Estate and Advance Care Planning for Elderly Parents

Updated

As you enter your later years, estate planning and advance care planning becomes more pressing and real. Whether your goals include passing wealth to your children, supporting late-in-life dependent children, or even ensuring your children don’t benefit from your estate, estate planning helps you fulfill your final wishes.

While we often think of making wills and provisions for our assets, advance care planning holds a less prominent place in our cultural consciousness. This is surprising because it impacts you while you’re still alive. 

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Neither of these topics is as fun as planning your next vacation or other family activity. But, just as you’ve planned those other activities with and for your children, one of the kindest things you can do for your family is making plans for your serious health emergency and death.

Why Is Estate Planning and Advance Care Planning for Elderly Parents Important?

Life changes forever when you become a parent, and your relationship with your child changes as you both age and grow. You might even find yourself being cared for rather than the caretaker at some point. 

Estate and advance care planning allow you to make the instruction guide you dreamed of having during those sleepless newborn nights, unpredictable toddler tantrums, and patience-trying teenage times. You can create a blueprint for your children (or other loved ones) regarding the type of care and interventions you want and how to distribute your assets upon your death.

Besides ensuring that your final wishes are followed, both for your care and regarding the distribution of your estate, a clear estate plan and advance care plan is truly one of the last gifts you can give your children or family and is a final way to demonstrate your love and care for them. Thoughtful planning will reduce their stress during the challenging process of losing a parent, help reduce family conflict, and give them peace of mind. 

Estate Planning Considerations for Elderly Parents

Estate planning allows you to customize how your assets and property get passed on to the new owners of your choosing. For those who don’t engage in estate planning, your property passes according to your state’s probate and intestacy laws.

Considerations for everyone

Estate planning takes many forms. It can be as simple as designating a payable-on-death beneficiary through your online account platforms for your bank, retirement, and investment counts. These designations override wills and remove those assets from your probate estate and are broadly referred to as non-probate transfers.

Most people know of wills as an instruction document for your estate. What may surprise you is that a will only directs your probate estate. In addition to the non-probate transfers mentioned above, the other most common way to dispose of assets that also takes them out of your probate estate is by placing them in a trust.

You can set up a trust and move your assets into it while you’re still alive. Then, a successor trustee takes over after your death and continues the trust’s rules to distribute or otherwise manage the property. Alternatively, some people use their wills to establish a trust upon their death and then place some or all of their probate assets into the trust.

Most people who have children leave at least some portion of their wealth to them. The amount and terms vary widely from family to family. You might consider a trust if you want to make distributions over a longer period of time instead of all at once. Many parents also choose trusts as a way to prevent their children from recklessly spending their inheritance all at once. 

Without estate planning, state-specific laws evenly distribute a parent’s estate among their adopted and biological children. A surviving spouse also inherits, if there is one. You can use your will and other estate planning to alter the formula to reflect your children’s needs and previous gifts you’ve given them. 

Considerations for elderly parents who are surviving spouses

If your spouse died before you and left everything to you, your estate plan has the added importance of creating the legacy both of you leave behind. The same options remain available for estate planning, but you might choose to encompass some of your deceased spouse’s goals or wishes in your own plan.

For example, if your spouse had children from another marriage but overlooked them to support you, you might include them in your estate plan. Similarly, you might leave bequests to your spouse’s favorite charity or cause in their memory.

Considerations for elderly parents with blended families

Combining families with a spouse can bring both joy and challenges. Those characteristics continue through to your estate plans.

Individuals with blended families might want to make more detailed estate plans beyond simply leaving everything to their surviving spouse. Making your spouse your sole beneficiary will accomplish your goals of ensuring they have adequate financial support for their remaining years. Still, it doesn’t guarantee that your children from a previous relationship end up with anything.

When you bequeath property to someone through your will or non-probate transfers, it becomes theirs to do with as they please. One of the most common scenarios is that one spouse leaves their entire estate to the other, assuming that the surviving spouse will do right by their stepchildren. Instead, the surviving spouse might use the entirety of the estate for their own benefit or leave it to their own children or other heirs at their death. 

To prevent this from happening, some spouses enter will contracts. Doing so prevents either of them from altering their will after one spouse dies. Instead, they each write their will as agreed upon, which usually includes provisions for each other’s children or other important family members.

Alternatively, parents can also make trusts with specific distribution terms for their children, leave their spouse only life-estates instead of outright ownership of property, or directly leave money or property to their children through non-probate transfers.

Considerations for elderly parents who remarried

Parents who remarry after their spouse dies typically want to structure their estate to ensure their deceased spouse’s assets and wealth pass along to their children rather than to a new spouse or stepchildren. Doing so lets your children receive any of their parent’s property with sentimental value that might be left and provides them the financial support that your spouse would have wanted.

In addition to a will contract with your current spouse, you could also consider a trust, non-probate transfers, or specific bequests in your will to transfer your deceased spouse’s legacy to your children. If you want to rely on your will to transfer property to your children, be aware of your state’s spousal share requirements. 

All separate property states (those that don’t fall into the community property system) allow a surviving spouse to opt in to choosing a set amount to inherit in situations where they’re written out of their spouse’s will or only inherit a small portion. This default amount is called the spousal or elective share, and couples can choose to forgo it by signing pre-or-post-marital agreements.

Considerations for elderly parents with minor children

Late-in-life remarriages, adoption, and advanced reproductive technology make it possible for both men and women to find themselves in their golden years with minor children at home. These parents should take a few extra steps in their estate plans to address the care and support of those minor children.

First, parents of minor children typically use their wills to nominate a guardian for the kids or other dependents. A guardian steps into the parent's shoes to make decisions for the child and take care of them. While the guardianship nominates the other parent’s rights if they survive you, it’s a crucial nomination if both parents die at the same time or you’re the remaining parent.

When a parent nominates a guardian for the child in a will or other writing, that nominee gets the highest level of preference in the court proceeding. This can prevent or settle conflicts among competing family members who want to take the children.  In many states, it also qualifies your nominee for a fast-tracked process that makes the guardianship appointment easier.

In addition to planning for your minor children’s care, you’ll also need to consider their financial support. Again, many options exist, and you can use some combination of several.

At the most basic, you can simply bequeath all or some of your estate to your minor children via your will. However, minor children can’t independently hold large amounts of money or assets on their own (many states set the limit at $10,000) but it remains theirs. In that situation, the court appoints a conservator to oversee the child’s property and money until they reach 18 or 21, depending on the state. In that scenario, you’ll want to nominate someone you trust to act as conservator.

Alternatively, you might establish a trust for your child. The trustee would provide an allowance for the day-to-day support of your kids and their needs throughout their childhood and then distribute any remainder according to the terms you establish to the trust. People with more wealth often prefer this route because it gives them more opportunities to set rules or benchmarks for using the funds.

Considerations for elderly parents with special needs or disabled children

Parents with special needs or disabled children can use their estate plans to establish a chain of care and financial support for their children after they are gone. 

Like with minor children, parents of special needs children typically nominate a successor guardian for their child in their will. Many parents serve as guardians for their adult children, and by nominating a successor, they can make it easier for someone else to take up the responsibility. Guardianships for adults allow another person to make important medical and care decisions for someone who can’t do it for themselves. 

Many states allow the current guardian to petition for the appointment of a successor guardian that takes effect automatically at the death or incapacity of the current guardian. In addition to nominating someone in your will, you might also check whether this is available in your state to allow for the seamless transition when you lose the ability to take care of your child. 

Arranging care for your child is just one duty you’ll need to take care of. The other primary one is structuring your estate so that your child can most benefit from your wealth without losing any health benefits they qualify for. 

Adults with special needs often rely on Medicaid and other government programs for their medical care, host family programs, and day programs. Unfortunately, these programs all set low limits for the amount of money or property that the recipient can own before they have to pay for these programs themselves. So, by leaving your estate to your child with special needs, you can limit their care options

To prevent this, parents often rely on special needs trusts. A special needs trust lets your child use the funds in the trust to supplement their care without disqualifying them from government assistance. These trusts must be set up according to state and federal laws that govern Medicaid benefits and other requirements, so it’s important to work with an experienced attorney to set up the trust correctly.

Estate Planning Checklist for Elderly Parents

As you create your estate plan, you can choose from several options for disposing of your assets.

  • Will: Wills form the bread and butter of estate planning. These written documents detail your instructions for distributing your probate estate and for the appointment of a personal representative to administer your estate.
  • Trust: Trusts allow you to distribute assets outside of probate, which gives you the benefit of added privacy. You place your assets in a trust before or after your death, and then a trustee runs the trust according to the terms you set. Trusts can hold assets over the long-term, which makes them good options to slowly distribute assets over time.
  • Non-probate transfers: Transfer your assets outside of trusts or the probate process through non-probate transfers. Non-probate transfers include payable-on-death beneficiaries designated on bank accounts, retirement plans and accounts, life insurance policies, and investment accounts. Beneficiaries of these transfers can initiate the transfer with proof of your death and their own identity without going through the court or other administrator.

Advance Care Planning Considerations for Elderly Parents

Unlike estate planning, advance care directly impacts your quality of life and your care while you’re alive. Beyond ensuring you receive the care you want, advance care planning dramatically reduces the burden of decision-making that your loved ones would otherwise be faced with in your last days. 

When you create an advanced care plan, you put your wishes in writing regarding the type of life-sustaining measures, treatment for any severe illnesses, and organ donation that you want. You can also designate a decision-maker for medical and financial matters to handle any other concerns not expressly addressed in your documents. 

An advance care plan usually includes several documents to tackle the many needs that arise when you lose capacity through illness or injury. It’s a good idea to keep these documents in one place where your loved ones or nominated decision-makers know how to access them. 

The types of decisions you make in your advance care plan can trigger closely held beliefs that many people have about whether it’s right to end a life. As a result, they can generate conflict in even normally harmonious families. It can also leave the person making that decision feeling guilt or trauma about making a choice to end care and, consequently, the life of someone they love. By setting your decisions out in your advance care plan documents, you can eliminate much of the grief and struggle with these choices.

Considerations for everyone

Advance care plans typically tackle a few standard issues.

  • Type of care: First, consider what type of care you want to receive at the end of your life. You’ll address life-sustaining measures like intubation, food feeding, and palliative care. These treatments closely relate to your individual perception of the quality of life as related to the length of your life. These types of decisions comprise your living will or advance directives.
  • Decision maker: Iif a situation arises not addressed in your care plan, who do you want to make decisions for you, both financial and medical? This person can serve as your power of attorney. You’ll want to choose someone you trust to follow your wishes, but also consider whether that person can handle the job. 
  • Final wishes: Finally, plan for how you want your body handled at death. For example, do you want to donate your tissues and organs? Or your entire body for science? You can add this information to your living will and fill out separate forms in your state’s donation registry. Remember, you can make a will online in just a few minutes. 

Considerations for elderly parents who are surviving spouses

Married people frequently default to appointing their spouse as their power of attorney and decision-maker. After all, who knows you better than someone that you have lived with for decades? However, you’ll have to revisit that appointment if they died before you, and it might feel challenging to choose an alternate. 

While other close family members, like adult children, can be natural choices, they’re not your only option. Some people prefer to nominate professionals, whether because their other family members are absent, unreliable, or unable to make sound decisions. There’s no rule that you have to appoint a biological family member. 

You can choose a close friend or trusted colleague. Most importantly, choose someone that you know can make steady decisions in your best interests and can follow your instructions that you set out in your planning documents.

Considerations for elderly parents who remarried

Advance care planning can fulfill a particularly important role for those who remarried late in life. These marriages often provide companionship that helps seniors thrive and supports a higher quality of life. However, many see these relationships as serving that limited role and don’t intend to relinquish decision-making or financial control to that spouse. 

When patients lack advance care documents, hospitals often turn to the spouse as a proxy decision-maker. Advance care planning allows you to reallocate responsibilities and privileges that typically fall to a spouse to your children or other loved ones.

If your spouse and children don’t see eye-to-eye, you can prevent some conflict through highly detailed advance directives regarding your care and finances. For example, the family home often becomes a source of conflict as a spouse might need to remain there to avoid homelessness, but your children might need to sell it or mortgage it to pay for your extended medical or residential care. 

In addition to the standard advance care documents, many who remarry late in life also tackle these issues in premarital agreements. By doing so, both spouses and their families know what to expect when one or both experience a serious and ongoing change in health. 

Considerations for elderly parents with blended families

Much as someone who remarried might use their advance care plans to shift authority from their spouse to their child, you can also use it to give powers to your stepchildren. Typically, stepchildren would have no priority for appointment or powers over your biological or adopted children regarding choices about your care. 

We often emphasize the challenges of blended families, but in reality, many beautiful relationships come from the melding of families. Advance care documents that designate stepchildren as medical decision-makers, give them financial authority, or even just express your wishes to having them admitted to your hospital bedside can honor those relationships and ensure that you receive the type of care you prefer. 

Considerations for elderly parents with a serious illness

If you have a serious illness, check whether your state allows for physician orders for life-sustaining treatment (“POLSTs”) or medical orders for life-sustaining treatment (“MOLSTs”). Unfortunately, not all states have created laws recognizing these documents. 

A POLST or MOLST lets you work with your doctor to create written instructions for your care in various scenarios, but they’re only available to people with severe or terminal illnesses. Your physician fills out the orders to cover a variety of likely scenarios specific to your illness.

For example, your POLST might address whether or not you want antibiotics administered if you develop an infection from your feeding tube or central line. It can also address more basic issues like whether you want CPR or other forms of resuscitation.

Your physician or hospital keeps a copy of the POLST on file, and it’s also a good idea to keep one with you. 

Advance Care Planning Checklist for Elderly Parents

Some advance care planning documents pull double duty by addressing multiple issues. Others are more specific. You might find that having both can be helpful depending on the situation, and of course, check your state’s laws because some states establish specific requirements or restrictions for advance care documents. 

  • Advance care directive: Also called a living will, your advance care directive is typically the most comprehensive and detailed document. You can specifically identify the life-sustaining measures you want, like intubation, ventilation, tube feeding, and more.
  • Power of attorney: Powers of attorney allow you to delegate decision-making power to another person. You can choose to give them financial or medical powers – or both! You can also make a power of attorney that only takes effect when you lose capacity by terming it a “springing” power of attorney. Additionally, powers of attorney usually lose effectiveness upon the loss of your capacity, but you can avoid this by designating them as “durable.” By doing so, it retains authority until you die. 
  • DNR: While your living will addresses your thoughts on being resuscitated, many people make a separate do not resuscitate order. Several states also provide a standard form that can easily post at your bedside to inform care staff. In your DNR, you can indicate whether you consent to CPR, cardio electronic stimulation, or other forms of resuscitation.
  • Organ and tissue donation consent: As with the DNR, your preferences about organ and tissue donation and donating your body to science might also be addressed in your living will. However, a separate form can make it simpler for care providers to access that information easily. Additionally, consider registering your consent with your state's donation database so that hospitals can find your status even if you come in an emergency without your advance care documents. 
  • POLSTs and MOLSTs: Some states authorize physician orders for life sustaining treatment or medical orders for life-sustaining treatment. These documents are only for people with terminal or severe medical conditions, and your doctor fills out detailed orders regarding the type of care you should receive in certain situations. Hospitals and care facilities often post these at the patient’s bedside for easy reference in time-sensitive situations. 

Frequently Asked Questions: Estate and Advance Care Planning for Elderly Parents

End-of-life planning is one of the most uncomfortable and sensitive topics you’ll address. If the process feels overwhelming or confusing, an attorney can also help you with overall plan and individual documents.

How can you talk to your elderly parents about estate or advance care planning?

Starting a conversation about estate and advance care planning is, at best, uncomfortable as you contemplate your parents’ death. At worst, it can come across as a greedy grab for their money. Your approach needs to consider your relationship with your parents and how comfortable they feel with direct communication. 

Advance care planning can be a more manageable topic because it addresses their care and well-being. You can start the conversation by bringing up other people dealing with end-of-life decisions, the loss of a pet, or something you saw on TV as events that triggered the concern. Hopefully, your parents find it compelling that you are concerned about needing to make important decisions for them in a way that helps them feel respected and dignified in their final days. 

Many parents will try to brush off the conversation by saying they trust you to make the right decisions for them. You can use that as an opportunity to tell them how much you love them, and making the decisions without their input will leave you feeling guilty or even traumatized. Appealing to their love for you can be your most persuasive tool.

Many Baby Boomers consider finances to be a private topic, so the same tactics might not work for estate planning. However, it’s reasonable to ask where you find and how to access your parents’ documents at their death, even if they don’t want to discuss the contents.

If you feel the need to probe them for the details regarding the details of their wills, remember that they keep the right to change them. So, even if you know the terms today, they can redo them anytime. Most importantly, know that your inheritance isn’t set until they die. Between now and then, they can spend their money as they want, whether it’s on vacations, giving it as gifts, or using it for their medical care. Try to view it as an unexpected gift. Relying on it in advance can cause a lot of heartache.

How do you find an attorney that specializes in estate planning for the elderly?

Attorneys specializing in estate planning should be very familiar with working with seniors. Look for attorneys who say they focus on estate planning or probate law. Attorneys who work in estate planning are typically adept at advance care planning as well, and might even offer a package of documents.

Many state bar associations offer an attorney search tool to help you find attorneys who practice in your geographic location and work in specific types of law. Otherwise, reach out to coworkers, friends, and family for references. If you’re on a social network like NextDoor, you can also ask for word-of-mouth recommendations from neighbors.

As you vet possible attorneys, ask about their turnaround time and what to expect from their process. Then, make sure you find an attorney with whom you feel comfortable working with and feel safe being open and honest about your family.

Research and Customize Your Advance Care and Estate Plans

Hospitals and doctors’ offices often make basic advance care plan documents available, especially before going in for a surgery or other medical procedure. While these will undoubtedly be better than nothing if something goes wrong, these decisions are worth the time and effort it takes to create a customized set of documents.

It might feel excessive to contemplate a variety of disasters that can befall you, but the adage that a pound of prevention is worth a pound of cure is especially apt in these situations. Families can be torn apart by differences in opinion regarding life-sustaining care, risky medical treatments, and the distribution of estates. 

Once you set your decisions in writing, revisit them on occasion as your family, finances, and health change. Then, keep all of these documents up to date to reflect your most current desires. 

By doing these things, even if your loved ones disagree with your choices, you can rest easy knowing that your needs will be met and that you gave them the final gift of clear instructions.

 

 

 

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