Michigan Estate Planning Blog

Do You Need a Revocable or an Irrevocable Trust?

 

It’s not always obvious which type of trust is the best for an individual, says a recent article titled “Which is Best for Me: A Revocable or Irrevocable Trust?” from Westchester & Fairfield County Business Journals.

In a revocable living trust (RLT), the creator of the trust, known as the “grantor,” benefits from the trust and can be the sole Trustee. While living, the grantor/trustee has full control of the real estate property, bank accounts or investments placed in the trust. The grantor can also amend, modify and revoke the trust.

The goal of a revocable trust is mainly to avoid probate at death. Probate is the process of admitting your last will and testament in the court in the county where you lived to have your last will deemed legally valid. This is also when the court appoints the executor named in your last will. The executor then has access to the estate’s assets to pay bills and distribute funds to beneficiaries as named in the last will.

Probate can take six months to several years to complete, depending upon the complexity of the estate and the jurisdiction. Once the estate is probated, your estate is part of the public record.

A revocable living trust and the transfer of assets into the trust can accomplish everything a last will can. However, distribution of assets at the time of death remains private and the court is not involved. Distribution of assets takes place according to the instructions in the trust.

By comparison, irrevocable trusts are not easily revoked or changed. Most irrevocable trusts are used as a planning tool to transfer assets for the benefit of another person without making an outright gift, or for purposes of Medicaid or estate tax planning. An Irrevocable Medicaid Asset Protection Trust is used to allow an individual to protect their life savings and home from the cost of long-term care, while allowing the trust’s creator to continue to live in their home and benefit from income generated by assets transferred into the irrevocable trust.

The transfer of assets to a Medicaid Asset Protection trust starts a five-year penalty period for Nursing Home Medicaid and a two-and-a-half-year penalty period for Home Care Medicaid for applications filed after March 1, 2024. After the penalty (or “look back”) periods expire, the funds held by the trust are protected and are not considered countable assets for Medicaid.

An irrevocable trust can also be used to transfer assets for the benefit of a loved one, friend, child, or grandchild. Assets are not controlled by the beneficiaries but can be used by the trustee for the beneficiary’s health, education, maintenance and support.

Trusts are used to reduce the size of the taxable estate, to plan for the well-being of loved ones, and to protect the individual and couple if long-term care is needed. Speak with an estate planning attorney about which trust is best for your unique situation.

Reference: Westchester & Fairfield County Business Journals (Jan. 26, 2023) “Which is Best for Me: A Revocable or Irrevocable Trust?”

What is a Life Estate?

 

A life estate is a type of property ownership that divides the control and ownership of a property. The person who creates the life estate for their home and assets is known as the “life tenant.” While a tenant retains control of the property, he or she shares ownership during their lifetime with the remainderman (the estate's heir).

Quicken Loans’ recent article entitled “What Is A Life Estate And What Property Rights Does It Confer?” explains that while the life tenant lives, they’re in control of the property in all respects, except they can’t sell or encumber the property without the consent of the remaindermen. After the life tenant passes away, the remainderman inherits the property and avoids probate. This is a popular estate planning tool that automatically transfers ownership at the life tenant's death to their heirs.

The life estate deed shows the terms of the life estate. Upon the death of the life tenant, the heir must only provide the death certificate to the county clerk to assume total ownership of the property.
Medicaid can play an essential role in many older adults’ lives, giving them the financial support needed for nursing facilities, home health care and more. However, the government considers your assets when calculating Medicaid eligibility. As a result, owning a home – or selling it and keeping the proceeds – could impact those benefits. When determining your eligibility for Medicaid, most states will use a five-year look-back period. This means they will total up all the assets you’ve held, sold, or transferred over the last five years. If the value of these assets passes above a certain threshold, you’ll likely be ineligible for Medicaid assistance.

However, a life estate can help elderly property owners avoid selling their home to pay for nursing home expenses. If your life estate deed was established more than five years before you first apply for benefits, the homeownership transfer would not count against you for Medicaid eligibility purposes.

To ensure you’re correctly navigating qualifying for Medicaid, it’s smart to discuss your situation with an attorney specializing in Medicaid issues.

Reference: Quicken Loans (Aug. 9, 2022) “What Is A Life Estate And What Property Rights Does It Confer?”

Planning for Late-In-Life Care

Planning for the health and proper care of an aging parent is no easy undertaking. That is a given. As a parent moves toward healthcare and assisted living there are myriad questions and issues to consider. These run the gamut from financial to medical and, yes, the emotional. By way of a primer, consider reading (and sharing) a recent Forbes article titled “The Basics: Assisted Living For Your Parent.” Some of the most important issues in planning for late- or end-of-life care include understanding the various kinds of facilities and treatments available. There is, for example, a decided difference between nursing home care and an assisted living situation. Even within assisted living communities there are many different kinds of facilities, from the large to the small and the homey to the clinical. In the end, you must know what to look for and what is appropriate for the elderly loved one in need of care. The key, if possible, is to include your loved in the evaluation process. Ensure that they are included in the discussions and options. Otherwise, expect resistance to change because the transition to care away from home is by nature very disruptive on many levels. Once you know the kind of care needed and your loved one is on board, then comes the question of how to pay for it and how to understand Medicaid, Medicare, and the programs that can help fill the gaps. Needless to say, this can be a complex process. Be sure to read and share the original article to help you and your loved one make a transition that is right for their circumstances.

Reference: Forbes (March 13, 2014) “The Basics: Assisted Living For Your Parent”

For more information, see www.jerryreiflawyer.com

A Medicaid Primer 101

What is your Medicaid IQ? Most Americans have heard of Medicaid, since it has been part of the national political debate for some time. A political discussion is one thing, but what does Medicaid mean to your elderly loved ones? If you have elderly parents, it is high time to learn about Medicaid and how it works. Fortunately, a recent Forbes article is a good place to start. The article is aptly titled “Medicaid And Your Parents: The Basics.” Essentially, Medicaid is a program run jointly by the federal government and each respective state government. Think of it as government insurance for, among other things, late-in-life medical care like home care or nursing home care when the one needing care has too limited financial resources. Medicaid is “means-tested.” Consequently, having too great an income or too much in assets will disqualify a Medicaid applicant and create a legal hurdle to receiving benefits. In addition, having “assets” is not the same as having the money to pay for care. For those with assets exceeding the Medicaid limits, “giving” assets away will only disqualify them from Medicaid assistance if the transfers violate the “look back” period designed to keep them from gaming the system. Of course, an elderly individual might have had innocent intentions when they made a disqualifying gift a few years ago and the need for Medicaid was unforeseen. Regardless, such transfers are a red flag when it comes to Medicaid qualification. Each state is subtly different in its approach, but these are very real rules and they require careful thought and timing. Otherwise, it is easy to run afoul of the rules now and be disqualified from care later. You owe it to your elderly loved ones to start planning for a worst case scenario without delay.

Reference: Forbes (February 11, 2014) “Medicaid And Your Parents: The Basics”

For more information, see www.jerryreiflawyer.com

Will Your IRA Affect Your Medicaid Eligibility?

For many of us and the older loved ones for whom we may care, receiving needed medical care in old age will mean ensuring an easy transition into Medicaid. The problem, however, is that there are some strict financial rules governing eligibility to receive Medicaid benefits. Consequently, it is often all-too-easy to run afoul of them. Here is an important question to ask: “Can an IRA Affect Medicaid Eligibility?” ElderLawAnswers posed and answered this question, noting that the greatest asset many of us will own throughout our lives and well into old age will be our IRA or other retirement account. That said, just because you have the account doesn’t mean it can or will pay for the needed care. No, in the end you might need Medicaid. However, the mere existence of the IRA may cause you some trouble getting into the program. So, can an IRA affect Medicaid eligibility? The short answer is that “it depends.” It depends upon whether or not the IRA is in “payout status” (i.e., are taking minimum required distributions?). This might actually work differently than you’d expect. If your IRA is in payout status, then you might be in the clear. Medicaid allows you to have some income for personal use, after all. As a result, the payout from an IRA might be so small as to not cross the Medicaid income threshold and larger amounts will simply go to the nursing home until reduced to the small personal expense amount. If your IRA is not in payout status, however, then the IRA is non-exempt and can be held against you, potentially to full value. What to do with the IRA depends upon state law and the possibility of transfer versus cashing-out. Either option may not be pretty or productive. With proper planning beforehand you can help ensure that your assets won’t accidentally trigger a problem. IRAs can be tricky. Much of what you should do will depend upon your needs and your assets, with more than a little hanging on state law. Interpreting the relevant laws can mean a world of difference, so seek competent Elder Law counsel in structuring a plan.

Reference: ElderLawAnswers (March 28, 2014) “Can an IRA Affect Medicaid Eligibility?”

For more information, seee www.jerryreiflawyer.com

Will Your IRA Affect Your Medicaid Eligibility?

For many of us and the older loved ones for whom we may care, receiving needed medical care in old age will mean ensuring an easy transition into Medicaid. The problem, however, is that there are some strict financial rules governing eligibility to receive Medicaid benefits. Consequently, it is often all-too-easy to run afoul of them. Here is an important question to ask: “Can an IRA Affect Medicaid Eligibility?” ElderLawAnswers posed and answered this question, noting that the greatest asset many of us will own throughout our lives and well into old age will be our IRA or other retirement account. That said, just because you have the account doesn’t mean it can or will pay for the needed care. No, in the end you might need Medicaid. However, the mere existence of the IRA may cause you some trouble getting into the program. So, can an IRA affect Medicaid eligibility? The short answer is that “it depends.” It depends upon whether or not the IRA is in “payout status” (i.e., are taking minimum required distributions?). This might actually work differently than you’d expect. If your IRA is in payout status, then you might be in the clear. Medicaid allows you to have some income for personal use, after all. As a result, the payout from an IRA might be so small as to not cross the Medicaid income threshold and larger amounts will simply go to the nursing home until reduced to the small personal expense amount. If your IRA is not in payout status, however, then the IRA is non-exempt and can be held against you, potentially to full value. What to do with the IRA depends upon state law and the possibility of transfer versus cashing-out. Either option may not be pretty or productive. With proper planning beforehand you can help ensure that your assets won’t accidentally trigger a problem. IRAs can be tricky. Much of what you should do will depend upon your needs and your assets, with more than a little hanging on state law. Interpreting the relevant laws can mean a world of difference, so seek competent Elder Law counsel in structuring a plan.

Reference: ElderLawAnswers (March 28, 2014) “Can an IRA Affect Medicaid Eligibility?”

For m ore information, see www.jerryreiflawyer.com

Medicaid – It Gives … And Now Takes Back Saginaw, Michigan

Medicaid is an important social safety net for those who truly need it. Nevertheless, it is not without its drawbacks and should be understood before using it. For example, “Medicaid Asset Recovery” is one drawback many are just now discovering as the program is expanding under Obamacare. So, what is “Medicaid Asset Recovery”? In layman’s terms: after you pass away the government can recoup the benefits you received from Medicaid by taking from your remaining assets, which usually means your house. The Washington Post recently touched upon the new anxiety about the Medicaid Estate Recovery program in an article titled “Little-known aspect of Medicaid now causing people to avoid coverage.” Bottom line: Medicaid Asset Recovery is an important reality for families to understand. Now, asset recovery has been a part of the Medicaid program for quite some time. It has been the means by which the government recoups costs for expensive Medicaid coverage for long-term care, at least when there was no surviving spouse or minor child involved. However, the law has expanded so states can recoup losses for any Medicaid benefits provided after age 55. Since it is “Medicaid” (a shared Federal-State program), states vary in their use and tolerance of the asset recovery procedure. Nevertheless, as a family member caring for an elderly loved one it does present a potential dilemma between receiving Medicaid benefits and keeping the house. If the house is actually a “home” with sentimental value to the family, or even if it is a valuable property worth bequeathing, then there are many factors to consider and maybe even more alternatives to explore. In the end, however, the care of an elderly loved one is never less important than their house or some of their other assets. On the other hand, this is a prime example of when your family should consult with an elder law attorney sooner to plan for the best financial and legal solution for your family later on.

Reference: The Washington Post (January 23, 2014) “Little-known aspect of Medicaid now causing people to avoid coverage”

For more information, see www.jerryreiflawyer.com

Medicaid – It Gives … And Now Takes Back Mid-Michigan

Medicaid is an important social safety net for those who truly need it. Nevertheless, it is not without its drawbacks and should be understood before using it. For example, “Medicaid Asset Recovery” is one drawback many are just now discovering as the program is expanding under Obamacare. So, what is “Medicaid Asset Recovery”? In layman’s terms: after you pass away the government can recoup the benefits you received from Medicaid by taking from your remaining assets, which usually means your house. The Washington Post recently touched upon the new anxiety about the Medicaid Estate Recovery program in an article titled “Little-known aspect of Medicaid now causing people to avoid coverage.” Bottom line: Medicaid Asset Recovery is an important reality for families to understand. Now, asset recovery has been a part of the Medicaid program for quite some time. It has been the means by which the government recoups costs for expensive Medicaid coverage for long-term care, at least when there was no surviving spouse or minor child involved. However, the law has expanded so states can recoup losses for any Medicaid benefits provided after age 55. Since it is “Medicaid” (a shared Federal-State program), states vary in their use and tolerance of the asset recovery procedure. Nevertheless, as a family member caring for an elderly loved one it does present a potential dilemma between receiving Medicaid benefits and keeping the house. If the house is actually a “home” with sentimental value to the family, or even if it is a valuable property worth bequeathing, then there are many factors to consider and maybe even more alternatives to explore. In the end, however, the care of an elderly loved one is never less important than their house or some of their other assets. On the other hand, this is a prime example of when your family should consult with an elder law attorney sooner to plan for the best financial and legal solution for your family later on.

Reference: The Washington Post (January 23, 2014) “Little-known aspect of Medicaid now causing people to avoid coverage”

For more information, see www.jerryreiflawyer.com

Of Family Gifts And Medicaid Lookback Rules Mid-Michigan

Medicaid has some very well-intentioned rules to stop people from taking advantage of the system. Many people set out intending to “beat the system.” It is called fraud. Unfortunately, sometimes the rules intended to stop outright fraud can get in the way of everyday families who want to play by the rules. The most common problem families run into is the so-called “lookback” period. You can easily run afoul of the 20/20 hindsight of Medicaid and thereby threaten the care your elderly loved one needs. This common conundrum of the lookback period was recently updated in a Q&A and supporting guide produced by ElderLawAnswers. In fact, the common question that sparked the post is the same as the title: “Should I Return Money My Mom Gave Me So She Isn't Penalized by Medicaid?” The lookback period, as some know all-too-well, is the period that Medicaid looks back through the finances and tax records of an applicant to ensure that they did not give away their assets to pass muster with the means-testing of the program. Of course, there are plenty of legitimate scenarios in which an individual would want to give away money or assets only to need Medicaid a few years thereafter. So, what happens when the tripwire is tripped and your loved one is Medicaid ineligible due to a previous gift made during the lookback period? This may vary from situation to situation (and state to state), but there are ways of undoing the gift and becoming Medicaid eligible. However, there are some potentially strange tax consequences. Then again, the heir who received the gift can always pay for the care until the loved one is eligible for benefits again. Right? In either event, the best solution would be to not create the problem in the first place. For information on the lookback and other eligibility problems to Medicaid, consult the master post on the subject (see “Medicaid's Asset Transfer Rules”). As always this is yet another example of situations that require the expertise of competent counsel before making a financial or legal move now (the gift) that can have serious financial or legal consequences later.

Reference: ElderLawAnswers (mod. January 3, 2014) “Should I Return Money My Mom Gave Me So She Isn't Penalized by Medicaid?”

ElderLawAnswers (mod. September 13, 2013) “Medicaid's Asset Transfer Rules”

For more information, www.jerryreiflawyer.com

Of Family Gifts And Medicaid Lookback Rules Saginaw, Michigan

Medicaid has some very well-intentioned rules to stop people from taking advantage of the system. Many people set out intending to “beat the system.” It is called fraud. Unfortunately, sometimes the rules intended to stop outright fraud can get in the way of everyday families who want to play by the rules. The most common problem families run into is the so-called “lookback” period. You can easily run afoul of the 20/20 hindsight of Medicaid and thereby threaten the care your elderly loved one needs. This common conundrum of the lookback period was recently updated in a Q&A and supporting guide produced by ElderLawAnswers. In fact, the common question that sparked the post is the same as the title: “Should I Return Money My Mom Gave Me So She Isn't Penalized by Medicaid?” The lookback period, as some know all-too-well, is the period that Medicaid looks back through the finances and tax records of an applicant to ensure that they did not give away their assets to pass muster with the means-testing of the program. Of course, there are plenty of legitimate scenarios in which an individual would want to give away money or assets only to need Medicaid a few years thereafter. So, what happens when the tripwire is tripped and your loved one is Medicaid ineligible due to a previous gift made during the lookback period? This may vary from situation to situation (and state to state), but there are ways of undoing the gift and becoming Medicaid eligible. However, there are some potentially strange tax consequences. Then again, the heir who received the gift can always pay for the care until the loved one is eligible for benefits again. Right? In either event, the best solution would be to not create the problem in the first place. For information on the lookback and other eligibility problems to Medicaid, consult the master post on the subject (see “Medicaid's Asset Transfer Rules”). As always this is yet another example of situations that require the expertise of competent counsel before making a financial or legal move now (the gift) that can have serious financial or legal consequences later.

Reference: ElderLawAnswers (mod. January 3, 2014) “Should I Return Money My Mom Gave Me So She Isn't Penalized by Medicaid?”

ElderLawAnswers (mod. September 13, 2013) “Medicaid's Asset Transfer Rules”

For more information, see www.jerryreiflawyer.com

Is A Prenup Right For You? Saginaw, MI

Prenuptial agreements – prenups – are a study in contrasts. On the one hand, you are pledging to love and care for your future spouse for life, for better or for worse, while on the other hand you are jotting out a kind of contingency plan. Face it: a prenup is not a romance enhancer. Still, especially with blending families, a prenup can be a prudent tool to maintain peace and domestic tranquility between the respective sides of the to-be-formed family. Love may be blind, but it is best to enter the marriage with both eyes open. Not surprisingly, the use of prenups is on the rise. For an interesting perspective on the prenup, consider a recently published article from Reuters called “Three things to consider before you ask for a pre-nup.” What exactly should you consider? Well for starters, every prenup represents the coming together of two very different and complex financial lives, two lives of separate assets and separate liabilities. Things can get complicated quickly. A prenup, however, offers both a way of seeing difficulties and of resolving them far in advance. Another interesting take-away from the article is that future inheritances ought to be addressed in the prenup, not just your current income and assets. How and when an inheritance may be received can be extremely important, especially when the inheritance may include important family assets, even ownership in a family business. Consequently, those planning for such “family assets” in their estates today already may be asking of their children to include these assets in the prenuptial agreement negotiations simply to protect the family. There is much to consider when it comes to planning a prenup, in addition to a wedding itself. If you are needing a little more encouragement, then a Forbes article titled “Why I Decided To Get A Prenup -- And So Should You” may help address some of your concerns.

Reference: Reuters (November 27, 2013) “Three things to consider before you ask for a pre-nup”

For more information. see www.jerryreiflawyer.com

 

Planning A Special Inheritance For A Special Beneficiary Mid-Michigan

We plan our estates to ensure our loved ones will be okay after we are gone. If a loved one has mental or physical special needs, then your estate planning needs some special planning itself. So what more should you do to ensure the happiness and wellbeing of your child with special needs? Special planning is, of course, very much tied to the needs of your child with special needs and to the needs of the rest of your family. As you might imagine, such planning entails important tools, rules and guides. To get started, consider a recent article in The Slott Report titled “3 Tips When Planning for a Special Needs Child.” One of the keys to special needs planning is understanding how public assistance aid works and its sources. Generally, the two major sources are Supplemental Security Income (SSI) and Medicaid. Both programs are “needs-based.” In other words, eligibility to receive benefits is all about qualifying financially, preserving that qualification, and ensuring a painless transition (read: not getting caught in bureaucracy). Tip #1: Consider implementing the all-important Supplemental Needs Trust. Properly drafted and funded, this is a special trust designed to offer security and care, without endangering needs-based program benefits. Tip #2: Plan ahead and plan carefully! These public assistance benefits may not be enough or offer as much security as you would want to ensure. In fact, you might want to find a way to leave more behind. Life insurance is an excellent option. Tip #3: What’s the final tip? You need to plan for yourself, too, and for your entire estate. As important as your loved one with special needs is, you have to ensure that the rest of your plans work together, too. For example, make sure to plan for threats to your own financial security, like high long-term care costs in old age. Without proper planning now, all could be lost later. In the end, if there is no security for you, then there may be no future security for your loved ones. The original article has a bit more to chew on, with some helpful pointers to get you moving in the right direction.

Reference: The Slott Report (November 20, 2013) “3 Tips When Planning for a Special Needs Child”

For more information, see www.jerryreiflawyer.com

Medicaid Dilemma – Sell Or Keep Your Home? Mid- Michigan

The move to a nursing home is a big step. It is a major life transition for all family members. Your loved one will no longer be living in their own comfortable and familiar home. In addition, there is the issue regarding whether to retain or keep the home given the unpleasant knowledge that the home may ultimately pay for nursing home care either way.

This dilemma was the focus of a recent Q&A in ElderLawAnswers via the question, “Is It Better to Sell a Medicaid Recipient's Home Now or Wait Until Her Death?”

Essentially, by receiving Medicaid you make certain agreements as to costs and, in the case of nursing home care, the deal often hinges on that most valuable of all assets an elderly person is likely to own: their home. True, it is possible to liquidate and sell the house just to pay for the nursing home care. Although this often reduces or eliminates the costs for maintaining and insuring an empty house, this also means giving up Medicaid benefits until the sale proceeds have been expended for care.

On the other hand, Medicaid will remember your choice whether you sell the home and private pay until spend down or if you to continue receiving benefits in lieu of such sale. If a family member attempts to sell the house after the Medicaid recipient loved one passes, then Medicaid has a lien on the sale proceeds (limited to the amount Medicaid paid for the care of the Medicaid recipient). Either way, the home is subject to pay for nursing home care or to reimburse Medicaid for the cost of care.

The answer to the question posed to ElderLawAnswers hinges on more than a few factors. That said, in most cases Medicaid payments will be less than private pay, sometimes a great deal less. Consequently, the resulting lien may be less of a burden than selling the house outright!

Is there something else at work, however? Notably, is the family home worth keeping in the family? These are situations that require some delicacy.

Reference: ElderLawAnswers (updated October 17, 2013) “Is It Better to Sell a Medicaid Recipient's Home Now or Wait Until Her Death?”

For more information, see www.jerryreiflawyer.com

 

Planning A Special Inheritance For A Special Beneficiary Saginaw, MI

We plan our estates to ensure our loved ones will be okay after we are gone. If a loved one has mental or physical special needs, then your estate planning needs some special planning itself. So what more should you do to ensure the happiness and wellbeing of your child with special needs? Special planning is, of course, very much tied to the needs of your child with special needs and to the needs of the rest of your family. As you might imagine, such planning entails important tools, rules and guides. To get started, consider a recent article in The Slott Report titled “3 Tips When Planning for a Special Needs Child.” One of the keys to special needs planning is understanding how public assistance aid works and its sources. Generally, the two major sources are Supplemental Security Income (SSI) and Medicaid. Both programs are “needs-based.” In other words, eligibility to receive benefits is all about qualifying financially, preserving that qualification, and ensuring a painless transition (read: not getting caught in bureaucracy). Tip #1: Consider implementing the all-important Supplemental Needs Trust. Properly drafted and funded, this is a special trust designed to offer security and care, without endangering needs-based program benefits. Tip #2: Plan ahead and plan carefully! These public assistance benefits may not be enough or offer as much security as you would want to ensure. In fact, you might want to find a way to leave more behind. Life insurance is an excellent option. Tip #3: What’s the final tip? You need to plan for yourself, too, and for your entire estate. As important as your loved one with special needs is, you have to ensure that the rest of your plans work together, too. For example, make sure to plan for threats to your own financial security, like high long-term care costs in old age. Without proper planning now, all could be lost later. In the end, if there is no security for you, then there may be no future security for your loved ones. The original article has a bit more to chew on, with some helpful pointers to get you moving in the right direction.

Reference: The Slott Report (November 20, 2013) “3 Tips When Planning for a Special Needs Child”

For more information, see www.jerryreiflawyer.com

Medicaid Dilemma – Sell Or Keep Your Home? Saginaw, MI

The move to a nursing home is a big step. It is a major life transition for all family members. Your loved one will no longer be living in their own comfortable and familiar home. In addition, there is the issue regarding whether to retain or keep the home given the unpleasant knowledge that the home may ultimately pay for nursing home care either way. This dilemma was the focus of a recent Q&A in ElderLawAnswers via the question, “Is It Better to Sell a Medicaid Recipient's Home Now or Wait Until Her Death?” Essentially, by receiving Medicaid you make certain agreements as to costs and, in the case of nursing home care, the deal often hinges on that most valuable of all assets an elderly person is likely to own: their home. True, it is possible to liquidate and sell the house just to pay for the nursing home care. Although this often reduces or eliminates the costs for maintaining and insuring an empty house, this also means giving up Medicaid benefits until the sale proceeds have been expended for care. On the other hand, Medicaid will remember your choice whether you sell the home and private pay until spend down or if you to continue receiving benefits in lieu of such sale. If a family member attempts to sell the house after the Medicaid recipient loved one passes, then Medicaid has a lien on the sale proceeds (limited to the amount Medicaid paid for the care of the Medicaid recipient). Either way, the home is subject to pay for nursing home care or to reimburse Medicaid for the cost of care. The answer to the question posed to ElderLawAnswers hinges on more than a few factors. That said, in most cases Medicaid payments will be less than private pay, sometimes a great deal less. Consequently, the resulting lien may be less of a burden than selling the house outright! Is there something else at work, however? Notably, is the family home worth keeping in the family? These are situations that require some delicacy.

Reference: ElderLawAnswers (updated October 17, 2013) “Is It Better to Sell a Medicaid Recipient's Home Now or Wait Until Her Death?”

For more information, see www.jerryreiflawyer.com

 

Medicaid Eligibility When The “Community Spouse” Dies First Mid-Michigan

When one member of an elderly couple moves to a nursing home, even as a Medicaid beneficiary, proper estate planning must be done for both spouses. Failure to plan for the “community spouse” can have unintended consequences. It is not uncommon. One spouse, the institutional spouse, is in a nursing home and is qualified to receive Medicaid benefits to pay for their care. The other spouse, the community spouse, remains at home. Typically, the institutional spouse dies first, but not always. The issues arising when the community spouse dies first was the subject of a recent article in ElderLawAnswer.com titled “Staying Eligible for Medicaid after the Death of a Spouse.” When one spouse passes away, especially the one not receiving benefits, it affects the surviving spouse in many financial ways that can jeopardize the very benefits keeping them in the nursing home and receiving the care they need.

Reference: ElderLawAnswer.com (October 2013) “Staying Eligible for Medicaid after the Death of a Spouse”

For more information, see www.jerryreiflawyer.com

 

 

Medicaid Eligibility When The “Community Spouse” Dies First Saginaw, MI

When one member of an elderly couple moves to a nursing home, even as a Medicaid beneficiary, proper estate planning must be done for both spouses. Failure to plan for the “community spouse” can have unintended consequences. It is not uncommon. One spouse, the institutional spouse, is in a nursing home and is qualified to receive Medicaid benefits to pay for their care. The other spouse, the community spouse, remains at home. Typically, the institutional spouse dies first, but not always. The issues arising when the community spouse dies first was the subject of a recent article in ElderLawAnswer.com titled “Staying Eligible for Medicaid after the Death of a Spouse.” When one spouse passes away, especially the one not receiving benefits, it affects the surviving spouse in many financial ways that can jeopardize the very benefits keeping them in the nursing home and receiving the care they need.

Reference: ElderLawAnswer.com (October 2013) “Staying Eligible for Medicaid after the Death of a Spouse”

For more information, see www.jerryreiflawyer.com

 

 

When It Is Time To Return Home From The Nursing Home Mid-Michigan

When an elderly loved one falls, or is otherwise injured, it can spark a few rough transitions: car from home to hospital for care, and from hospital to nursing home to recover. However, one of the most difficult transitions can be returning home from the nursing home, even after your elderly loved one no longer needs to be there. Every state is different, but most states sponsor a special Medicaid program paid for by federal dollars that allows a senior to transition all the way back home to receive their care there. The program is called Money Follows the Person. For a firsthand account, read a recent Kaiser Health News article titled “Moving People Home After Nursing Home Stay Is Complicated.” It is the story of Dorothy Holmes who was able to return to her home with the help of Massachusetts Medicaid. Although the Holmes story and the details of the program highlighted are specific to Massachusetts, some 45 states have adopted similar such programs. The common key is that the programs identify Medicaid patients who are and have been in nursing homes for at least 90 days, but simply no longer need to be there. Consequently, these programs help them transition home and continue the Medicaid payments for their care. Not only is there a strong legal reason and ethical motive behind helping people return home, but it makes good sense in terms of dollars and cents, too. It is less expensive to provide home care than it is institutional care. Therefore, the program is a win-win for all involved. If you have a loved one in this position, then it is worth exploring your options. Transitioning home from a nursing home can be tricky, especially since you do not want to lose the nursing home benefits just because you do not need to be in a nursing home setting. This program, if available, may find your loved one on its own or it might be something to proactively contact directly. For that matter, too, it is worth noting that there may be other options for many patients. In many instances it is merely a matter of finding and figuring them out.

Reference: The Kaiser Health News (August 16, 2013) “Moving People Home After Nursing Home Stay Is Complicated”

For more information, see www.jerryreiflawyer.com

 

 

 

When It Is Time To Return Home From The Nursing Home

When an elderly loved one falls, or is otherwise injured, it can spark a few rough transitions: car from home to hospital for care, and from hospital to nursing home to recover. However, one of the most difficult transitions can be returning home from the nursing home, even after your elderly loved one no longer needs to be there. Every state is different, but most states sponsor a special Medicaid program paid for by federal dollars that allows a senior to transition all the way back home to receive their care there. The program is called Money Follows the Person. For a firsthand account, read a recent Kaiser Health News article titled “Moving People Home After Nursing Home Stay Is Complicated.” It is the story of Dorothy Holmes who was able to return to her home with the help of Massachusetts Medicaid. Although the Holmes story and the details of the program highlighted are specific to Massachusetts, some 45 states have adopted similar such programs. The common key is that the programs identify Medicaid patients who are and have been in nursing homes for at least 90 days, but simply no longer need to be there. Consequently, these programs help them transition home and continue the Medicaid payments for their care. Not only is there a strong legal reason and ethical motive behind helping people return home, but it makes good sense in terms of dollars and cents, too. It is less expensive to provide home care than it is institutional care. Therefore, the program is a win-win for all involved. If you have a loved one in this position, then it is worth exploring your options. Transitioning home from a nursing home can be tricky, especially since you do not want to lose the nursing home benefits just because you do not need to be in a nursing home setting. This program, if available, may find your loved one on its own or it might be something to proactively contact directly. For that matter, too, it is worth noting that there may be other options for many patients. In many instances it is merely a matter of finding and figuring them out.

Reference: The Kaiser Health News (August 16, 2013) “Moving People Home After Nursing Home Stay Is Complicated”

For more information, see www.jerryreiflawyer.com

 

 

Promissory Notes and Medicaid Qualification Saginaw, MI

Medicaid can mean a world of difference when it comes to ensuring proper care for your elderly loved ones, especially when they are running out of assets. When their major remaining “countable” asset is an illiquid asset, what are their options short of depleting it or risking a fraudulent transfer? As you may well know, Medicaid is the source of nursing home care for many indigent Americans. Still others are caught in a netherworld of being above the minimum asset threshold for qualification, but having too few assets to realistically pay for their care. It’s a sticky situation. A promissory note may be one alternative to explore, as noted in a recent article at ElderLawAnswers.com titled “How Can Promissory Notes Be Used in Medicaid Planning?” The focus of the article is a recent federal case out of Oklahoma, but the basics apply generally. Essentially, an elderly woman transferred her farm and accounts to her son in exchange for a promissory note. A note is a legally binding contract to repay as fixed sum and so it clears the Medicaid hurdle in question. In this instance, this approach indeed saved the farm and the elderly woman received her nursing home care through Medicaid. Nevertheless, a promissory note is not a full-proof plan. For one, many states reject the idea and refuse to recognize promissory notes. For another, the plan can only work because promissory notes are legally binding contracts, and so if the note cannot be repaid there are potential tax burdens that may be triggered. The article also points out there are several tools, like the promissory note, that can prove useful when seeking legitimate Medicaid qualification. This especially is true if you plan well in advance. Danger! The Medicaid qualification rules vary from state to state. This is not a self-help project, as you may find yourself (and your elderly loved one) in a tricky financial and legal purgatory if you make any missteps.

Reference: ElderLawAnswers (May 15, 2013) “How Can Promissory Notes Be Used in Medicaid Planning?”

For more information, see www.jerryreiflawyer.com

 

Joint Tenancy Transfers Matter For Medicaid Eligibility

American law contains a principle that runs like a thread through very fabric of our jurisprudence – one is “innocent until proven guilty.” In other words, the law begins with the premise that one accused of wrongful conduct or motives, whether in a civil or a criminal context, is first given the benefit of the doubt until established otherwise by competent evidence to the contrary. Nonetheless, sometimes the tax courts, in their zeal to root out cheats, end up reversing that principle and end up turning on those vulnerable people who act only in the best of intentions: sometimes the elderly are “guilty until proven innocent” when it comes to the courts and Medicare disqualification. Consider the case of Mallery v. Shah (N.Y. Sup. Ct., App. Div., 3rd Dept., No. 513277, Mar. 1, 2012), as written about here in a recent post over at ElderLawAnswers. Here’s the deal: Paula Mallery wanted to be sure she had safely left her estate to her friend, Ron Stanton, and a moderate estate at that, without her family interceding and dragging the matter into the probate court following her death. Her reasons are her own (but you can appreciate anyone wanting to avoid a public bloodbath). It was something she thought about, even sought counsel for, and ultimately effected by adding Mr. Stanton as joint-tenant on her home and bank accounts. Mr. Stanton withdrew $141,410.12 between 2007 and 2008. Then, in 2009, when Ms. Mallery fell, required nursing home care, and ended up applying to Medicaid to pay for it. No, no, no. That was Medicaid’s response. Why? Medicaid maintained that Ms. Mallery had effectively made “uncompensated transfers” and was therefore subject to a 19 month penalty period (and more than a year and a half of such care is expensive!). To assume the absolute best of Ms. Mallory and her motivations – because it wouldn’t change the decision either way – she simply intended to pass her property quietly to Mr. Stanton, but ended up getting dragged into court. She appealed the decision and was ultimately rejected on the grounds that she never disproved the allegation her planning moves were motivated with an eye toward Medicaid qualification. It’s yet another harsh lesson in unintended consequences and the trials of qualifying for Medicare. In the end, planning for your assets after death must always also be about planning for those assets, and your medical care, throughout the remainder of your life.

Reference: ElderLawAnswers.com (March 5, 2012) “Estate Planning Move to Avoid Probate Earns Medicaid Applicant Penalty Period”

Medicaid Misunderstandings Costly

When an elderly person is ready for the nursing home, some families are entirely understanding, in agreement, and financially able. As a result, the transition happens smoothly. Unfortunately, for a far larger number of families and elderly persons, some trip to the hospital will happen in between and may even immediately precipitate the transition to nursing home care. If that’s the case, then there are important hospital and Medicare policies of which you should be forewarned. Enter “observation care” which can make for a big bill upfront and even far bigger ones down the line. According to a recent article in the Wall Street Journal, and their sources at the Medicare Rights Foundation, the number of “observation hours” has been steadily growing for years. Tragically, such observation hours count as “outpatient services,” even if the service lasts for several days (as it sometimes does with the elderly) and Medicare pays for inpatient and outpatients services in entirely different ways. As you likely know, Medicare Part A pays for inpatient bills, so those are usually taken care of, but Medicare part B is what takes care of outpatient services. And those services can add up to a far greater cost. It’s often vital to know the distinction between the two types of services from the hospital, and yet it’s also fairly difficult. Medicare advises to simply ask, but then there are certain documents such as the “Important Message from Medicare” which accompanies inpatient care, but not outpatient. Still, the hospital can switch with little to no notice. It’s actually even more important than the size of the immediate bill. Medicare will only pay for nursing home expenses if the person was admitted inpatient at a hospital for at least three days, excluding the discharge day. For so many families that’s the sole reason why it takes a hospital visit to arrange for the transition to nursing home care in the first place, but if you are put under observation or other so-called “outpatient” care, and without your notice, it can literally mean thousands of dollars out-of-pocket down the line. Bottom line: It all hinges on hospital practice and Medicare definitions.

Reference: The Wall Street Journal (February 5, 2012) “Check Hospital Tab”

Married Couples and Long-Term Care Logistics

Marriage is a unique economic and legal institution. Indeed, when it works out, marriage also means a happy lifetime of living with another. Of course, because life lasts longer and health wanes differently between persons, those unique economic and legal parts to marriage can translate into difficult times later in life. Against the backdrop of the in sickness portion of the vows, one difficulty that arises was addressed recently in a Wall Street Journal article titled Long-Term Care and Couples: Who Pays?. That difficulty is the phenomenon of the “well spouse,” the “ill spouse,” and Medicaid. Practically speaking, if one spouse becomes chronically sick and needs long-term care, will the other spouse be driven into poverty? Marital assets, whether owned by the husband or the wife, are part of the equation when it comes to determining Medicaid eligibility. Medicaid is the joint federal/state government program to provide means-tested health care assistance to those who qualify. With both federal and state coffers bleeding red ink (with a few state exceptions), Medicaid money is tight, especially in terms of long-term care coverage -- whether married or single. As the Wall Street Journal article notes, however, some states are treating the “well spouses” more generously than others regarding how much wealth they may retain while the “sick spouses” are receiving taxpayer support through Medicaid. I recommend reading the original article. Also, consider purchasing long-term care insurance so Medicaid does not become part of your future. In any event, a consultation with a qualified Elder Law Attorney would be prudent to evaluate your options.

Reference: The Wall Street Journal (April 2, 2012) “Long-Term Care and Couples: Who Pays?”

Joint Tenancy Transfers Matter For Medicaid Eligibility

American law contains a principle that runs like a thread through very fabric of our jurisprudence – one is “innocent until proven guilty.” In other words, the law begins with the premise that one accused of wrongful conduct or motives, whether in a civil or a criminal context, is first given the benefit of the doubt until established otherwise by competent evidence to the contrary. Nonetheless, sometimes the tax courts, in their zeal to root out cheats, end up reversing that principle and end up turning on those vulnerable people who act only in the best of intentions: sometimes the elderly are “guilty until proven innocent” when it comes to the courts and Medicare disqualification. Consider the case of Mallery v. Shah (N.Y. Sup. Ct., App. Div., 3rd Dept., No. 513277, Mar. 1, 2012), as written about here in a recent post over at ElderLawAnswers. Here’s the deal: Paula Mallery wanted to be sure she had safely left her estate to her friend, Ron Stanton, and a moderate estate at that, without her family interceding and dragging the matter into the probate court following her death. Her reasons are her own (but you can appreciate anyone wanting to avoid a public bloodbath). It was something she thought about, even sought counsel for, and ultimately effected by adding Mr. Stanton as joint-tenant on her home and bank accounts. Mr. Stanton withdrew $141,410.12 between 2007 and 2008. Then, in 2009, when Ms. Mallery fell, required nursing home care, and ended up applying to Medicaid to pay for it. No, no, no. That was Medicaid’s response. Why? Medicaid maintained that Ms. Mallery had effectively made “uncompensated transfers” and was therefore subject to a 19 month penalty period (and more than a year and a half of such care is expensive!). To assume the absolute best of Ms. Mallory and her motivations – because it wouldn’t change the decision either way – she simply intended to pass her property quietly to Mr. Stanton, but ended up getting dragged into court. She appealed the decision and was ultimately rejected on the grounds that she never disproved the allegation her planning moves were motivated with an eye toward Medicaid qualification. It’s yet another harsh lesson in unintended consequences and the trials of qualifying for Medicare. In the end, planning for your assets after death must always also be about planning for those assets, and your medical care, throughout the remainder of your life.

Reference: ElderLawAnswers.com (March 5, 2012) “Estate Planning Move to Avoid Probate Earns Medicaid Applicant Penalty Period”

 

Joint Tenancy Transfers Matter For Medicaid Eligibility

American law contains a principle that runs like a thread through very fabric of our jurisprudence – one is “innocent until proven guilty.” In other words, the law begins with the premise that one accused of wrongful conduct or motives, whether in a civil or a criminal context, is first given the benefit of the doubt until established otherwise by competent evidence to the contrary. Nonetheless, sometimes the tax courts, in their zeal to root out cheats, end up reversing that principle and end up turning on those vulnerable people who act only in the best of intentions: sometimes the elderly are “guilty until proven innocent” when it comes to the courts and Medicare disqualification. Consider the case of Mallery v. Shah (N.Y. Sup. Ct., App. Div., 3rd Dept., No. 513277, Mar. 1, 2012), as written about here in a recent post over at ElderLawAnswers. Here’s the deal: Paula Mallery wanted to be sure she had safely left her estate to her friend, Ron Stanton, and a moderate estate at that, without her family interceding and dragging the matter into the probate court following her death. Her reasons are her own (but you can appreciate anyone wanting to avoid a public bloodbath). It was something she thought about, even sought counsel for, and ultimately effected by adding Mr. Stanton as joint-tenant on her home and bank accounts. Mr. Stanton withdrew $141,410.12 between 2007 and 2008. Then, in 2009, when Ms. Mallery fell, required nursing home care, and ended up applying to Medicaid to pay for it. No, no, no. That was Medicaid’s response. Why? Medicaid maintained that Ms. Mallery had effectively made “uncompensated transfers” and was therefore subject to a 19 month penalty period (and more than a year and a half of such care is expensive!). To assume the absolute best of Ms. Mallory and her motivations – because it wouldn’t change the decision either way – she simply intended to pass her property quietly to Mr. Stanton, but ended up getting dragged into court. She appealed the decision and was ultimately rejected on the grounds that she never disproved the allegation her planning moves were motivated with an eye toward Medicaid qualification. It’s yet another harsh lesson in unintended consequences and the trials of qualifying for Medicare. In the end, planning for your assets after death must always also be about planning for those assets, and your medical care, throughout the remainder of your life.

Reference: ElderLawAnswers.com (March 5, 2012) “Estate Planning Move to Avoid Probate Earns Medicaid Applicant Penalty Period”

Medigap Policies Catch (Unfavorable) Attention of Congress

Are you (or a loved one) a Medicare beneficiary? If yes, then likely you already know that it doesn’t always cover all the costs in a time of crisis. That’s why there are Medigap policies. Unfortunately, Medigap policies might just be the next thing to get Congress’s unwanted attentions according to a recent article through the Kaiser Health News. A Medigap policy is actually a private, supplemental form of insurance to cover medical bills Medicare doesn’t cover. Medigap is especially important in a crisis, since it can kick in for hospital visits that otherwise would go uncovered. Accordingly, this can prevent a financial crisis on top of a medical one. If nothing else, a good Medigap policy offers a bit more peace of mind. The problem some are citing against Medigap policies, from a budget perspective, is that they offer too much peace of mind and allow beneficiaries to seek medical care even when it’s not absolutely necessary. As a result, this puts a strain on Medicare itself. So, does the argument bear any weight? It’s hard to say, and it’s certainly hard to quantify. In addition, it’s difficult to make sense of the social safety net (Medicare) – or a private supplement to it (Medigap) – that doesn’t offer some peace of mind. Whatever may come from it, if it touches you (or your loved ones), its worth keeping up with potential Congressional scrutiny. The original article offers the recent history of Medigap policies and the attitude of Congress regarding them.

Reference: The Kaiser Health News (November 21, 2011) “Officials Looking to Cut Federal Spending Eye Medigap Policies”

Special Needs Planning – A Changing Landscape

Estate planning is never easy, if only because it means thinking about protecting your loved ones when you’re no longer around. It’s bad enough making plans to protect self-sufficient heirs who take care of themselves and an inheritance. However, it can be a real challenge when planning for heirs with special needs for a variety of personal and legal reasons. Unfortunately, as The Wall Street Journal Online recently pointed out, with the economy and politics as they are, there are new concerns to bear in mind as you plan. Both the State and federal budgets are strapped for cash and the burden is falling on Medicare and Medicaid. It’s up to the Congressional Special Committee to consider the future of Medicare now, but many Medicaid programs already are feeling the squeeze with tighter income restrictions for benefits and services. Of course, much of the disabled population (12% of the overall population) relies on state and federal services for those services that they couldn’t afford in the private market. To plan for an heir with special needs, then, means planning to provide for them without risking their main sources of care. Now, more than ever, that means a “special needs trust,” tailored to provide the inheritance as a safety net without endangering the continuation of benefits. [Sidebar: Sometimes an older parent can make this move kill two birds with one stone. How? They create the trust now for themselves and a loved one with special needs so that both qualify for government benefits, once the “look back” period has past for eligibility disqualification. As budgets get tighter, expect greater governmental scrutiny of such moves.] The other major issue, and a related one, is housing. Many Americans with special needs live in group housing programs. These programs are, in turn, subsidized by government agencies, but are increasingly unable to meet demand and are cash-strapped. For one, the same political/economic pressure is keeping those agencies from expanding. At the same time, there simply are more prospective residents due to lengthening life expectancies. The US would have had to expand its residential-services capacity by 28% to meet the demand as of two years ago. Clearly, housing has been an issue and it will only get worse. Amidst all of this uncertainty, you still need to plan where your loved one will live. This might mean another form of trust. For example, a “Qualified Personal Residence Trust” (QPRT) would provide that you live in your home until your death, but that your family member with special needs would live there (without disqualifying ownership). Great care would need to be given in the preparation of such an arrangement. Also, it may be possible to provide a home to shelter several persons with special needs. For example, say several families pool resources, or even to leave a home to a non-profit that can convert the home into a new group home. The options are limited by your creativity. Ultimately, the best plan will depend on your own unique family circumstances, as well as the current state and federal laws governing benefits and services. Unfortunately, according to a recent study by Arc, an advocacy group, only one-third of affected actually has plans to control what happens when the caregiver grows old and after they are gone. Bottom line: Remember to engage qualified legal counsel to help you navigate the regulatory minefields.

Reference: The Wall Street Journal Online (September 3, 2011) “Taking Care of Disabled Heirs”

More Medicaid Asset Transfer Travails

Oftentimes, Medicaid and Medicare can be entirely necessary programs. They also can be pretty tricky to navigate, especially if you, or a loved one, fall just above the income limits. That said, Medicare and Medicaid don’t like it when they feel you are “gaming” the system. Elder Law Answers highlights yet another case in which an elderly person was denied benefits because of improper planning. The case in question is Hedlund v. Wisconsin Dept. of Health Services (Wis. Ct. App., No. 2010AP3070, Oct. 13, 2011). Lucille Hedlund was a Medicaid applicant who was denied benefits because she also was a beneficiary to an irrevocable trust that qualifies as an available asset, bringing her above the income threshold. It didn’t matter that the trust has been set up 17 years ago, especially because of the circumstances. Mrs. Hedlund transferred all of her assets to her children in June 1991, with the exception of a checking account. And, on the very same day, her children put those very same assets into an irrevocable trust and named her as beneficiary. While this was pretty sneaky, it was not enough to give Medicaid the slip. Medicaid ruled that there was reason to infer that Mrs. Hedlund had directed her children to create and fund the irrevocable trust because the plan was effected on the same day. Note: It didn’t even matter that the assets weren’t hers at the time the trust was created, since they were still “available assets” in the eyes of the court … some 17 years later when Mrs. Hedlund entered a nursing home in 2008. Applications for Medicare and Medicaid are important and should not be taken lightly. If you, or a loved one, need to make plans for long-term care, then you need to seek competent legal counsel before you apply.

Reference: Elder Law Answers (October 14, 2011) “Irrevocable Trust Set Up by Medicaid Applicant’s Children is Available Asset”

No “CLASS” Today (Or Tomorrow)

After much speculation, the Department of Health and Human Services (HHS) has pulled the plug on the CLASS part of the health law. As a recent Reuters article points out, this brings to the fore the question of long-term care insurance, both as it impacts the United States in general and each of us in particular, as potential patients in need of such care. The CLASS act was the first attempt at establishing a public option for long-term care insurance and that put it between the proverbial rock and a hard place. The late Senator Kennedy championed the cause. Politics aside, what torpedoed the CLASS act? Money. According to HHS, the program would prove too costly to achieve its goal. Why? Too few healthy people would elect to pay the required premiums. But what now? The Center for Retirement Research at Boston College notes that about one-third of the Americans turning 65 this year will need at least three months of nursing home care sometime during their lives. Presumably, however, many of these same Americans will need such care even longer (and future generations can’t be expected to fare much better). So, how we deal with long-term care as a country is yet to be seen. Regardless, since you or a loved one will likely need long-term care, the question remains: How will you pay for it? An increasing number of forward-thinking people are turning to private long-term care insurance, but as many as 59% have yet to get their own private long-term care insurance policy or plan to get it (according to a 2010 survey). Is private long-term care insurance right for you or a loved one? For many who wait too long pondering this question, their default option is the more complicated question of Medicare and Medicaid. Undoubtedly, Medicaid (the means-tested shared federal-state program) is the largest source of long-term care financing. However, last time I checked, the federal government was not exactly flush with cash and many states are operating in the red. In the end, whatever you decide to do when it comes to paying for long-term care, the best time to make plans is yesterday. Whatever you do, be sure to seek appropriate legal counsel.

Reference: Reuters (October 17, 2011) “What’s next for long-term care after CLASS act folds?”

Special Needs Planning – A Changing Landscape

Estate planning is never easy, if only because it means thinking about protecting your loved ones when you’re no longer around. It’s bad enough making plans to protect self-sufficient heirs who take care of themselves and an inheritance. However, it can be a real challenge when planning for heirs with special needs for a variety of personal and legal reasons. Unfortunately, as The Wall Street Journal Online recently pointed out, with the economy and politics as they are, there are new concerns to bear in mind as you plan. Both the State and federal budgets are strapped for cash and the burden is falling on Medicare and Medicaid. It’s up to the Congressional Special Committee to consider the future of Medicare now, but many Medicaid programs already are feeling the squeeze with tighter income restrictions for benefits and services. Of course, much of the disabled population (12% of the overall population) relies on state and federal services for those services that they couldn’t afford in the private market. To plan for an heir with special needs, then, means planning to provide for them without risking their main sources of care. Now, more than ever, that means a “special needs trust,” tailored to provide the inheritance as a safety net without endangering the continuation of benefits. [Sidebar: Sometimes an older parent can make this move kill two birds with one stone. How? They create the trust now for themselves and a loved one with special needs so that both qualify for government benefits, once the “look back” period has past for eligibility disqualification. As budgets get tighter, expect greater governmental scrutiny of such moves.] The other major issue, and a related one, is housing. Many Americans with special needs live in group housing programs. These programs are, in turn, subsidized by government agencies, but are increasingly unable to meet demand and are cash-strapped. For one, the same political/economic pressure is keeping those agencies from expanding. At the same time, there simply are more prospective residents due to lengthening life expectancies. The US would have had to expand its residential-services capacity by 28% to meet the demand as of two years ago. Clearly, housing has been an issue and it will only get worse. Amidst all of this uncertainty, you still need to plan where your loved one will live. This might mean another form of trust. For example, a “Qualified Personal Residence Trust” (QPRT) would provide that you live in your home until your death, but that your family member with special needs would live there (without disqualifying ownership). Great care would need to be given in the preparation of such an arrangement. Also, it may be possible to provide a home to shelter several persons with special needs. For example, say several families pool resources, or even to leave a home to a non-profit that can convert the home into a new group home. The options are limited by your creativity. Ultimately, the best plan will depend on your own unique family circumstances, as well as the current state and federal laws governing benefits and services. Unfortunately, according to a recent study by Arc, an advocacy group, only one-third of affected actually has plans to control what happens when the caregiver grows old and after they are gone. Bottom line: Remember to engage qualified legal counsel to help you navigate the regulatory minefields.

Reference: The Wall Street Journal Online (September 3, 2011) “Taking Care of Disabled Heirs”

Medicare Advantage Maze

Did you know Medicare’s annual election period is just around the corner, October 15 through December 7, to be precise? Now is the time to evaluate your options. Should you stick with your current plan, or is it time to make a change? Would you be better off using Medicare classic or is a Medicare Advantage Plan the e-ticket? This is not planning that you should take lightly, especially when it comes to Medicare Advantage plans. According to a recent article on MarketWatch many seniors simply end up paying too much. Why? Because they either didn’t take the time to evaluate their options, or they didn’t understand the consequences of their decision. About 1 in 4 of all Medicare recipients is signed up through a Medicare Advantage plan – about 11.7 million Americans – and for good reason. Under the right circumstances a Medicare Advantage plan can be much cheaper than pairing Medicare classic with Medigap and prescription drug plans. You just have to choose wisely. Plans vary in many ways, some great and some small, and, without realizing it, you could choose a plan that makes your prescriptions cost several times what another plan would offer. The MarketWatch article’s most telling example is that “people in one Georgia zip code who take 70 mg tablets of osteoporosis drug Fosamax once daily may have annual expenses ranging from $2,661 to $9,032 — depending on which Medicare Advantage plan they pick.” I can understand and appreciate that it’s easy to get confused. You can easily suffer option overload, especially for the 25% of the nation that has 30 or more plan options. To narrow things down, keep a few things in mind. First, how important is your doctor to you? Advantage plans don’t let you choose your doctor. Why? They work as managed-care policies, either health maintenance organizations (HMOs) or preferred provider organizations (PPOs), and specify the networks. So, if you like your own doctor, then you might consider only those plans where your doctor is within the plan network. Realize, however, that keeping your own doctor may come at a price. When it comes to cost, the second and most important detail after choice of doctor, you want to keep updated and run the numbers every year. Plans can change every year by tweaking co-payments here or altering premiums there, not to mention the fact that you might find yourself taking new prescriptions year to year. You need to examine all the changes and actual prices for your prescriptions to get a true picture of your true costs. By the way, when comparing costs, the Medicare website can be helpful with its plan finder tool. Atlernatively, you also can consult experts like those at the Medicare Rights Center or a local organization.

Reference: MarketWatch (September 2, 2011) “Got Medicare? You May Be Paying Too Much”

ELDER LAW

After four years or so the housing market is still idling at terribly low levels, but even if we’re all feeling it, it’s our nation’s seniors that seem to be uniquely hurt. The problem has been growing over those years, and I’ve written about it here, but the Kaiser Health News recently put out an article taking stock of the situation and new reactions from assisted-living and nursing home facilities. With housing prices and market demand so low, seniors simply can’t get up and enter into a facility, even if they need it. For many seniors, the plan had always been to use the equity in their home as the investment to keep them afloat in retirement but the value in those homes simply dropped in 2008. Even if you can forget how much the house was worth in 2007, before the crash, it’s simply not easy to sell a house these days and they tend to just sit on the market for years, or fetch too little money to make the sale possible. It’s causing seniors to wait that much longer before they can enter into a facility, and that’s time on top of however long it took them to finally make the decision to give up the home in the first place. It isn’t good for finances, and it is especially bad for health. The facilities themselves aren’t happy with the trend and some are working to help ease the transition. In certain facilities across the parts of the country that were hit hardest by the housing bubble the occupancy rate has dropped as much as 10%, with nursing homes and continuing care facilities hit the hardest and assisted-living only slightly better. In response, some of those facilities have begun incentive programs from simple real estate education classes to more fluid contracts that allow the entrance costs of the facility (usually something like the cost of a home itself) to be paid whenever the house is sold. One management company, Brookdale Senior Living, has even begun offering to buy seniors’ houses at pre-determined prices if they do not sell within a set amount of time on the market. For you or a loved one it means that there are a number of possibilities to plan for. Those that can’t quite get out of their homes might consider bringing the care to them through in-home care services or perhaps living with loved ones. Still, if a facility is necessary then there may be options out there, depending on the facility and your part of the country, and it might be possible to work with the administration; chances are you’re not the only one with the problem and they may offer a solution.

Reference:  Kaiser Health News (August 21, 2011) “Housing Bust Derails Some Seniors’ Assisted-Living Care”

Understanding “Medicare” Programs

It’s no secret that Medicare is a difficult system to understand. Unfortunately, it’s a fact of life for our nation’s seniors. As a result, Medicare is something we have to work to understand. For many of us, though, there is at least one more resource available to many of us, according to a recent article by SmartMoney. The problem with so many Medicare informational resources is that you have to read through tomes of legalese, sift through graphs and charts, and, in the end, you still haven’t figured out the answer to your question. Good news: A new program called “Seniors Out Speaking,” or SOS, is a peer-advice program through which volunteer seniors teach other senior about Medicare. It’s a program of the Medicare Rights Center, and it’s currently operating (or starting up) in New York, Kansas, Maryland and New Jersey, Alabama, Florida, Maine and Wisconsin. Although SOS currently doesn’t exist everywhere, the Center hopes to expand its support. The Center believes the program can be easily replicated in communities across the country. As a result, a generation hitting retirement all at once will be able to help each other through it. Think baby boomers. If SOS exists in your area, it might be worth looking into as a listener or as a teacher. There also may be similar programs in your community. On the other hand, you may want to start a program in your own community. More information on Medicare itself can be found on the Medicare Rights Center website. Also, it might be worth looking into your local community events calendar to see if there are any seminars or programs in your area.

Reference: SmartMoney (August 29, 2011) “Medicare, Now Less Complicated”

Elder Law – Promissory Notes May Not Be So Promising

As some of you may know, the guidelines surrounding eligibility for Medicare or Medicaid can be fairly rigid. They exist to ensure people aren’t gaming the program, but sometimes even who aren’t gaming the program (and have legitimate need) can unintentionally run afoul of the rules. For another example of what not to do, ElderLawAnswers recently analyzed the case of Jackson v. Director of Office of Medicaid (Mass. App. Ct., No. 10P706, July 19, 2011). When Raymond Duclos was entering a nursing home, his wife was making transfers to their children: $176,000 to their daughter, Susan; $11,787.83 to their son, Raymond, Jr.; and $3,000 to their other son, Michael. No good story about Medicare/Medicaid eligibility begins with the word, “transfer.” Why? Because of the look-back period for determining eligibility. In the case of the Duclos family, as opposed to these direct transfers being made without any value exchanged in return, each transfer was made in exchange for promissory notes. In fact, the largest note was an immediate annuity. Nevertheless, in the end this was considered a distinction without a difference. The state (Massachusetts) denied the claim and the appeals court upheld the state’s decision. The court’s basis: Those promissory notes weren’t “actuarially sound.” For one thing, there was no proof of Mrs. Duclos life expectancy at the time she transferred the assets and the smaller promissory notes from the sons did not prohibit cancellation at the death of the lender. This “cancellation” made the transaction appear as if there was little intention of actually fulfilling the notes. Furthermore, the larger note from the daughter was turned into an annuity, but it did not name the state as a “remainder” beneficiary. Each transfer, then, was a disqualifying one.

Reference: ElderLawAnswers.com (August 1, 2011) “Transfers to Children of Medicaid Applicant in Exchange for Promissory Notes Not Actuarially Sound”

Be Sure Your Life Insurance Is “Life Insurance”

Not all life insurance is the same, and that’s not just an old sales trick to up-sell a client. In the eyes of Medicare and Medicaid, not all life insurance actually is “life insurance” – and that can be a reason to deny benefits. Consider the case of Lind v. Maxwell-Jolly (Cal. Ct. App., No. C061912, July 28, 2012) (unpublished), as discussed here on ElderLawAnswers.com, where an endowment life insurance contract became an impediment to Medicaid benefits. Mary Lind, a nursing home resident, applied for Medicaid benefits and then purchased a "Single Premium Pure Endowment Life Insurance Contract" for $92,000. Here’s how the contract works: If she were still alive at the contract maturity date five years hence, then Ms. Lind would be repaid her premiums plus dividends. Of course, the state and two appeals courts weren’t buying it. Since the contract specifies that it will repay Ms. Lind in her lifetime, it is not life insurance. Further, the contact didn’t even specify the amounts to be paid out to beneficiaries upon her death. Accordingly, the court held that the contract is more akin to a legal trust and, therefore, the funds invested in it are available funds precluding her from Medicaid. Clearly, then, not all “life insurance” is life insurance. As in all things financial, and legal, look before you leap.

Reference: ElderLawAnswers.com (August 1, 2011) “Endowment Life Insurance Contract Is Available Asset for Medicaid Availability Purposes”

Debt Deal: Not (Really) A Done Deal

I suppose it goes without saying that the past few weeks have been a rather tumultuous time, and especially so for America’s seniors. It’s quickly proving to be a vital time to take stock of the situation and prepare. Luckily, the news is awash with important reminders and advice about what’s at stake. First, the debt deal was finally passed. As I mentioned last week, it’s already been called a mixed bag by AARP, but the bad may outweigh the good and there are specific changes to watch with interest. Robert Powell of MarketWatch has put together another resource detailing what you ought to know with a special emphasis on budget cuts on programs (both the $1 trillion already going into affect and future cuts to Medicare), along with interest rates and taxes. Immediately following on the heels of the debt deal, however, the S&P downgraded the U.S. and forced a rather volatile “market correction.” As SmartMoney points out in this article, it’s like 2008 all over again, because it’s the baby-boomers who have the most to lose and must taken action to engage strategies to protect their nest egg if market forces continue to threaten it. And, finally, there’s looking to the future… the future of rehashing the past few months and the debt debate. The deal that was reached calls for the commission of a super committee to make more suggestions for cutting the debt. That means Medicare and Social Security might not remain safe, since the debate isn’t actually over. Indeed, if the committee’s suggestions are not implemented, then immediate spending cuts to Medicare will go into affect by Christmas. Reuter’s, for one, thinks there’s reason enough to be wary of the super committee altogether, especially if you’re concerned about retirement. In fact, they’ve found eight reasons to worry.

Reference: MarketWatch (August 4, 2011) “How the Debt Deal Will Affect Retirees”

                  SmartMoney (August 8, 2011) “The 2011 Correction: Another Bad Turn for Boomers.”

                  Reuters Money (August 5, 2011) “8 ways the super committee is not super for retirement”

ELDER LAW / MEDICAID ELIGIBILITY

Here’s another important reminder on how much of a stickler Medicare and Medicaid can be when it comes to denying benefits: the Matter of Komanoff Ctr. for Geriatric & Rehabilitative Medicine v Daines (N.Y. Sup. Ct., App. Div., 2nd Dept., No. 2010-05776, June 28, 2011) (here summarized on ElderLawAnswers.com.) It’s the case of Bernadette Jordan and how she entered a nursing home and filed for Medicaid only to find that the State ruled her ineligible for a period of 14.31 months. Apparently, Mrs. Jordan had transferred funds from a revocable trust to her daughter, to repay expenses that her daughter had shouldered in getting her to the nursing home. States are skeptical of such transfers, and often examine them carefully. In this case they found that the transfers were made at less than fair market value for purposes of Medicaid eligibility, and so denied Mrs. Jordan Medicaid benefits. On Mrs. Jordan’s behalf, her nursing home called a hearing and later appealed. After all, the expenses the daughter paid were documented and done with the assumption that they would be repaid with assets from the trust. The State still denied benefits. The problem was that there was no written document at the time of the expenditure that specified the agreement to repay the daughter’s expenditures. The moral of the story is documentation. By documenting your interactions and intentions you can provide hard proof and avoid getting caught on a technicality. In Mrs. Jordan’s case, 14.31 months is a long time to wait for nursing home benefits. Reference: Elderlawanswers (July 5, 2011) “Transfer to Daughter Without Written Agreement Triggers Medicaid Penalty”

ELDER LAW / MEDICAID & LONG-TERM CARE

It’s no secret that state (and federal) budgets are severely stressed. While lawmakers look for revenue and cost-cutting measures, Medicaid services are coming under scrutiny. Managed care plans are becoming increasingly popular as one way to cut Medicaid costs. Currently six states require the elderly and disabled who need long-term care to enroll in a managed care plan. At least 10 other states are reportedly considering the same, according to a recent article from The Kaiser Health News. Traditionally, states pay Medicaid providers directly for individual services. Under managed care, states pay health insurers a fixed monthly fee for each Medicaid patient. The lump sum is used for all the patient’s costs, including physician and nursing home care. Managed care companies say they can help states save money by keeping Medicaid patients who need long-term care at home whenever possible. Tennessee pays its Medicaid health plans an average of $4,400 per member per month. AARP and some other advocates caution that managed care plans could make it harder for patients to get the services they need. The nursing home industry, which currently gets about two-thirds of its revenues from Medicaid, is complaining as well. But state officials around the country say they have little choice but to make more aggressive use of managed care, especially for long-term care patients who account for more than two-thirds of all Medicaid spending.

ELDER LAW / ELDER CARE

Caring for an aging loved one can be emotionally and financially difficult. Unfortunately, the ordeal is frequently exacerbated by healthcare problems ranging from issues with the physician to end-of-life or funeral decisions. Having recently dealt with the loss of her father, writer Jennifer Openshaw of The Wall Street Journal offers five tips on caring for elderly loved ones • Fire Your Doctor. Well, you may not have to fire your doctor, but realize that you can – and maybe you should. Many people don’t realize they can just fire a doctor who is not providing the care and attention their loved one needs. • Likewise you can fire your home-care provider. Doctors often recommend a home-care provider, and even if you respect the doctor that doesn’t mean that you have to follow their advice or stick with a provider that isn’t working out for you. • Make End-of-Life Plans Now. It’s very important – for the sake of those around you – to discuss the many details that you’d typically never think about, from life support to feeding tubes. For help thinking through these important decisions now, Florida-based Aging with Dignity has a document titled “Five Wishes” that covers related concerns, issues and questions. • Shop Funeral Costs. Yes, this is a difficult thing to do, but companies know there are profits to be made amid your grief, and prices (for very similar services) can vary widely from one provider to another. All the more reason to talk these matters through in advance, when your judgment is not clouded by grief. • Review Long-Term Care Insurance. Review your policy’s stipulations for waiting periods, maximum benefit amounts, etc. A 90-day waiting period is fairly standard, but can be quite traumatic when you’re struggling through it. Knowing in advance what will and will not be covered can make these transitions less traumatic on the family. To learn more about long-term care, visit the Long Term Care Practice Center on our website. While you’re there, be sure to sign up for our free monthly e-newsletter to stay informed on important topics like these. Link: http://www.marketwatch.com/story/five-tips-on-caring-for-elderly-loved-ones-2011-05-12?pagenumber=1 From MarketWatch (May 12, 2011) “Five tips on caring for elderly loved ones”

ELDER LAW / MEDICAID & LONG-TERM CARE

From The Kaiser Health News (Feb 22, 2011) “States Pushing Managed Long-Term Care for Elderly and Disabled Medicaid Patients” Article Quotation: Desperate to rein in rising Medicaid costs, Tennessee last year became the sixth state to require its frailest and costliest patients — the elderly and disabled who need long-term care — to enroll in managed care plans. It’s no secret that state (and federal) budgets are severely stressed. While lawmakers look for revenue and cost-cutting measures, Medicaid services are coming under scrutiny. Managed care plans are becoming increasingly popular as one way to cut Medicaid costs. Currently six states require the elderly and disabled who need long-term care to enroll in a managed care plan. At least 10 other states are reportedly considering the same, according to a recent article from The Kaiser Health News. Traditionally, states pay Medicaid providers directly for individual services. Under managed care, states pay health insurers a fixed monthly fee for each Medicaid patient. The lump sum is used for all the patient’s costs, including physician and nursing home care. Managed care companies say they can help states save money by keeping Medicaid patients who need long-term care at home whenever possible. Tennessee pays its Medicaid health plans an average of $4,400 per member per month. AARP and some other advocates caution that managed care plans could make it harder for patients to get the services they need. The nursing home industry, which currently gets about two-thirds of its revenues from Medicaid, is complaining as well. But state officials around the country say they have little choice but to make more aggressive use of managed care, especially for long-term care patients who account for more than two-thirds of all Medicaid spending. You can learn more about Medicare, Medicaid and long-term care at our website www.jerryreiflawyer.com.

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