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Confronting the Realities of Planning for Later LifeConfronting the Realities of Planning for Later Life

Helping clients face the facts of growing older.

4 Min Read
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Many clients create or revisit their estate plans when they’re in their mid-60s. Events in those years can prompt the desire to arrange one’s affairs. Retirement, enrolling in Medicare and qualifying for Social Security all remind our clients that they’re growing older and that they won’t be middle-aged forever. Attorneys and other advisors also need to consider whether their clients are “ready” to enter old age.   

Physical Decline

Your client can’t avoid physical decline, but he can plan for it. First, your client should think seriously about where he lives—both what kind of house or dwelling he lives in and where it’s located. Your client needs to evaluate whether where he lives now will be a good place to live at age 75, 85 or even 95. Riding his John Deere mower around, lugging fertilizer bags and raking leaves may be fine at 65, but will he still want to be doing that at 80? Sure, he can carry that laundry basket down the basement steps today, but will that be a safe thing to do when he’s 85? Our clients need an exit plan for the house that they bought back in the day. They need to start thinking about how to avoid steps, stop shoveling snow, cease maintaining a yard and not be stressed finding repairmen to handle an aging house owned by an aging owner. 

Social Security Benefits

At 62, your client can claim his Social Security retirement benefits. Of course, if he does, he permanently reduces them by 25 percent compared to the amount he would have received at his full retirement age, currently 66. If your client waits until he’s 70 to claim the benefits, the amount rises by 32 percent, at 8 percent for each year he defers. At 70, there’s no reason to delay further because the amount is set for life—except for possible annual cost-of-living increases. For many, deferring claiming Social Security past 66 makes sense.

Medicare

At 65, your client is eligible for Medicare, but Medicare is a secondary payer for most who are still employed and covered by health insurance. The employer insurance is the primary payer, meaning that it pays first, up to the limits of its coverage; only then does Medicare pay for costs not covered by the primary insurer, if Medicare covers those costs. 

Still, your client should apply for Medicare in the months before he turns 65. It costs nothing to be enrolled in Part A, which pays for hospitalization.

If your client has reached 65 and has retired, it’s time to fully enroll in Medicare. Even if your client’s employer provides a health care plan for retirees, Medicare is the primary payer. The big choice your client faces is whether to stay with original Medicare, Parts A, B and D, or enroll in Medicare Advantage, which supplants Parts A, B and D.

Medigap Policy

In addition to Medicare, your client will need a Medigap policy. Medigap policies—Medicare Supplement Insurance—are sold by private companies but are heavily regulated by federal law. The policies pay some or all of the health care costs that Medicare Parts A and B don’t cover, such as copayments, coinsurance and deductibles. Some Medigap policies also offer coverage for services that original Medicare doesn’t cover, like medical care when your client is traveling outside the United States. Medigap policies don’t cover the cost of long-term care (LTC), dental care, hearing aids, eyeglasses or private duty nursing.

Long Term Care

Medicare pays for acute care, not LTC. Medicare may pay for up to 100 days in a nursing home (with significant copays for days 21 to 100), but that’s it. After that, your client is on his own.

There are generally three ways to pay: (1) LTC insurance; (2) out of your client’s income and savings; and (3) Medicaid.

LTC insurance is expensive and not for everyone.

Paying for LTC out of income and savings is possible, but if your client plans on doing that, he must recognize that the size of his estate when he passes away may become significantly smaller. So, your client needs to create an estate plan that still makes sense, even if his estate diminishes in value. And, while your client may be able to afford paying for himself, that outflow of funds can greatly reduce the income of his spouse. It’s not enough just to have sufficient funds to pay for LTC; your client needs a plan to protect the financial well-being of his healthy spouse. 

Medicaid is a means-tested program; its rules require a recipient to become impoverished to gain benefits. To be eligible, your client must essentially exhaust his savings and devote all his income to the cost of his care before he qualifies. Couples have a little more leeway to retain income and assets to keep the healthy spouse from being destitute.     

 

This is an abbreviated version of the authors' article in the July issue of Trusts & Estates, "Planning For Later Life."

                 

About the Authors

Lawrence A. Frolik

Lawrence A. Frolik is a national expert on the legal issues facing older Americans. One of the founders of the field of Elder Law, he is the author, co-author and editor of over a dozen books, including the first casebook on the legal problems of the elderly, Elder Law: Cases and Materials (third ed. LexisNexis, 2011).

He’s served as chair of the Pennsylvania Bar Association Elder Law Section, chair of the American Association of Law Schools Section on Aging and the Law, served on the Executive Council of the Pennsylvania AARP and is an academic fellow of both ACTEC and the Special Needs Alliance. He serves as a visiting professor at the University of Miami Law School’s LL.M Program in Estate Planning. 

 

Bernard A. Krooks

Founding Partner, Littman Krooks LLP

Bernard A. Krooks is a founding partner of the law firm Littman Krooks LLP and Chair of its Elder Law and Special Needs Department. Mr. Krooks is a nationally-recognized expert in all aspectsof elder law and special needs planning. He is the President of the Board of Directors of the Arc of Westchester, the largest agency in Westchester County serving people with intellectual and developmental disabilities and their families.

 

Mr. Krooks is past President of the Special Needs Alliance, a national, invitation-only, not-forprofitorganization dedicated to assisting families with special needs planning. He is past President of the National Academy of Elder Law Attorneys (NAELA), a Fellow of NAELA, pastChair of the NAELA Tax Section and past Editor-in-Chief of the NAELA News . In addition, he is certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation and is an Accredited Estate Planner (AEP). He is a founding member and past President of the New York Chapter of NAELA. In 2008, he received the Chapter’s Outstanding Achievement Award for his lifelong work on behalf of seniors and those with disabilities. In 2007, his firm received the NYSARC employer of the year award for employing people with disabilities. In 2011, his firm received the Family Friendly Employment Policy Award from the Westchester Women’s Bar Association. 

 

Mr. Krooks is past Chair of the Elder Law Section of the New York State Bar Association (NYSBA) and past Editor-in-Chief of the Elder Law Attorney , the newsletter of the NYSBA Elder Law Section. He also is a member of the Trusts and Estates Law Section and Tax Section of the NYSBA . Mr. Krooks co-authors (1) a chapter in the NYSBA  publication Guardianship Practice in New York State  entitled “Creative Advocacy in Guardianship Settings: Medicaid and Estate Planning, Including Transfer of Assets, Supplemental Needs Trusts & Protection of Disabled Family Members.”; and (2) the NYSBA  publication Elder Law, Special Needs Planning and Will Drafting . He is chair of the elder law committee of the editorial advisory board of Trusts & Estates Magazine, and serves on the editorial boards of Exceptional Parent Magazine, and Leimberg Information Services. 

 

Mr. Krooks, a sought-after expert on elder law, special needs planning and estate planning matters, has been quoted in The Wall Street Journal, The New York Times, Newsweek, Forbes, Investment News, Financial Times, Money Magazine, Smart Money, Worth Magazine, Kiplinger’s, Bloomberg, Consumer Reports, Wealth Manager, CBS Marketwatch.com, Lawyer’s Weekly USA, Reader’s Digest, Bottom Line, The Journal of Financial Planning, The New York Law Journal, The Daily News, New York Post and Newsday , among others. He has testified before the United States House of Representatives and the New York City Council on long-term care issues. He also has appeared on Good Morning America Now, National Public Radio, Sirius XM Radio, CNN, PBS, NBC, and CBS evening news, as well as numerous other cable television and radio shows.

 

Mr. Krooks is past President of the Estate Planning Council of Westchester, a member or the Advisory Board of the National Association of Estate Planning Councils Foundation, and the Hudson Valley Estate Planning Council. He also is Co-Chair of the Long Term Care, Medicaid, and Special Needs Trusts Committee of the Real Property, Probate & Trust Law Section and a member of the Tax Section of the American Bar Association; a member of the Bar of the Supreme Court of the United States, and a member of the American Institute of CPAs. Mr. Krooks also is a Fellow of the American College of Trust and Estate Counsel (ACTEC) and serves on its Elder Law Committee. He is an Adjunct Professor at NYU Center for Finance, Law & Taxation and is a member of the NYU Institute on Federal Taxation Advisory Board. Mr. Krooks has presented on a variety of elder law and special needs topics at the Heckerling Institute on Estate Planning, the premier estate planning conference in the country.

 

Mr. Krooks has served on the Board of Directors of the Alzheimer’s Association Westchester/Putnam Chapter and the Bioethics Advisory Committee of New York Hospital. He is a member of the Blythedale Children’s Hospital Planned Giving Professional Advisory Board, a member of the legal advisory committee of the Evelyn Frank Legal Resources Program of Selfhelp Community Services, Inc., and a board member of the Caregiver’s Insights Foundation. He is listed in the Best Lawyers in America, New York Super Lawyers, Who’s Who  in America, the New York Area’s Best Lawyers, New York Magazine and The New York Times , and the Top 25 Westchester, New York Super Lawyers.