“While being proactive is commendable at any stage in life, embracing this approach in one’s retirement years is critical to ensuring financial security and peace of mind,” said Westchester County elder law attorney Anthony J. Enea, managing partner of Enea, Scanlan & Sirignano LLP in White Plains and Somers.
“While implementing an estate plan at any age is better than not doing so at all, the risks and adverse consequences of waiting are significant,” added Enea, who has spent nearly 40 years protecting the rights of seniors, the disabled and their families. “Delaying the execution of a durable power of attorney with broad gifting provisions and a health-care proxy, for example, creates the possibility that if one is incapacitated – mentally and/or physically – and is unable to make financial and personal decisions, they will need to have a guardian appointed for them.”
In New York, a guardianship proceeding must be commenced in the Supreme Court of the county where one resides. It is expensive, time-consuming, and often emotionally taxing on all parties involved, particularly if it ends up being contested. Ultimately, the person appointed as guardian may also still be unable to make the financial transactions necessary to protect the incapacitated person’s assets from the cost of long-term care. This outcome can be easily avoided by executing a broadly drafted durable power of attorney and health care proxy well in advance.
“The failure to be proactive also rears its ugly head if one has not implemented an elder law plan at least five years before requiring nursing home Medicaid and, once the new law is implemented in 2025 or 2026, at least two-and-a-half years before requiring Medicaid home care,” noted Enea. “If one waits until their late 70s and/or 80s to execute and fund a Medicaid Asset Protection Trust, they are increasing the risk that they will need to privately pay for their care in a nursing home or at home, which would dissipate their life savings.”
Nursing home expenses in the New York metropolitan area often range from $175,000 to $220,000 per year, with home care costs averaging roughly $150,000 to $175,000 annually.
