Montclair, NJ Real Estate Law Blog

When a new client comes to see us, very often the focus of attention begins with the will and estate plan. "I want to make sure my assets pass to my heirs in the manner I desire and that it be done with a minimum of taxes and other expenses", our clients will frequently say.

When I meet someone and tell them that I am an elder law attorney, they invariably reply, "Oh, you do wills and trusts, right?" I then explain the difference between elder law and estate planning. Here's my answer. An estate plan covers the scenario of "what happens when I die". In the case of your assets, how will they be distributed and to whom. An additional emphasis is placed on minimizing estate and inheritance taxes through the use of wills and trusts.

But in today's world, increasingly, the bigger, more difficult question is "what happens if I live?" By that, we mean, what happens if I live but am not healthy and have increased health care costs and need to rely on others for assistance, either temporarily or on a permanent basis. The estate plan does not address this need. An estate plan can help you answer the first question, but a long-term care plan can help you answer the first and the second question.

Let's put it another way. An estate plan insures that if you have assets when you die they will be passed in the manner you wish. The key word is "if". The plan will not, however, guarantee that there will be anything left at that time to pass. Your assets could be mostly or entirely wiped out by a lengthy illness, hospital and/or nursing home stay, leaving your spouse and other heirs with nothing. That is the dilemma, in a nutshell.

So, when would you need an elder law attorney and when would you need an estate-planning attorney? If you have a level of assets sufficient to pay for long-term care under any scenario without running out of funds then an estate-planning attorney is most likely what you need. If, however, you cannot afford the $100,000 or more per year cost of nursing home care indefinitely, ($200,000 per year in the case of a married couple) then an elder law attorney should be consulted. In other words, can you pay that cost from your income, without dipping into your principal?

A real life example can illustrate the dilemma. Mary and Jim live in a home valued at $400,000 and have $350,000 in additional assets. Jim is wheelchair bound and needs assistance, which to this point Mary has been providing. However, in recent months, Mary has shown signs of confusion and forgetfulness. She went to her doctor who diagnosed her to be in the early stages of dementia.

An estate plan is important for Mary and Jim but it won't help them deal with the problems they are facing now. How will they afford the cost of nursing home care should either or both of them need it? Who will care for Jim - and Mary - when Mary's dementia reaches a more advanced stage? Can they remain in their own home with assistance or will they need to go to a nursing home?

Mary and Jim need a life plan to meet their needs going forward, one that is tailored to their particular situation. Mary and Jim need to consult with an elder law attorney.