Never Have I Ever: Elder Law Attorney Edition

Elder Law Attorneys have seen some things. Ask a seasoned attorney who specializes in estate planning documents, probate, and other elder law matters about some of their craziest cases. Most likely, you’ll just get a look of annoyance. These specialists spend their days advocating for seniors and advising plans to protect their assets. The craziest cases involve those times when a senior failed to protect themselves – and lost big time.

Don’t call them jaded. Even though they have seen some of the worst in humanity, they still believe in the need for seniors to have their families rally around them at the end of life. Every case is different – and they’ve seen some amazingly loving families! - but they still advise caution. When asked for five things they would not do for their senior clients, this law firm came up with this list without hesitation.

family and elder law

5 Things an Elder Law Attorney Advises Against

1. Adding a child to a bank account as an owner

2. Designating an irresponsible power of attorney

3. Adding a kid’s name to a deed

4. Gifting or giving away money

5. No plan

1. It’s not a good idea to add an adult child’s name to a parent’s bank account.

The Florida Durable Power of Attorney is a much better document for estate planning that accomplishes the same goal. If you want someone to access money or sign a check for you, a Durable Power of Attorney is the preferable way to go. Adding an adult child’s name as an owner to your bank account can create problems down the road.

The addition of a child’s name to a bank account is considered “gifting” for the purposes of Medicaid eligibility in the state of Florida. This can be problematic during the application process and makes the process unnecessarily difficult. Any experienced Elder Law Attorney will advise you to keep it simple – draft a Durable Power of Attorney and don’t muddy the waters of your financial future.

2. If you know they are irresponsible, don’t make them your power of attorney.

Any Florida Estate Planning Attorney will tell you it doesn’t matter if they are your child, your friend, or your pastor, if you know them to be untrustworthy, do not make them your Durable Power of Attorney agent! It is in your long-term best interest to choose someone who is responsible, able to be trusted, and has your best interests at heart. Your power of attorney agent has the authority to make financial and legal decisions for you in your incapacity, so consider that responsibility thoroughly.

Your Elder Law Attorney understands that having to choose between your adult children may be difficult. In some cases, people have to choose between multiple siblings. Consider the strengths of your children and ask your attorney if you should divide responsibilities between them. For example, if you have one child that is strong in finances and one who lives closer to you, perhaps make the financially strong child the power of attorney agent and the local child a healthcare surrogate.

This is not the time to worry about hurting someone’s feelings or making them mad. A power of attorney agent is the person making legal and financial decisions for you and should be whomever you trust the most, no matter where they fall in the sibling order.

3. Do not add a kid’s name to the deed to your house.

Read that again. Do not add an adult child’s name to the deed to your home for any reason. This is a one-way street and can be next to impossible to un-do. Life circumstances change – do not tie your financial future to your relationship with any of your adult children. Your home is your biggest asset. Therefore, adding someone to the deed can result in negative consequences from losing homestead and tax advantages to disqualifying yourself from public benefits due to gifting.

A common scenario is one child being added to the deed with words of promise that, upon the death of the parent, the house will be sold and proceeds split between siblings. Only that doesn’t happen because a deed doesn’t dictate how the house is handled when you pass away. Rather, estate planning documents do this by outlining who is to get the house or the disbursement of proceeds from the sale of the house.

And while the parent is alive, everyone on the deed must be in agreement for a home equity loan, to sell the house, to refinance, etc. before anything can be done. If the adult child on the deed doesn’t agree with the parent’s wishes, they can refuse consent. This can  block the parent from making a decision regarding the home that was originally theirs.

4. Gift or give away money prior to death.

Don’t give away your money. Senior care is crushingly expensive, and you may need all that you have to maintain your home and health. If you still have money left over when you die, it can be gifted and given away at that time. Such distributions can be outlined in your documents for estate planning.

Giving money to adult children to help buy a house or buy a car for a grandchild can be considered gifting, creating headaches in the Medicaid process. You never know how your life is going to go. Therefore, you should keep your money for yourself.

5. An Elder Law Attorney would never tell you not to plan.

These legal specialists are all about a plan for aging. The first four things on this list can be avoided with a good aging plan. Estate planning involves specific documents that will prepare you for end-of-life and provide a plan for your person, finances, and property.

Estate Planning Documents

Revocable living trust

Last will and testament

Living will and designation of healthcare surrogate

Declaration naming preneed guardian

Durable power of attorney

Estate planning documents give you control over who gets what after your death, but also outline your wishes in the event of incapacity. Your family can avoid uncomfortable conversations and receive guidance directly from your documents. Furthermore, your documents help guide them after you are gone. You may be worried about upsetting one of your children, but there is empowerment in making choices and documenting a plan.

Having honesty and integrity in handling complicated family dynamics are two of the reasons Elder Law Attorneys is one of the Resources We Love. Learn more about how these legal gladiators help families and advocate for seniors in the Legal and Financial Section of our Blog.

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