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Estate Planning, Elder Law and Medicaid Planning by Tom O’Connell

Planning for a disability and death is something that no one looks forward to but it also is something that everyone agrees results in feelings of accomplishment and satisfaction because you know that you have delivered a lasting expression of love to those you have provided for and leave behind.

In the past, a simple will would have sufficed, but now with the longevity provided by medical advances, the power of attorney, healthcare proxy and healthcare directive which allows someone to assist us during a period when we cannot manage our affairs or make medical decisions on our own, are necessary.

Such planning may lengthen our lives by eliminating some of our stress and also by giving us the knowledge that we will have taken care of our loved ones which certainly will be appreciated by them if we become disabled or when we pass.

In addition to the big three – will, power of attorney and advanced healthcare directive – a trust, such as a Medicaid Asset Protection Trust or a Special Needs Trust also may be necessary.

Ask Yourself:

• Do I have a will? Have your reviewed your will with an attorney in the last three years? Even if you have a revocable living trust, you must have a will.

• Do you have a power of attorney which runs to your spouse or other trusted person? Is the power of attorney a “durable” power of attorney?

• Do you have a healthcare proxy/ healthcare power of attorney/living will? Have you reviewed it with an attorney in the last two years?

• What is the amount of your uninsured/ underinsured automobile insurance coverage? If you are injured in an auto accident, you should insist on an immediate claim under your insurance coverage if you or a family member is injured.

• Do you and your loved ones always wear seat belts? Do you know that the seat belt defense could reduce your recovery in the event of an accident?

• Do you have working smoke detectors in your residence?

• If you or your parents are elderly, have they or yourself transferred the family residence to a Medicaid Asset Protection Trust with a reserved life estate to minimize Medicaid liens in nursing home charges and retain step up tax basis?

• Are you exercising caution in placing or keeping property in joint ownership with right of survivorship?

Awareness of death is necessary to appreciate the present gift of life and to motivate accomplishment.

“It is crucial to be mindful of death [if one is to lead a full life].” -The Dali Lama and Jeffrey Hopkins, Advice on Dying: And Living a Better Life.

Tom O’Connell is an attorney at O’Connell & Riley, Esqs, aiding clients in estate planning, elder law and estate litigation. Their offices are located at 144 East Central Ave. in Pearl River, NY and 210 Summit Ave. in Montvale, NJ. He can be reached at or 845-735-5050.

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