I recently gave a series of talks in which I explained that every stage of life offers an opportunity for estate and elder law planning. What source better than the Bard himself, to help to organize these talks. Here is a brief summary of my presentation.
The play “As You Like It” includes a beautiful passage which summarizes the seven stages of life starting with the “infant, mewling and puking in the nurse’s arms.” So we start with the question of estate planning for the infant. Planning for children is at the heart of any basic estate plan. This can include making sure there is a guardian named for the child in the event the parents pass. It also includes creating a trust for the child and naming a trustee to manage the inheritance on behalf of the child. Children cannot legal hold title to property, so a trust is a “must-have” for any parent looking to put basic documents in place.
Next comes the “whining school boy, with satchel and shinning morning face, creeping like snail unwilling to school.” Planning for a child or grandchild’s education can be a big part of estate planning. As noted above, a trust can specifically provide for disbursements for education. Grandparents can provide specific trusts in their wills or stand-alone trusts where funds are designated for particular grandchildren. It can sometimes be preferable to skip the child generation and give directly to grandchildren to ensure the funds are used for education purposes only.
Next comes the “lover sighing like furnace.” After the honeymoon is over, married couples should pay a visit to an estate planning lawyer to make sure their affairs are in order. Marriage has multifarious legal effects, not the least of which involves estate planning. Marriage creates legal rights in the surviving spouse. Planning is particularly important when the marriage is a second marriage and there are children from prior relationships. Marital trusts can be useful tools to provide for the surviving spouse but also to segregate and make sure funds remain on the surviving spouse’s death for the children of the first to die. Couples need to also be aware of the right of election laws in the State of New York which automatically entitle a spouse to one-third of the net estate. These rights can be waived or abridged, but only by a signed writing.
Shakespeare goes on to speak of the soldier, “full of strange oaths and bearded like the pard, sudden and quick in quarrel, seeking the bubble reputation even in the canon’s mouth.” This description reminds me of the client who feels invincible and is in the prime of his or her life – what better time to put one’s affairs in order! Often advanced planning is the key to success with estate planning. For example, certain government benefits can be available only to individuals who have divested themselves of their assets more than 5 years before applying for the benefits. Long-term care insurance policies and other insurance policies are most affordable when purchased when healthy. Mental acuity is also an important commodity when planning out one’s Will or Trust. It is far preferable to designate one’s beneficiaries when healthy and not subject to the influence of a child caregiver or other person who may seek favor in exchange for his or her care.
The next stage of life, the “justice, in fair round belly with good capon lined…” is the stage of life where one has made one’s fortune and is either retired or about to be retired. This is a critical time, if it hasn’t been done already, to formulate a comprehensive estate plan that takes into account some or all of the following: tax planning for those who have accumulated substantial wealth, asset protection for Medicaid and long-term care planning, probate avoidance, trust planning, providing trusts for adult children and grandchildren, retirement planning, and numerous other objectives. Delaying beyond this phase can compromise certain planning objectives.
The penultimate phase of life brings to bear the importance of elder law and Medicaid planning. Shakespeare describes this stage as “shifting into the lean and slippered pantaloon, with spectacles on nose and pouch on side; his youthful hose well saved, a world too wide for his shrunk shank, and his big manly voice turning to childish treble, pipes and whistles in his sound.” As noted above, it is preferable to have already formulated and executed an estate plan before reaching an advanced age. Nevertheless, there are many services that we can provide to seniors and their caregivers to help them maintain dignity and quality of life. Elder law attorneys can provide chronic care Medicaid services including making a client eligible for home care Medicaid or nursing home Medicaid. They can also ensure advanced directives are in place and updated including Powers of Attorney and Health Care Proxies.
The last phase of life Shakespeare describes as “second childishness and mere oblivion.” Suffice it to say, proactive estate planning is not ideal for this phase as it has hopefully already been put in place and the family is experiencing the benefits of prudent planning. End of life planning in its own right, however, is important and includes making your wishes known in a Living Will regarding withholding or withdrawing life sustaining treatment, appointing an agent for disposition of remains, being detailed regarding your wishes for disposition of remains and organ donation, and other end of life matters.
Thus, not that Shakespeare wrote this with estate planning in mind, it makes a useful way of showing how every stage of life warrants in some measure visiting an estate and elder law attorney. Adieu!