Long Term Care

Due to the complexity of this area of the law, it is essential that the attorney have consistent procedures for his/her engagement and to obtain all relevant information necessary to the planning. The following is some basic information, which will address procedures in establishing long term care.
Some of the initial steps the lawyer should follow before giving any advice in the Elder Law and Long-Term Care Planning areas include:

Conflict of Interest: The attorney must determine who the client is and whether there is any potential conflicts-of-interest requiring separate representation for other family members (sometimes including the spouse).
Client Engagement: The client and the attorney should understand the nature of the engagement of the attorney and the fees to be charged to the client. While hourly fees are very common in the legal arena, in elder law and estate planning, attorneys sometimes quote “fixed” fees to clients. There should be separate engagement letters for each type of fee arrangement.
Client Objectives. It must be clear to both the attorney and the client the client’s objectives before an attorney can give advice and before designing plan or drafting legal documents.
Gathering and Analyzing the Facts. All the relevant facts must be determined before proceeding with long-term care and/or estate planning for the elderly. Copies of documents relevant to the client’s holdings, both personal and real need be to reviewed before an overall course of action can be determined. The attorney should have information gathering forms, which help to focus the client and the attorney on each of the various considerations. It is recommended that every attorney involved in estate and retirement planning for a client should have standardized information gathering forms and questionnaires to obtain essential client information for developing the appropriate plan. If the attorney misses a key point of information (i.e. the fact that the client’s spouse is not a U.S. Citizen) then his/her legal analysis and/or planning design may be fatally flawed.
Recommendations. Recommendations are then made to the client in language the client understands, as to an overall plan, which both informs the client and outlines all of the relevant issues.
Documents. Documents are then drafted in a cost-efficiently and timely manner to accomplish the goals of the client.
Periodic Review. While some planning decisions may be irrevocable, like transferring assets to accomplish Medicaid eligibility, nonetheless, the client and the attorney should periodically review the medical, long-term care, family, tax and retirement planning in light of any changes in the client’s wishes, health, assets, family situation, and changes in federal and state public benefits, tax or probate or other law consequences. If the plan is not periodically reviewed, it ultimately could harm, rather than help, the client in pursuing his/her objectives.

Client’s Health

Often in Elder Law and Long-Term Care Planning, the health of the client is very important consideration in planning. What is the state of the client’s health? Has the client appointed a medical agent? Does he/she have or want a living will? What kind of medical insurance does he/she have? Is Alzheimer, Parkinson’s or other diseases requiring long-term care a consideration? Does the client have or need to obtain long-term care insurance and/or to become eligible for Medicaid in order to cover the cost of such long-term care?
Planning for Medical Contingencies. Has consideration been made or determined on how and who should make medical decisions for the client if he/she is unable to do so? What does the client want to do if he/she is diagnosed with a terminal illness?
(1) Special (Medical) Power of Attorney;
(2) Living Will;
(3) EMT Living Will; and/or
(4) Anatomical Gifts.
An initial consultation with the attorney and client would address specific circumstances.