Guest: Dennis Christenson – Elder Law Attorney
Host: Sally Smith - Author/Resource
literature on age-related
disease and healthy aging
Sally Smith: Welcome to Age to Age. I’m Sally Smith. Let’s talk.
We’re talking, today, with Dennis Christenson, Elder Law Attorney, who
has talked with us about many fascinating issues related to elder care. But, also, one of our main topics is,
actually, caregiving. Caregiving can
encompass not only the elderly, but people with special needs. What are the legal considerations with any of
Dennis Christenson: One of
the biggest reasons that people come to see me, as an elder law attorney, is
that they have a loved one who has Alzheimer’s or has had a stroke, or some
type of physical or mental illness and is going to have ongoing care, and
they’re concerned about all of their assets being used for that care. And with nursing homes costing $50,000 a year
or more, most families will go through their savings very quickly trying to pay
for nursing home care. So, I help people
qualify for Medicaid so that their nursing home care can be paid for through
the Medicaid system.
In addition to that, there are a number of people who have
disabilities of one sort who need expensive ongoing medical care, a child with
Cerebral palsy, a child with autism, a child that’s a quadriplegic, or a young
adult that has any of these conditions, that requires ongoing medical
care. They need some way to provide for
that medical care, and public benefits is usually the way that their care is
Another thing that we do for anyone, whether they’re young or old,
if they are going to need publics benefits, or Medicare and Medicaid, to help
pay for their care, is assist them in qualifying for whatever public benefits
are needed. We make sure that they get
the appropriate medical benefits they’re entitled to, and then make sure that
they’re in a position to be eligible to receive that care. Now, that also means that some estate
planning needs to be done so that they continue to receive their benefits. For example, if someone receives a personal
injury settlement, this could be someone in a car wreck, and they’re a
quadriplegic with very expensive care, the receipt of that settlement can cause
them to lose those public benefits for medical care, which can be very
So, what we do is help people, who have received an inheritance,
or who have received money from a personal injury settlement, keep their money
in trust so they don’t lose their public benefits. These are what we call special needs trusts.
They’re very important because they allow someone, who receives some
money, to keep their public benefits, and to use that money to enhance the
quality of their life.
Now, there’s another situation that’s very important, and this
comes up with elderly clients. Let’s say
they have a child with a disability, or a grandchild with a disability, and
they want provide for that child. But if
they just name them in their will and say this money goes to Johnny Jones, when he gets that
inheritance, he’s going to lose his public benefits. Federal and state law provides that a person
who wants to take care of someone who is disabled can give money to that child,
or adult person, but keep it in trust.
These special needs trusts are a way that a person, who is receiving
public benefits, can continue receiving these benefits and not lose their
So, from a planning standpoint, it’s very important for anyone
that has a child with a disability to place money for their child in trust,
instead of giving the money outright. As
an older person with a grandchild that they want to give money to, it’s
important that they have a special needs trust.
These special needs trusts, again, allow someone to have the benefit of
the money they’re to receive without losing their public benefits, which are critical
for their ongoing care.
Sally Smith: That would be critical. And what about the angst of being an aging
parent, and maybe the sole caregiver, of a child who’s definitely going to
outlive you, to provide for them? That
must be a huge motivation.
Dennis Christenson: It’s
very important because some of these adults, young adults, who’s going to take
care of them after their parents die?
Maybe this is the only child. How
are you going to set something up to make sure that they are taken care
of? How are you going to make sure the medical
bills are paid if they have to live in an institution? How is that going to be set up? And so, this estate planning with special
needs trusts is a way to make sure that those things can be taken care of and
put in place so that they don’t lose those public benefits they’re entitled to
and end up, in effect, a ward of the state where there’s no plan in place.
So, we do a lot of planning for people who have children with
disabilities, or sometimes they’re taking care of a parent, or their
spouse. What happens when a 70-year-old
man has a 65-year-old wife who has Alzheimer’s?
Who’s going to take care of her?
So, these special needs trusts can be set up to take care of these
persons with disabilities so that there is a person to take care of them, and
there’s a way to do it financially so they don’t lose their public benefits.
Sally Smith: I mean, you
can only plan for so much. So, you’ve
got an older parent with a child like this, and they’re trying to take care,
really, of a child that may live twenty years after they’ve passed on, and
they’re trying to think ahead and deal with the finances, deal with who’s going
to be in charge, who’s going to make the decisions, who’s going to be the
caregiver, all that stuff. Say they ask
someone to oversee it, because they’re younger and will live way beyond
them. What happens when the designated
caregiver, or proxy, or whatever we’re going to call it, the agent, retires or
passes on? Is there a default list of
people who will step in to take care of this disabled child?
Dennis Christenson: Well,
it’s always very important when you name someone to be an agent, whether it’s a
personal representative, or power of attorney, that you consider back-ups,
successors, in case something happens to you.
Now, sometimes families can go through three or four names, sometimes
they only have two, so the documents you create kind of factor that in. If I’ve named you as a trustee of the trust
for my child, and I don’t know who else I’d want to have as a back-up, I could give
you the authority to choose the successor for yourself. Sometimes what we can do is name a group of
people to choose a successor; a committee can choose a successor.
Sally Smith: I see.
Dennis Christenson: So, you
try to build that in, depending on the circumstances, and that’s why you have
to take so much time with the family to figure out who’s the appropriate
person. Now, sometimes, despite your
best planning, you can’t. In that case,
a court would then have a hearing and decide who would be the appropriate
person. But we try to encourage people
to keep it out of the courts and let people who know that person the best make
those decisions as to who will take over.
Sally Smith: Wow. What a fascinating tool for planning and
trying to have people rest easy with important issues hanging out there that
are going to be hard to solve. Thank you
so much, Dennis, for sharing that with us.
And thanks to all our listeners for joining us. We’ve learned a lot from you today,
We welcome your suggestions and comments on our website. This is Sally Smith, Age to age, saying good-bye and wishing you courage and joy on your
journey. We are all connected.
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the Center on Aging. Thanks.