Who qualifies for Medicaid? Today’s Q&A on ElderCareMatters.com

Who qualifies for Medicaid?

Answer:   In broad terms, to qualify for Medicaid in Ohio or Kentucky, you must be both medically and financially eligible. Medically, a level of care assessment is administered to determine whether you need assistance with certain daily activities, such as: bathing, grooming, eating, dressing, etc. Financially, your income must be less than your medical costs, and your resources must be at a certain level depending on your financial and marital situation. However, certain assets like your home, car, personal belongings, and a few other exceptions do not count towards resource eligibility. If you fall just above the qualifications for Medicaid but do not have enough to cover all of your medical expenses, Medicaid sometimes will cover the difference in your costs.

Medicaid does not count the value of a home towards Medicaid eligibility; however, a parent, spouse, or dependent, or other family member must remain living in the home, subject to certain restrictions. If the Medicaid participant was the only person living in the home at the time he or she moved into the long-term care facility, then the house must be sold (within 6 months in Kentucky or within 13 months in Ohio) to help recoup some of the medical expenses.

If you need help with this elder care / senior care legal matter, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Medicaid Planning Attorneys
William E. Hesch, Esq., CPA, PFS
William E. Hesch Law Firm, LLC
Cincinnati, Ohio
An ElderCare Matters Partner


Should you name a Trust as Beneficiary of your Individual Retirement Account (IRA)?

Should you name a Trust as Beneficiary of your Individual Retirement Account (IRA)?

Answer:  Some of us are lucky enough to have an IRA account that we will not have to use during our life. For these individuals, it might be a concern whether to leave this IRA to beneficiaries outright or in a trust. There has been an ongoing debate relating to whether it is more beneficial to simply designate a beneficiary or use a trust to receive IRA assets. After a United States Supreme Court case recently found that an IRA is accessible by creditors in bankruptcy, many are leaning towards the latter option.

IRA accounts do not pass according to a person’s will. When you open an IRA account, you are asked to fill out a beneficiary designation that specifies who will receive the assets in the event of your death. If you decide to use a trust to receive these assets, you must create one specifically for that purpose, to be sure that is has all of the necessary terms and manages the assets according to your requirements.

Using a trust to receive an IRA account after death can be beneficial to your heirs. They can offer protection from creditors, even in the case that one of your beneficiaries gets divorced. They also allow you to put certain restrictions on the inheritance to protect it from an irresponsible heir. In addition, the use of a trust can allow you to leave these assets to an heir that is a minor, a task that cannot be done using a beneficiary designation, and allows you to control the way the inheritance is used when the minor becomes of age.

But, the use of a trust does have some disadvantages as well. For instance, a trust allows you to name multiple beneficiaries of IRA assets. But, by doing this, you might be burdening your other heirs. If one of the beneficiaries is much older than the rest, the minimum required distribution (the amount your heirs are required to take every month) might be significantly greater than it would be had you only appointed a single beneficiary of a younger age. Spouses can also be negatively affected by using a trust to receive an IRA. Spouses can lose the income tax benefit that they would get if the IRA was inherited outright, among other things.

If you need help with this elder care / senior care legal matter, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Estate Planning Attorneys
Brian Chew, Esq.
OC Wills & Trust Attorneys
Irvine, California
An ElderCare Matters Partner


Power of Attorney

Would you please provide us with some information about the Power of Attorney?

Answer: 

  1. What is a Power of Attorney?

A Power of Attorney is a document in which you can appoint an agent to make financial transactions on your behalf if you are not present to make these transactions.

  1. What is the difference between a Power of Attorney and an Executor?

A Power of Attorney is in effect only during your lifetime. An Executor takes over the management of your estate upon your death. You name the Executor in your Will.

  1. What is a durable Power of Attorney?

A durable Power of Attorney states that the Power will be in force even if you subsequently become disabled.

  1. How do I appoint an agent?

The Power of Attorney form is a form that must be signed before a Notary Public.

  1. What powers can I give to my agent in the Power of Attorney?

The form lists the areas of authority that you delegate. These include real estate transactions, banking transactions and insurance transactions, to name a few. However, the Power of Attorney does not in itself authorize the agent to make unlimited gifts.

  1. How can I authorize my agent to make gifts?

A Power of Attorney can be personalized to indicate the authority to make gifts and the limits, if any, on this authority.

  1. My bank has its own Power of Attorney Form. Do I need it?

A general Power of Attorney must be honored by banks. However, they sometimes are reluctant to honor them, so if you can sign the bank form, it is often easier for the agent to make transactions later on.

  1. Whom should I appoint as my agent?

You should appoint only someone whom you trust explicitly. You may also appoint two people acting together as an additional safeguard.

  1. If any accounts and house are all jointly held, do I need a Power of Attorney?

The joint accounts should be able to be accessed without the Power, but for real estate, a Power of Attorney will be needed.

10. Can I appoint my agent so that he or she has authority only if I become incapacitated?

The Power of Attorney is not valid for an agent appointed until he or she has signed the Power of Attorney before a Notary Public. You may execute the Power of Attorney but not have your agent sign until you are incapacitated.

If you need help with this elder care / senior care legal matter, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Power of Attorney
Joan Lensky Robert, Esq.
Kassoff, Robert & Lerner, LLP
Rockville Centre, New York
An ElderCare Matters Partner


Elder Abuse and Guardianship

Question:  Would you please provide us with some information about elder abuse that is perpetrated by Guardians?

Answer:  It happens often that My Elder Advocate is called in to represent a resident who has placed in a Nursing Home against their will by a court-appointed guardian. In many of these guardianship cases, the elder is being abused or neglected and close family members have been banned from visiting their loved ones. In other cases, nursing homes themselves have been declared guardians and they have used this opportunity to pillage the personal accounts of the elders they are supposedly protecting.

As the number of seniors increase, so too will the number of individuals with cognitive disabilities such as Alzheimer’s disease and dementia and the trend of invoking guardianship for elders with these disabilities. However, guardianship – a legal tool which gives one person or entity the power to make personal and/or property decisions for another – has the potential of harming older adults rather than protecting them if not carefully administered.

There are several major functions that a guardian for an adult carries out:

• Making decisions the person is unable to make for himself or herself
• Exercising rights on behalf of the adult that the adult is unable to exercise for himself or herself
• Acting as an advocate for the adult’s best interests
• Taking action to protect the adult from abuse, neglect, self-neglect, financial exploitation and violation of rights

Over the years, a growing uncaring and unjust judicial system has helped convert guardianship/conservatorship from an appropriate law to one which, if misused, is damaging to the general public. At present, it operates to ensnare the most vulnerable people in a larger and larger trawling net, including those merely physically “incapacitated”! It has become a feeding trough for unethical lawyers and other “fiduciaries” appointed by the courts to protect, but many of whom become nothing more than predators.

Wards of the state lose all self-determination rights, including:
• the right to contract and choose a lawyer;
• the right to control their assets and make financial decisions;
• the right to remain in their own home and protect it from sale;
• the right to protect and enjoy their personal property;
• the right to choose where to live;
• the right to accept or refuse medical treatment, including antipsychotic drugs;
• the right to decide their social environments and contacts;
• the right to assure prompt payment of taxes and liabilities;
• the right to vote;
• the right to drive;
• the right to marry; and
• the right to complain.

The best way to avoid these abuses is to PLAN ahead of time.

If you need help with this or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find some of America’s TOP Elder Law Attorneys and Estate Planning Attorneys on 2 new websites sponsored by the national ElderCare Matters Alliance – ElderLawAttorneys.us and EstatePlanningAttorneys.us.

Elder Abuse and Guardianship
Jack Halpern, Founder and CEO
My Elder Advocate LLC
New York, New York
An ElderCare Matters Partner


Additional Information about Estate Planning

Question:  Would you please provide us with some additional information about Estate Planning?

Answer:  Estate planning is the process of determining how to manage your property and assets during your lifetime and following death or incapacity. Estate planning generally includes four primary elements or decisions:

  1. How and by whom your personal care will be managed and how healthcare decisions will be made during your lifetime if you become unable to care for yourself.
  2. How and by whom your assets will be managed during your lifetime if you become unable to manage them yourself.
  3. How, when, and under what circumstances you distribute your assets during your lifetime.
  4. How and to whom your assets shall be distributed following your death.

Estate planning provides your children, spouse and other loved ones financial protection. It can address (and possibly eliminate) estate tax issues.

WILLS

A Will permits an individual to dictate the management and distribution of his or her estate following death. It is often only one part of the planning process and used to complement other planning instruments. Specifically, a Will assures the deceased (referred to as “testator”) that his or her spouse will receive property that might otherwise pass to other family members; allows the testator to appoint guardians for minor children or to appoint a trustee for the benefit of the children (even adult children); divides and distributes real and personal property; and designates a personal representative. A personal representative is the individual designated in a Will to carry out the testator’s wishes.

TRUSTS

In addition to, as part of, or as an alternative to a Will, an estate planner might recommend creating a trust. A trust is an arrangement whereby a trustee, for the benefit of the beneficiary, manages real and/or personal property. A person who creates a trust is a trustor. The trustee holds legal title to the trust property and is required to hold the property for the beneficiaries specified by the trustor. There are several types of trusts including: lifetime trusts, revocable and irrevocable trusts, a trust created by a Will (testamentary trusts), and life insurance trusts. Advantages of creating trusts include planning for incapacity or guardianship, certain tax benefits and avoidance of probate. Probate is the legal process of settling the estate of a deceased person. Using a Trust to avoid probate in a complicated estate is advantageous because of the expenses involved. It also assures privacy as probate records are open to the public.

POWER OF ATTORNEY

A power of attorney is an authorization to act on someone’s behalf. It allows one to establish directives regarding health, finances, and assets before incapacity. Planning for incapacity and naming an attorney-in fact diminishes the potential conflict between family members and friends if you become unable to care for yourself. There are two primary forms: healthcare power-of-attorney and financial power-of-attorney. The financial power of attorney can be durable or limited. A durable financial power-of-attorney gives the person you designate broad powers to handle your property during your lifetime. A limited power-of attorney restricts the authority of the agent to specific situations, limited time periods or type of legal actions. The powers granted to the agent will remain in effect even if you become disabled or incompetent. The power of attorney can grant the agent the power to gift assets, a useful tool if the person becomes incompetent and further estate planning is necessary. A healthcare power-of-attorney allows you to appoint someone to make healthcare decisions for you if you become incapacitated.

TRANSFER-ON-DEATH DEED

A unique mechanism available in Wisconsin to transfer real estate is the Transfer-on-Death deed. The owner of real estate conveys title to beneficiaries (usually children). The transfer is not effective, however, until death. Until death the owner can still sell or mortgage the property or cancel the Transfer-on-Death deed.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Estate Planning Attorney
Jens H. Loberg, Esq.
Loberg Law Office
Ellsworth, Wisconsin
An ElderCare Matters Partner


Difference between a Will and a Living Will – Today’s Q&A on ElderCareMatters.com

What is the difference between a Will and a Living Will?

Answer:  A will deals with assets, whereas a living will deals with medical care.  Many States have done away with the so-called living will and replaced it with the advance health care directive (AHCD).  An AHCD can accomplish a variety of objectives, from saying who will make health care decisions for you if you cannot communicate with your doctors, to saying under what circumstances conventional health care will be withheld from you so that nature will be allowed to take its course.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Difference between a Will and a Living Will
Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii
An ElderCare Matters Partner


What Estate Planning Documents should I have? Today’s Q&A on ElderCareMatters.com

Question:  What Estate Planning Documents should I have?

Answer: A comprehensive estate plan should include the following documents, prepared by an attorney based on in-depth counseling which takes into account your particular family and financial situation:

A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You (and your spouse) are the Trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your Living Trust is “revocable” which allows you to make changes and even to terminate it. One of the great benefits of a properly funded Living Trust is the fact that it will avoid or minimize the expense, delays and publicity associated with probate.

If you have a Living Trust-based estate plan, you also need a pour-over will. For those with minor children, the nomination of a guardian must be set forth in a will. The other major function of a pour-over will is that it allows the executor to transfer any assets owned by the decedent into the decedent’s trust so that they are distributed according to its terms.

A Will, also referred to as a Last Will and Testament, is primarily designed to transfer your assets according to your wishes. A Will also typically names someone to be your Executor, who is the person you designate to carry out your instructions. If you have minor children, you should also name a Guardian as well as alternate Guardians in case your first choice is unable or unwilling to serve. A Will only becomes effective upon your death, and after it is admitted by a probate court.

A Durable Power of Attorney for Property allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you during a period of incapacitation. This guardianship process is time-consuming, expensive, emotionally draining and often costs thousands of dollars.

There are generally two types of durable powers of attorney: a present durable power of attorney in which the power is immediately transferred to your agent (also known as your attorney in fact); and a springing or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend. Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.

The law allows you to appoint someone you trust to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a Durable Power of Attorney for Health Care or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then ensure that health care professionals follow your wishes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. In addition to the above documents, you should also sign a HIPAA authorization form that allows the release of medical information to your agents, your successor trustees, your family and other people whom you designate.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Estate Planning Attorney
James J. Ruggiero, Jr., Esq.
Ruggiero Law Offices, LLC
Paoli, Pennsylvania
An ElderCare Matters Partner


Signs and Symptoms of Elder Abuse and Neglect

What are the Signs and Symptoms of Elder Abuse and Neglect?

Answer:  Unfortunately, there are many different kinds of elder neglect and abuse. When you have a loved one who needs care, the last thing you want to worry about is whether this family member is being hurt or neglected in a nursing home, assisted living, or other care facility. Sadly, this issue has become of increasing importance across Michigan and throughout the county. Personal injuries, malpractice, and inadequate care and supervision are increasing in magnitude as the elderly population increases.

Physical neglect refers to the failure to provide for an older individual’s mental and physical needs, while physical abuse is the battery or assault of an older or vulnerable adult. There are several signs you can watch for if you are concerned about elder abuse or neglect.

Falls and fractures are some of the most common injuries associated with an injured senior. Fractures should rarely happen when there are professionals on duty. Bed sores, too, are a telltale some that a person is not being given the proper level of attention. Bed sores are almost always preventable with proper care, nutrition and hydration.

Likewise, with proper care and attention at a nursing home or other facility, there should be no reason that repeated infections are allowed to happen. If your loved one is suffering from constant infections, you may need to speak to a geriatric health professional, elder law attorney, or explore alternate care options. Medication errors and inadequate staffing can also signal to you that you should search for a new location for your loved one.

There are a few other signs that can indicate that your loved one is being neglected, like wandering outside of a secure area, sudden loss of weight, or dehydration. Clear schedules should be implemented for providing care and assistance with activities of daily living, like nutrition, hydration, cleaning and toileting, when your loved one needs help in those areas. In a suitable and well-managed care facility, there should be adequate assistance available for your elderly loved one in these areas.

Sadly, there may also be signs of sexual or physical abuse, and your loved one may have a difficult time discussing these. If your loved one is concerned about his or her safety or believes that speaking about the abuse could only lead to more harm, you may have a difficult time getting details out of him or her. You are the best judge of your loved one! If you notice your family member tensing up or being unwilling to speak around care staff, you should investigate further what is happening. Always document any bruises or other “accidents” that are impacting your loved one in a care facility.

Your loved one has a right to dignity and respect alongside adequate daily living and medical care. It can be devastating to learn that your loved one has been hurt or simply ignored when you thought you were doing the right thing by linking them to a nursing home or other care facility. If you sense that your loved one is suffering, don’t hesitate to take action. Contact an elder abuse or personal injury attorney to talk through the options and find a way to make your loved one safe and comfortable again. No one’s golden years should be marred by neglect, poor care, or even worse, physical or sexual abuse.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Signs and Symptoms of Elder Abuse and Neglect
Don L. Rosenberg, Attorney and Counselor
The Center for Elder Law
Troy, Michigan
An ElderCare Matters Partner


What is a Care Plan? Today’s Q&A on ElderCareMatters.com

Question:  What is a Care Plan?

Answer:  A Care Plan is a road map for the resources and services a client requires and includes recommendations for those resources and services. The Care Plan is based on the initial assessment with you and your loved ones and is geared to improving the client’s quality of life. The assessment should be done by a experienced Care Manager.

An Individualized Care Plan can include recommendations to the following:

  • Placement locations
  • Medical providers
  • Durable medical equipment
  • Transition services
  • Homecare services
  • Financial and legal professionals
  • Family support
  • Dementia specialists
  • Support Services

If you need help with this or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Elder Care Matters Partner
Heather Frenette, RN, MSN, CMC
Desert Care Management
Gilbert, Arizona
An ElderCare Matters Partner


Will a divorce revoke a Will? Today’s Q&A on ElderCareMatters.com

Question:  Will a divorce revoke a Will?

Answer:  If you are facing divorce, or are divorced, you need to take a close look at your estate planning documents to ensure that your wishes are carried out. Wills executed prior to January 1, 1997 are revoked under Connecticut law if the testator of the will is subsequently divorced. C.G.S. § 45a-257e. This severe result under Connecticut law could have drastic consequences to your carefully constructed estate plan. Under these circumstances, your estate would be distributed under intestate law, which may not coincide with your wishes. Another consequence is the additional expense and delay in petitioning the Probate Court to have an administrator appointed. This Court appointed administrator may very well end up being an individual you do not want handling your financial affairs. Although wills executed on and after January 1, 1997 will not be revoked by subsequent divorce, part of your estate could still pass under intestate law if the provisions of your will fail to provide for an alternate beneficiary. C.G.S. 45a-257f. In addition, property that does not pass pursuant to your will may require a change of beneficiary to ensure that your ex-spouse is not an accidental beneficiary to the detriment of your loved ones. A necessary step of the divorce process, although often overlooked, is a systematic review of your estate planning and beneficiary documents. By carefully reviewing your estate planning documents with your attorney, you can ensure the distribution of your assets according to your wishes.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Estate Planning Attorney
Simon J. Lebo, Esq.
Brown, Paindiris & Scott, LLP
Glastonbury, Connecticut
An ElderCare Matters Partner


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