San Diego Estate Planning Attorney

Why Everyone Should Create an Estate Plan

Video Transcript:

Vincent Casiano: 

Nobody wants to deal with their own mortality, nobody wants us to think that they're actually gonna pass away, but now with COVID, people are realizing, "Hey, maybe I really need to get something in place. Maybe I can't wait until I'm 95 to do that."

Rob Rosenthal: 

So how important is estate planning and could it be now more important than it's ever been. Well, we're gonna find out the answers to those questions and a lot more right now, because that's what we're going to Ask the Lawyer. Hi again, everybody I'm Rob Rosenthal with askthelawyers.com, and my guest is San Diego attorney Vincent Casiano. We will get to Vincent in just a second, but I wanna remind you if you'd like to ask Vinny any questions of your own, it's easy go to askthelawyers.com, click the button up at the top that says, "Ask a Lawyer", and it's a very simple process there, or you can simply call the phone number that you'll see on the screen during our conversation. Vinny, it's good to see you. Thank you for making some time to help us out today.

Vincent Casiano: 

No problem. Nice to be here.

Rob Rosenthal: 

So the world is, a lot has been going in the last couple of years to put it mildly. Do you think people now or maybe more people are realising estate planning and long-term care planning and maybe is more important than ever?

Vincent Casiano: 

No, I do believe that, I think all of us, when this COVID thing hit and everybody knows somebody that got really sick, and a lot of us know people that passed away long before they should have, because of this horrible disease. This horrible virus. And one of the things that's unfortunate is that actually 70% of people die without an estate plan.

Rob Rosenthal: 

Wow.

Vincent Casiano: 

And one of the reasons for that, Rob, is that nobody wants to deal with their own mortality, nobody wants us to think that they're gonna pass away. But now with COVID, people are realizing, "Hey, maybe I really need to get something in place. Maybe I can't wait until I'm 95 to do that." So yeah, a lot of people are doing that, and I get a lot of phone calls from people that are ill, and those long haulers. My cousin is long haulers, God. So they have medical issues now, so like you said, not just the estate planning, but the long-term planning that you wanna do is really essential.

Rob Rosenthal: 

Well, let's talk about that. Let's talk about that a little bit because I think some people think about estate planning, "Well, I'll plan for when I live a nice long healthy life and what happens," but now people may realise I need to have some health care plans as well. Is that something that can be built into estate planning. And how does that work?

Vincent Casiano: 

No, that's a good question, Rob, that's essential. So, a lot of people call me up and they say, "How much you gonna charge for a will?" Or, "How much are you gonna charge for a trust?" And I'm saying, "Well, I think you mean an estate plan, because it's not just who gets your stuff when you die, it's who's gonna deal with your finances, but just as importantly, your health care decision making, if you can no longer make those decisions. And what a lot of people don't understand is that if you don't sign some papers in a very particular way, very formally, if you don't create what we call an advanced healthcare directive, just because they're your family, people can't make medical decisions for you. They can't put you into a hospital, or an assisted living facility or a nursing home, if you need it without getting a court order, and that cost tens of thousands of dollars as opposed to a really good estate plan, which is a fraction of that cost. Plus, you get to choose who's gonna be in charge, and you get to tell them what you want done in certain situations, this is absolutely essential.

Rob Rosenthal: 

How specific can you be in those health care plans, Vinny?

Vincent Casiano: 

Well, you can be very, very specific. There's an option you have where you can say, "I'm going to let my agent decide, whatever they decide is fine." Most people don't do that. Most people actually get very particular. When I first started practicing, Rob, I would spend about five or 10 minutes with a form, and I'd just asked the person, "Check a box, check a box, pull the plug if I'm in a coma or vegetative state. I wanna be cremated." Didn't talk about any of these other things. Now, I spend 45 minutes even longer with clients talking about very specific situations. Not only, "Do you want life support if you're in this situation, and that situation, and that situation. If you're on life support, do you want nutrition and hydration." A lot of people still may remember that case in Florida, Terri Schiavo.

Vincent Casiano: 

This is a woman who didn't have a plan, she was married, she didn't have an advance health care directive, most people believe that she was in a coma or vegetative state, but she was on... She had an IV, she had a food tube. This went on for 20 years, the courts got involved, everybody was fighting, the family was fighting with the husband, claiming that he just wanted to kill her for the insurance, it was a circus because she didn't have this document. In the end, the courts ultimately, after about 20 years, decided that they could pull her off the life support. She died, they did an autopsy. They found out that she indeed was in a coma or vegetative state, they can figure that out by going into the brain and figuring it out, but all of this heartache and just families being torn apart, and I mean even the President got involved. The Supreme Court said, "No, it's none of our business. We're not getting involved in this one," but if that woman would have had an advanced healthcare directive none of this would have happened. But again, she was young and she wasn't thinking anything was gonna happen to her.

Rob Rosenthal: 

What about long-term care and planning? I think that's the thing that... I don't know, maybe 10 years ago, people never talked about long-term care and what that... Can that also be involved and how does that figure in to your estate planning?

Vincent Casiano: 

Sure. Gotta correct you here. 20 years ago, people were talking about this. Because that's when I became an Elder lawyer but it was less talked about. I'll agree with you on that, Rob, absolutely. As we live longer and longer and longer, although COVID actually reduced the age, our average age span at this point. The life insurance companies, all those actuaries, they're like, "Oh, wait a second." But in any event, we still are living... Modern medical science, the doctors are great, they learned how to keep us alive. They have not figured out the quality of life. They haven't figured out that, as a society, we haven't figured it out it, how do we deal with people when they can no longer... They can no longer take care of their own daily living activities. They can't get in and out of bed, they can't get on and off the potty, they can't bathe themselves, they can't prepare their meals. They can't feed themselves, they can't ambulate. All of these different things, and it doesn't happen. Sometimes it's an on-off switch, somebody has a major stroke that happens, but a lot of times it's a slow decline.

Vincent Casiano: 

We call that global elder decline, that's what they said to my father. You can't diagnose him with anything, he's just getting old. He lived till 93, he made a great run of it. But he got to the point, it got tougher and tougher for him to do certain things. If you have a family and the family can come in and they can take care of it, that's great, but let me tell you something that becomes more and more difficult. Is there somebody that's not working that can be there all the time? If not, how much does it cost to bring in a caregiver? 25 bucks an hour, right? To have somebody. And they need to be monitored. Those caregivers need to be monitored. So yeah, this is a huge issue and you need to deal with that in your power of attorney, in your advanced healthcare directive, in your trust. There are provisions that a good attorney will start this discussion, they'll give you options on things you can add. Give you ideas on how you can deal with these issues.

Rob Rosenthal: 

What about Medi-Cal? Tell me about that a little bit. Is that something people should use for long-term care, in your opinion?

Vincent Casiano: 

You know Medi-Cal is an incredible program, okay. Medi-Cal, what the rest of the country calls Medicaid, and what people need to understand is it's a jointly run federal and state program. Alright. California is one of the most liberal states, and I mean that word liberal in a good way, because you can qualify for benefits in Medi-Cal, alright, in this state, much, much easier than you can in almost every other state of the union, okay. And it is a way to help pay for certain care, care in a skilled nursing facility. Look, there are 40 different programs under the Medi-Cal umbrella, approximately 40. The one that I talk about most is the long-term care Medi-Cal program which will pay for a nursing home if you meet the medical criteria, and if you have a certain amount of assets. You have limits on what you can have in assets. Now, beginning, and just now in this year, I've been to several seminars and I'm still trying to wrap my head around these new rules that California is coming up with, but it's going to make it easier and easier for people to qualify for Medi-Cal.

Vincent Casiano: 

And there are also what we call waiver programs in Medi-Cal that now it's not just that, "Oh, you need to be in a nursing home to get long-term Medi-Cal." You can actually get a waiver to go into an assisted living facility, which makes a lot of sense for everybody, assisted living facilities are much nicer places to live than a nursing home, okay. And if the government's gonna pay for it, it's a lot cheaper than paying for the nursing home, right? So if we can keep the nursing homes for the people that really are fully disabled and need the skilled nursing care, 'cause you don't necessarily need skilled nursing care to be in a nursing home, that's not necessarily the case. You need 24/7 custodial care. But if you could take that person which the government is, let's just say they're paying $7000 a month to pay for that and they can bring them into an assisted living facility and now they're only paying $3500, well, that's a win-win for everybody. Now, this is not just like, "Oh, you just get it. You can just sign a piece of paper and get it." There's a lot to it.

Vincent Casiano: 

There's a lot of planning that needs to be done. A lot of transfers, there's changes to an estate plan that needs to be done, 'cause there's three phases of this planning. There's can you get eligible? What's your share of cost? And you want to avoid having to pay back the state of California when you pass away.

Rob Rosenthal: 

That sort of leads me to maybe my last question Vinny, is that, thanks to the Internet, there may be people who think, "I can just download some forms off the internet. I can fill all this out myself. I can save myself attorney's fees." Tell me about someone like yourself, how you help me? Why shouldn't I just do it that way? What would you tell somebody?

Vincent Casiano: 

Sure. One of the things that happens a lot is a typical scenario, okay. Somebody has a crisis health incident. They go into the hospital, if they spend four days in that hospital, three days not including the day of discharge, they're admitted to the hospital, okay, and they get out and they need rehab. Say they had a stroke, they need to learn how to swallow. They need to learn... They break a hip. They need to get in and out of bed. Medicare will pay for the first 20 days. Okay, after that, they're not gonna pay. And most of the facilities want you out. They love getting that Medicare payment 'cause it's very high, but they don't want you to go on Medi-Cal. They don't wanna accept the... They want you to privately pay, okay. So a lot of the facilities will say, "Oh, you don't need to get an attorney, we'll submit the paperwork for you."

Vincent Casiano: 

Okay, well, I can look at somebody's finances, I've got a fairly long form. If people fill out that I'll be able to look at that and literally within several minutes, I'll say, you qualify or you don't qualify. And if you don't qualify, here are the things we're gonna do, okay. If you don't know that, you try to do it on your own or you let the facility do it, they're not gonna tell you, "Oh, you know what, you have to transfer this asset here, you're a little bit over." They submit it, you find out 45-60 days later that your loved one didn't qualify, and by the way, here's the bill for $20,000, okay. So, that's why it doesn't make any sense not to get the advice because not just becoming eligible, remember I said there's three things, eligibility, share of cost, and avoiding having to pay back the state of California when you pass away. So this is planning that needs to get done. Even if you qualify without doing anything, are you minimising the amount you have to pay to the nursing home? And if you just leave everything the way it is, if you pass away, are you gonna have to pay back to State of California. Without coming to somebody like me you're not gonna know that.

Rob Rosenthal: 

Lots of really helpful information, Vinny and I look forward to our future conversations 'cause I've already learned so much from talking with you. Thank you for helping us out.

Vincent Casiano: 

Alright, Rob. Thanks a lot, I appreciate it.

Rob Rosenthal: 

That's gonna do it for this episode of Ask the lawyer. My guest has been San Diego attorney Vincent Casiano. I remind you, if you'd like to ask Vinny questions of your own, go to askthelawyers.com, click the button up at the that says "Ask a Lawyer", and it's a very simple process it will walk you right through that process. Thanks for watching. I'm Rob Rosenthal with Ask the Lawyers.

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