estate planning undertaken by most attorneys in this field will address all of these concerns by analyzing the estate to determine the probate exposure and then implementing revocable trust planning in many cases to limit the need for probate. Additionally, a savvy estate planner will often address estate tax planning issues and will implement strategies such as marital and family trusts or QTIP trusts or GST (Generation Skipping) trust strategies in order to limit estate tax exposure. Surprisingly, in the heat of the estate planning frenzy, the need to look at elder law and Medicaid planning concerns is often missed.

Why is this important? First a bit of background…
Medicaid is a need-based program which pays for things like long term nursing home care. This program is distinct from Medicair which is an insurance program for everyone which covers certain healthcare items once a deductible is met. Medicaid requires a “spend down” of the estate assets unless certain estate planning measures are taken to protect the estate.

Where elder law and Medicaid planning concerns often arise and should be considered is where of course the spouses are elderly and this is hard to define because the baby boomers are aging well in many cases and often do not appear elderly. However, often medical incidents arise during this time which substantially alters the clients’ life circumstances giving rise to needs such as long term assisted living, home health care or nursing home care.

Suffice to say that any revocable trust planning should include some elder law planning and Medicaid related provisions in the trust to allow the Trustee to take measures to allow an ill spouse to get qualified for Medicaid while taking all legal measures to preserve the estate. Such measures are varied and based on the individual circumstances of each case. Medicaid planning tools include “income only trust” or “supplemental “special” needs trusts”.

Other options may include an “elective share trust” or a “personal services” contract with the family members to limit the “spend down” of the estate. Medicaid wills can also be an important tool that is rarely utilized by the masses.

So the “take away” here is to make sure that your estate-planning attorney understands all aspects of planning which range from business succession planning, to wealth and estate tax planning, to probate avoidance and disability planning, to elder law and Medicaid planning. These essential components will offer you a complete estate plan which maximizes the available legal protections for you and those you love the most.

As always, I hope this was helpful. Until next time friends…

Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.
Steve as he would rather be called, is not your typical attorney.  If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client.  Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law.  It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.

Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was recently admitted to the California bar. Keeping abreast of law changes in these three States, as well as the United States, assists him in all aspects of the types of law the firm practices.

Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues.  Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills.  He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children.  The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.

Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path.  To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”


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