What Were They Thinking? Again!?

May 16, 2017 by Whittley Pike

Traditional "elder law planning" is neither centered on the Elder nor a proactive approach to planning. What are the problems with the current system and what can we as professionals do about it?

Years ago, our founding partner, Rick Randall, wrote an article titled What Were They Thinking? focusing on the broken system of estate “planning” in America.  The traditional estate planning and probate system is reactive, focuses on documents rather than people, does not prepare families well, and rarely achieves client goals or even meets client expectations. 

Today, I’m writing to discuss a similarly broken system: “elder law” planning.  This typically amounts to crisis Medicaid spend down strategy.  It doesn't meet the goals of the Elder, because his or her voice is often never considered.  It isn’t true planning because there is little time left to react and families have few options.  

True Elder Law should be a holistic look at the needs of an aging person to address concerns about living situation, long term care, physical ability, social support, family dynamic, financial management, personal instructions, and legal rights. Unfortunately, attorneys are not trained to address these issues and we have not done a great job of educating our clients on how to recognize potential problems or start working toward proactive planning.

In a typical “elder law” practice, we never get to work with the Elder.  We do things like petition a court for guardianship over a person who has dementia and cannot manage his or her own finances or health care decisions. This is the epitome of reactive.  It is also very preventable in virtually all cases.  Rather than working with the Elder to create his or her own instructions in the case of disability, we wait until after crisis has hit and rely on a frantic family to reach out to us.

If the family has waited until there is a long term care need, we usually meet them after a health care provider explains that insurance coverage has run out and the patient will soon need Medicaid.  We meet with adult children of an Elder who has recently experienced (or is still going through) a major health crisis.  We get a couple of hours to meet the family, learn about the health situation, summarize the entire financial picture, destroy any previous relationships with financial advisors by liquidating everything, and map out a plan for spending what might be left of an inheritance all for the pursuit of payment for long term care costs that the Elder never fathomed he or she could protect against in the first place.  This Spend Down Strategy and Medicaid Application happens when the family is grieving the loss of health of their loved one.

We have positioned ourselves as emergency response workers rather than trusted family care providers.  In each of these cases, we rely on adult children of the Elder. We wait until after mom's or dad’s voice is gone and try to do the best we can with second hand accounts of what he or she would have wanted.  The “best we can” in that situation is not good enough for families.  Most importantly, it is not good enough for the Elder.

It’s time we start including clients in the conversation about their own health outcomes.  If they want to live at home for as long as possible and Age in Place, that is a great goal, but they cannot get there by ignoring the fact that dementia or a catastrophic illness might happen some day.  It is our job as professional planners to address the “what ifs” with clients while they are still alive and well so that when one of those ifs happen, the family isn’t left wondering “what now?”  Only by asking the questions, documenting the choices, and involving the next generation in the conversation can we create a proactive plan that centers on the Elder.