Your Estate … with James Ward: COVID-19 restrictions can prevent legal documents from getting signed; are yours in proper order?

Not having the right documents in place leaves you vulnerable

James Ward

Someone in the United States has a stroke every 40 seconds. Every four minutes, someone dies of stroke. Strokes kill about 140,000 Americans each year — that’s one out of every 20 deaths. (Source CDC website.)

Nearly three-quarters of all strokes occur in people older than 65. The risk of having a stroke more than doubles each decade after the age of 55. (Source www.strokecenter.org)

Will you suffer a stroke? Will you lose mobility and speech? Will you die from a stroke?

That’s one set of questions. The other set is this: Do you have the right legal documents in place so that others can make the right decisions for you? Have you had your Living Trust, Power of Attorney, and Advance Healthcare documents reviewed by a qualified Elder Law Attorney?

A local gentleman recently had a severe stroke that left him paralyzed. He had been in the hospital and nursing home for nearly three months, and then his wife and kids contacted me for help. It was unlikely the man would leave the nursing home, and he was now close to the end of the term that would be covered by Medicare, so the family would have to start paying $15,000 a month to keep him at his current nursing home.

No, Medicare will not keep paying. Medicare does not cover long term care. Only Medi-Cal covers that, but you have to qualify.

What do his legal documents allow? Nothing. Absolutely nothing. Why? He never established any estate planning documents prior to his massive stroke. No Advance Healthcare. No Power of Attorney. No Living Trust. He was 83 years old, healthy, still working full-time as a medical professional running his own practice — and he should have known better.

Although he can’t walk or move half of his body, he’s still capable of understanding and signing documents, but with our current COVID-19 conditions, nobody can visit him in the nursing home. Not his family, and not the attorney. So, unless the situation changes, his wife will have to start paying $15,000 a month for his stay at the nursing home. That depletes the money she could use to support herself. We could have arranged for Medi-Cal to cover his stay if he would have had the right legal documents in place before he suffered his stroke.

What about having Medi-Cal pay for his stay? It would have been easy if he had put the right documents in place prior to his stroke. We could also get him qualified now if he could leave the nursing home or if I were allowed inside, but that can’t happen right now. Although the gentleman is severely impaired, he’s also extremely fortunate he can still communicate and sign documents — but the COVID-19 situation blocks this for now.

Do you have the right legal documents in place now to protect yourself and your family? Not having the right documents in place leaves you vulnerable.

Do you have an estate plan? Have you had it reviewed by a qualified Elder Law Attorney? Do you know what your documents say? Will they work when you and your family need them to work for you and them?

Make sure you have the right legal documents in place now, and make sure you know what they say. Not having the right legal documents in place now is a huge mistake. Having a set of estate planning documents that won’t work is like having a spare tire in the trunk that won’t fit on your car — but it’s much more serious than that.

James Ward lives in Morgan Hill. He went to law school in New England and earned a post-graduate law degree in Estate Planning at the University of Miami. Jim worked as an Estate Planning and Elder Law attorney in Florida, and then returned to open his law firm focusing on Estate Planning and Elder Law. He has offices in South Valley and Willow Glen.