Each year the local Alzheimer’s Association chapter hosts a conference for caregivers. Fleming & Curti partner Leigh Bernstein spoke at the 2007 conference on “Legal Planning — Thinking Today about Tomorrow’s Legal Issues.” The audience peppered her with questions — too many to answer in the time allotted. She brought the written questions back to her office, and has now answered them online.

What legal concerns trouble caregivers? Not surprisingly, many of the questions focus on powers of attorney. Participants wondered if powers of attorney can be contested, or abused, or enforced (yes, yes and maybe, to generalize her answers). They very practically asked what steps they should take to make it easier to provide care. And they inquired about the cost of long-term care, and how to qualify for assistance from ALTCS, the state’s long-term care Medicaid program.

The complete questions and answers are online, but we have our favorites (synopsized here):

Is divorce from my disabled husband for financial reasons a good or bad idea? Our answer: divorce almost never makes sense financially, and can be devastating emotionally. The one exception we sometimes see is where the well spouse brought significantly more assets to the marriage, or the couple has a prenuptial or property agreement already in place.

How do trusts affect the ALTCS process? Our answer: it depends (the classic lawyer’s answer), but there is one circumstance where a revocable living trust, executed not for long-term care planning but for simple probate avoidance, can actually help the community spouse retain more assets after institutionalization of the ill spouse.

How will I know when it is time to seek conservatorship over my husband’s estate? Our answer: we almost always counsel families not to invoke the court process unless there are steps they need to take which can not be accomplished any other way. The expense and inconvenience associated with guardianship and conservatorship proceedings are substantial, and ought to be avoided where possible. Of course, if an incapacitated individual is at risk (either physically or financially), that hands-off attitude must change, and quickly.

Will joint tenancy between husband and wife avoid the need to consider a trust, or a conservatorship proceeding? Our answer: probably, yes. One common problem arises when the well spouse (and joint tenant) dies before the ill spouse—suddenly no one has authority to handle the survivor’s finances. And we do not recommend adding children as joint tenants to prevent that problem, as it can create new problems as well.

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