Older adults who lack the historically traditional support system of a spouse and/or adult children face greater challenges related to personal finance, access to healthcare and long-term care, and personal autonomy as they age. These individuals are commonly referred to as “Solo Agers.” The options available for most older adults to make major life decisions generally require another person to act on their behalf as a representative or advocate. Therefore, Solo Agers must use strategic planning and engage experienced advocates for a successful life in their later years.
long-term care, independence, estate planning, elder law attorney
Our society places a significant value on personal autonomy, self-determination, and the ability to control one’s own destiny. Unfortunately, sometimes the challenges life bestows upon us, such as chronic illness, traumatic events, injuries, and aging, can cause an individual’s independence to be questioned, diminished, and even eliminated.
While many older adults may face challenges as they age, those who lack the historically traditional support system of a spouse and/or adult children may face even greater challenges (Thayer, 2021). These individuals are commonly referred to as Solo Agers—meaning people who live alone without a spouse or partner, and either have no children or their children live far away, are estranged, or have special needs (Partnerships in Aging Program, n.d.). Aging alone, or solo aging, is not a unique phenomenon. There are approximately 22.1 million Solo Agers in America, and an estimated 27.7% of older adults who live alone are childless (U.S. Census Bureau, 2021).
Relying on close family members such as a spouse and/or adult children, friends, or other trusted partners can be an extension of one’s personal autonomy (Lin & Wolf, 2019). But what happens if you do not have someone to rely upon as an advocate or care partner?
Many Solo Agers face similar challenges, as described below.
Virginia is an 84-year-old widow whose husband, Ulysses, died 2 months ago. Virginia and Ulysses fell in love in high school. They were married when Ulysses returned from the Army and remained inseparable for almost 65 years. They had one son who died. Virginia’s closest relative is a niece who lives hundreds of miles away. While Virginia is active in her church and volunteers regularly in her community, she has not yet identified a trusted individual to advocate for her or help with her needs.
Juan is a 92-year-old widower who lives with and cares for his developmentally disabled son, Marc. Juan’s wife died 15 years ago, and he and Marc live alone. Juan worries about Marc’s future should he pass away, due to his age and because he has health issues. Most of his friends have either died or retired to a warmer climate, and his nearest relatives are cousins he hasn’t seen since he left Puerto Rico 80 years ago. Juan’s only regular interactions are with his doctors and his barber.
Don and Charley
Don and Charley were married in 2016 following the legalization of same-sex marriage, but they have been partners for almost 30 years. Don, who is 86, is 20 years older than Charley and is experiencing signs of dementia and other chronic illnesses. Don has two children who are about the same age as his husband. Charley has no children and is estranged from his family. Although the couple is very involved in the LGBTQ+ community, most of their friends live out of state. Charley is concerned that he will have no one to care for him as he ages if Don dies before him. He is also worried about being the primary caregiver for Don and navigating family conflict with Don’s adult children.
Hedy is a 70-year-old woman who is divorced and has no children. She is an only child and moved in with her father after her mother died. She cared for her father as he struggled with Parkinson’s disease and is grieving his recent death. Although Hedy is retired, she still maintains a few close friends from her old job. She also has a close relationship with a woman who has lived across the street from her parents for almost 40 years. Since her father died, Hedy spends most holidays with her neighbor’s family.
Although everyone in these examples has a unique background, two common scenarios can be identified repeatedly for most Solo Agers:
- They live alone or expect to live alone at some point in the future; and
- They have a limited number of or no relatives or friends to care for them as they age.
In these situations, an attorney can help the Solo Ager set the course for their future by developing a plan.
The thought of becoming incapacitated and eventually dying can be frightening to anyone. Imagining going through these life events alone can create an overwhelming sense of anxiety. Proper planning can help reduce anxiety about the future, mitigate challenges, and in many cases avoid disaster. Planning also can ensure that an individual’s wishes are put into the language of a care provider, court system, or others. Legal documents help individuals protect themselves against unwanted care and provide a framework to think through what they want their life to look like as they age.
From the attorney’s perspective, the most basic and fundamental elements to estate and long-term care planning can be broken down to lifetime planning and legacy planning.
The first question is who will make decisions if the older adult becomes incapacitated or needs assistance. In this case, an attorney can provide recommendations about what legal documents are necessary to allow trusted relatives, friends, or professionals to make these decisions.
These documents may include formal legal instruments, such as a Durable Power of Attorney, Health Care Proxy, HIPAA Authorization, and Living Will. These are often referred to as advance directives, meaning that the legal instrument provides a way for an individual to direct their wishes in advance. While the names and legalese of these instruments will vary from state to state, advance directives work to protect the older adult’s wishes and desired plan of care.
‘The importance for Solo Agers to have advance directives cannot be overstated.’
The importance for Solo Agers to have advance directives cannot be overstated. If Solo Agers become incapacitated and do not have advance directives in place, they could be subject to the decisions of a court-appointed conservator or guardian. Health systems may require advance directives to provide care or to discharge an individual to their home or a community-based setting. Planning for these situations prevents other parties, such as healthcare providers, financial planners, or others from making decisions for the older adult on their behalf.
Paying for Care
Another important consideration in lifetime planning is paying for long-term care. Individuals typically look to three options to pay for long-term care: private pay, long-term care insurance, and public assistance such as Medicaid. Long-term care services are very expensive and private payment of long-term care services for an extended period usually requires considerable financial means or significant income. For many older adults, paying out-of-pocket for long-term care is out of reach.
Long-term care insurance (LTCI) is designed to cover long-term care services (U.S. Department of Health and Human Services, 2020). Policies may cover assistance with activities of daily living, skilled nursing care, homemaker services in conjunction with personal care, and other long-term care services. LTCI policies can be purchased by individuals from an insurance agent, group policies offered by employers, and membership association policies (Center for Insurance Policy and Research, 2022). However, premiums may be cost-prohibitive and coverage may be restrictive. For many older adults, LTCI limits necessary services and imposes unrealistic waiting periods. The old saying “Buyer Beware” applies here.
Older adults may also consider using an existing asset, like a retirement account or home, to cover the cost of care. Solo Agers should access qualified retirement savings to pay for their long-term care services as a last resort. Qualified retired savings can grow, tax-deferred, until they are distributed to the recipient (Individual Retirement Accounts, 1994), and in some states, the principal may be exempt for purposes of Medicaid eligibility (Resource Eligibility Standards, 2004).
Others may use home equity to pay for long-term care through a reverse mortgage loan. These loans do not require repayment until the borrower dies, the house is sold, or the borrower vacates the home for 12 months (usually to move to a nursing home; Consumer Financial Protection Bureau, 2022). There are significant costs associated with reverse mortgages and they may not be in the individual’s best interest.
Finally, people who are aging alone may seek help for long-term care from public assistance or government programs such as the Veterans Health Administration (VHA) or Medicaid.
Veterans should look to the VHA. Benefits may include 24/7 nursing and medical care, physical therapy, help with activities of daily living, comfort care and help with managing pain, support for caregivers who may need skilled help, and respite care. Some VA Medical Centers offer “medical foster homes,” which pair those who do not have a caregiver with a trained care professional (U.S. Department of Veterans Affairs, 2023). Others may be eligible for Aid and Attendance benefits, which is a monthly pension amount paid to eligible veterans or their surviving spouses to cover unreimbursed medical expenses. Eligibility is based on the veteran’s wartime service, age, disability, income, and assets (U.S. Department of Veterans Affairs, 2022). The government also has recently expanded the VA Caregiver Support Program to include new resources and funding for caregivers of veterans of all service areas, including friends or family who care for older adults (U.S. Department of Veterans Affairs, n.d.).
Medicaid comes into play as “the payer of last resort” because eligibility requires that the recipient has exhausted most other payment options. The recipient must have also pursued long-term care coverage from other assistance programs such as veterans benefits and Medicare. Despite the need for long-term care, many older adults may not be eligible for Medicaid services due to Medicaid’s resource and income eligibility requirements, which vary from state to state. For many Solo Agers, this means a choice between two difficult paths.
The first option is for the older adult to divest themselves of their hard-earned assets that may have taken a lifetime to build and wait to qualify for Medicaid after 60 months. For some, the 5-year wait is too long as long-term care issues may arise during the waiting period. The second option may be even more dire—to “spend down” resources so that the individual is poor enough to qualify for Medicaid.
‘Partnering with an attorney helps to ensure that self-advocacy is successful.’
Given these difficult choices, Solo Agers can benefit from working with an experienced advocate to allow them to make an informed decision. Successful Medicaid planning requires an individual to give up control of assets they hope to protect, usually for the next generation. Such plans typically involve a trustworthy friend or relative who keeps the assets safe in the event they are needed in the future. This loss of control and reliance upon others may not be the best strategy for someone who is aging alone.
A better alternative may be for the Solo Ager to “spend down” their assets to qualify for Medicaid benefits. Before spending down assets, careful consultation with an elder law attorney can help ensure the individual has the resources necessary to maintain their financial independence as they work toward Medicaid eligibility.
Legacy or estate planning requires thinking about what is important to the individual and how they want to be remembered. An attorney plays the role of drafter, providing instructions to honor the older adult’s wishes after they die. Adults can develop these documents at any age, and typically will update these documents after major life events such as marriage, divorce, loss of income, or financial windfall.
The foundation of any estate plan is a Last Will and Testament (Will). The Solo Ager as the “Testator” uses the Will to direct who will receive assets and who will be responsible for distributing the assets to the beneficiaries. Although a Will should be part of all estate plans as a safety net, it may not be the best vehicle for administering the assets of Solo Agers. This is because the Will must be processed through a court proceeding known as probate and court proceedings may be costly and lengthy.
A better approach for Solo Agers may be to use a legal instrument known as a “Revocable Living Trust.” During their lifetime, the Solo Ager can use the assets in the trust for their benefit. Upon their death, a “successor trustee” identified by the older adult would then collect and administer the trust assets according to the Solo Ager’s wishes and generally without any court involvement. Solo Agers should also establish beneficiary designations on all of their financial accounts, retirement accounts, and insurance policies, which will allow the balance of the accounts to pass automatically to their beneficiaries. For those who do not have a person they would like to receive their assets, charities and other institutions can be designated as a beneficiary, allowing the Solo Ager to support an issue or cause that is meaningful to them (Special Rules for Credits and Deductions, 1993).
Planning for the Future You Want
Many older adults have learned to advocate for themselves over the course of their lives. For example, those who have cared for parents, a spouse, or a child with special needs are often very familiar with the challenges and obstacles of the U.S. healthcare and social care systems. Others may have experience advocating for themselves as members of a marginalized population, such as the LGBTQ+ and disability communities.
The advantage of partnering with an attorney is not to supplant the voice of the older adult, especially those who are aging alone. Rather, partnering with an attorney helps to ensure that self-advocacy is successful. An attorney adds the voice of a trained advocate to ensure that the wishes of their client are honored.
There are many reasons why people put off seeking the professional services of an elder law attorney. Many are not aware of the importance of or need for these services, or they may not realize that elder law is a specialized area of practice. Much like the difference in knowledge between a geriatrician and a primary care doctor, an elder law attorney understands the ecosystem of issues that people face as they age.
Others may be nervous to speak with an attorney because of fear that they cannot afford the services. But so often the services of an elder law attorney can help avoid disastrous consequences. Legal fees tend to represent a small fraction of an individual’s total assets and can help improve the financial situation of the older adult if the attorney successfully secures benefits to help pay for long-term care needs. Those with limited finances may also consider seeking free or low-cost elder law services through their local senior center, legal clinics within local law schools, or an area legal services provider.
People who age alone have relied on themselves to develop full, meaningful lives. The latter years of life do not have to be any different. With careful planning and intention, Solo Agers can direct the future they desire and leave a legacy behind them to celebrate their life.
Eric J. Einhart, Esq., is a partner with Russo Law Group in the New York City metro area, which focuses on estate planning, elder law, special needs planning, trust and estate administration, guardianship, tax law, and real estate in New York. Judith M. Flynn, Esq., CELA, is an elder law attorney at Falco & Associates in Quincy, MA. Roberta K. Flowers, Esq., is a professor at Stetson University, director of the center for Excellence in Elder Law, and director of the LLM in Elder Law in Gulfport, FL.
All of the authors are officers on the Board of Directors for the National Academy of Elder Law Attorneys (NAELA), whose mission is to equip attorneys for the complexity of serving older adults and people with disabilities.
Photo credit: Shutterstock/oatawa
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