Elder Law Attorney: Caring For Your Elderly Parents

San Diego Estate Planning Lawyer Vinny Casiano

Video Transcript:

Vincent Casiano: 

Is it time for you to take charge or is it not? That's the big question. Sometimes it's very clear, sometimes it's not.

Rob Rosenthal: 

When it comes to caring for your elderly parents, do you even know the right questions to ask and where do you turn for help? We're gonna find out right now, because that's what we're going to ask on this episode of Ask the Lawyer. My guest is California Attorney Vincent Casiano. I'll remind you right off the top, if you wanna ask Vinny questions of your own, just go to askthelawyers.com, click the button up at the top that says, "Ask a Lawyer," and it'll walk you right through the very simple process. Or, of course, you can call the phone number you'll see on the screen during our conversation. Vinny, good to see again. Thank you for making some time to help us out.

Vinny Casiano: 

Hey, Rob. It's great to see you again.

Rob Rosenthal: 

So when we're talking about elder law, elder planning, that sort of thing, we're talking to the children of the elderly person, in general, is that right?

Vinny Casiano: 

Yeah. Very intuitive. Absolutely. First thing that happens almost all the time is that I have an adult child call me up. That adult child is concerned. Something has happened with their parent, whether it be they're worried about their driving, whether it be they're becoming forgetful, whether it be they haven't paid a bill, whether there's been some person or entity that has come into their lives and is trying to convince them to do things that the kids know, "This is not right." And it ranges from paying too much for putting a roofing on your house to having caregivers come in and wanting them to enter into contracts, or you can go as far as changing wills and trusts and embezzling money, quite frankly.

Rob Rosenthal: 

And this is at a time of life when the roles start to change and the children are becoming the caregivers and having to take care of the parents. Do you find that in general people are ready for this change or not ready?

Vinny Casiano: 

Yeah, no, it really depends. It depends on, sometimes there's a catastrophic health crisis event. Somebody has a heart attack or something happens where they immediately go from being able to independently live on their own to where they need assistance. Sometimes that's just physical, other times it's mental. Sometimes the onset of what we call cognitive decline, cognitive impairment, dementia is a term that's used frequently, is a slow onset. It's not always an on-off flick of a switch. But as I said, 90% of the time I have adult children contact me at first. And I need to just go back on this just a little bit, Rob, is that I have to ascertain at that point, are the parents, do they have capacity, can they be my clients? Or do they lack capacity and do I actually have to represent the children to ultimately help the parents? Right? Because there's conflicts of interest and all sorts of ethical dilemmas that don't exist in other areas of the law.

Rob Rosenthal: 

It would seem to me, Vinny, that this is a situation where they say, You don't know what you don't know. I would think many times when these adults come to you, they don't even know what they should ask you about. Do you find that to be the case?

Vinny Casiano: 

Yeah, no, absolutely. The first thing that normally happens is they're so relieved that they actually got an attorney on the phone, because I do answer my phone or I do return the phone calls as opposed to my staff, because I can quickly understand what's going on. With a lot of other attorneys, you get some staff member and maybe two weeks later you'll get on the phone with an attorney, and you'll get on the phone with a junior attorney, quite frankly. But with me, I pick up the phone, and they just wanna tell me everything right at the first time, the first second, right? And I understand that. Both of my parents have passed, but I took care of both of them for years before they passed. And so I was part of being the caregiver child, also being an elder law attorney, and saw at firsthand what you have to do. And literally it goes backwards. It's almost like you have a child, except that instead of them getting older and becoming more independent and you having to worry less and less, it actually goes the other way where you have to worry more and more and more, and not knowing what they're going to do next, as far as they still have their ability to walk out of the house and get in the car and drive and do things, right?

And that can be not only frustrating, but it's scary for kids when they know... My mom came back... It seemed like for a while, every time she came back, I said, "Mom, what happened to the car? There's a scratch on the side of the... What happened?" She goes, "Oh, I don't know." [chuckle] You can laugh about it 'cause she never hurt anybody, but God forbid she did, right? Yeah.

Rob Rosenthal: 

So what are some of the questions someone should ask when they contact you, Vinny? What are some of the first things they should know or maybe questions you'll ask them? Take us through that process a little bit.

Vinny Casiano: 

Sure. Well, the first thing I wanna know is, "Okay, tell me what's going on with Mom and Dad first. Tell me what's recently happened, tell me why you're concerned." And then that can range from a whole bunch of things. Next question I need to know is, Do your parents have estate planning documents? Do they have documents in place that if they no longer can manage their affairs on their own, meaning their finances, or they're unable to understand the consequences of their healthcare decision-making, do you have a power of attorney for finances and a trust and an advanced healthcare directive in place that allows you to be able to make these decisions for them? That's the first thing I wanna know. Are they in place? Then, like I said, there's this gray area. Is it time for you to take charge or is it not? That's the big question. Sometimes it's very clear, sometimes it's not.

Rob Rosenthal: 

What about the big question of whether if the parents can't stay in their home, if they're not able to take care of themselves in the home, and if they have to find care outside of the home, I'm sure the question you get, "How do I pay for all this? How do we pay for it?" What's your advice in those situations?

Vinny Casiano: 

Well, first thing you have to ascertain is how much help do they need? What is their living situation like? Right? So depending on the resources that a family has, a lot of times what I'll recommend if they do have resources, Let's get somebody in there that's an expert at looking at the way the house is set up to make sure it's safe for them to live there. Right? Next thing is, are there family members that are available and can help? What help do they need? Can they still cook, can they not cook, have they left the burner on, almost burnt the house down? Right? Can they drive, can they get to their appointments? Are they actually taking medications that have been prescribed for them? So if they have family members that can do it, fine. Let's see if we can get a schedule to make sure that these things are gonna be taken care of. If not, do they have the resources to pay for a caregiver to come in and to help them with their, what we call daily living activities? Sometimes it's maybe just a few hours a day, sometimes it's a combination of family and paid caregivers. Right?

Vinny Casiano: 

Now, sometimes it gets to the point where you need somebody there almost all the time. Now, unless you are independently wealthy or you have a long-term care insurance policy that will pay, then people are starting to worry about, Okay, how are we actually gonna pay this? Because you're talking about $25 an hour for, really, non-skilled people to be there and basically be a babysitter for your parents. And if you're talking, you need that done 16 hours a day, just do the math. That's 400 bucks a day. That's a lot of money. So we start to look at, Okay, if they can't still live in the home, can they go to a residential care facility, can they go to an assisted living facility? Will that be less expensive? But are your parents willing to move from there? A lot of times they're not, they just wanna stay in the house. Right? So then you talk about different ways; can you finance this? Obviously, you look at a whole range of options. What are their resources, can they liquidate anything to pay for this? Right? Or can we look at getting them qualified for public benefits, such as what we call here in California Medi-Cal or Medicare. And the laws are drastically changing right now in California, where it is getting easier and easier and you're allowed to have more and more and still qualify for long-term care.

Vinny Casiano: 

It's not a given, there are waiver programs, there are different things that you can use, but it can be very helpful. And in essence what this is doing is it's preserving assets that are still gonna be available to distribute to the children when Mom and Dad die, as opposed to spending it all. The situation that I always tell the kids or the parents is, Look, you come to me, you say, "Yep, we're gonna sell the house, we're gonna do this." I'm gonna say, Hold it a second here. Let's make sure we understand what the consequences of that are, both from a tax perspective, and how that's gonna affect your ability to qualify for public benefits. Because you can have a house in San Diego in California that's worth millions of dollars, and that you hold that as a house, that doesn't disqualify you from accessing the public benefit system. If you sell that house and you have cash, it does. Big difference.

Rob Rosenthal: 

Is this a situation, Vinny, where sometimes these can be difficult conversations for these adult children to have with their parents, does it ever happen where all of them sit down with you and have these discussions? You mentioned a conflict of interest earlier, do you have to pick and choose? How does that work?

Vinny Casiano: 

No, absolutely, and I always recommend that my... If a senior contacts me first, I say to them, "Okay, if you feel comfortable, I'd rather just speak to you. But if you're going to rely on your kids to make a decision for you, then let's have that consultation together." Right? And I do have a letter that is compliant with the ethical obligations I have to disclose things, where I send that out before the meeting and say, Hey, please understand, nobody's my client yet. We're trying to figure this out, and you'll all agree to waive any potential conflicts of interest. Right? 'Cause think about it. One of the strategies we have in doing some of this planning is to transfer assets from the parents to the children. Through a trust, mind you, but we do do that. So Who is my client then? The kids are gonna be, "Oh yeah, you wanna transfer that property now so it's not gonna get spent and I'm gonna be assured of getting it ultimately when you die. Yeah, I like that idea." But for the parents is they lose control over that asset. Is that a good idea for them? Sticky issues, right? Full disclosure, understanding all the consequences, my job as the attorney is to give options to make sure nobody's being unduly influenced. And then to basically implement the strategy that's the choice of my client, which if the parents are competent, it's their decision, I take direction from them.

Rob Rosenthal: 

And last question, Vinny, when we started off we were talking about the adult children come to you and say, "Okay, I need to do something with my parents." When is a good time to do that? Is there ever a time it's too early, is it ever too late? Ideally, what would be the best time to do that?

Vinny Casiano: 

Certainly. You know, a lot of times, and this is all, understand elder law, the type of elder law we're talking about here, long-term care planning, having a plan in place, that is part of an estate plan. Unfortunately, a lot of people go out and they get what would be a fully, I'd say, decent trust, right? But it doesn't deal with long-term care planning. It really deals with if Mom and Dad died in bed without having any problems at the ripe old age of 85, then fine, we can avoid probate, everything's fine. But that's rarely what happens right now. So the first thing that you see is, first off, when is the last time there was a review and an update to somebody's estate plan? If it hasn't been done in three, five years at the most, you really need to go to, not just an estate planner but an elder lawyer to take care of these things. Obviously, if Mom or Dad is diagnosed with any form of dementia, any disease, Parkinson's, Alzheimer's, or the doctor says, "Oh, she's got slight dementia," something like that, Mom or Dad, or you're starting to see behaviors where they're not remembering things, they're forgetting things, like with my father.

Vinny Casiano: 

My parents had moved down to Hilton Head, South Carolina, from Long Island after everybody left. They lived there for 25 years. My father had been going to the same barber shop for 15 years. I go down and visit them, he couldn't remember how to get there. That's a big red flag. How can he not remember how to get to the barber shop that he's been going to for 15 years? Right? And understand, your parents can be really good at covering this stuff up. Really, really good at that. I know my parents were. So that's another thing that you have there. Any major changes to, you see, where they're not paying bills or they've entered into some transactions where they didn't tell you about and they were embarrassed about it because they know somebody took them for something, right? That's when, okay, give me a call right away, let's see what we can do to protect them.

Rob Rosenthal: 

Lots of really helpful information, Vinny, thank you for making some time answering our questions.

Vinny Casiano: 

Great. Always great to see you again.

Rob Rosenthal: 

That's gonna do it for this episode of Ask the Lawyer. My guest has been California attorney Vincent Casiano. Remember, if you'd like to contact him with questions about your own situation, just go to askthelawyers.com, click the button at the top that says "Ask a lawyer", it'll walk you right through the process, it's very simple. Thanks for watching. I'm Rob Rosenthal with Ask the Lawyers.

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