Today’s Q&A on is about Special Needs Trusts

Question:  “My wife and I (who are in our 60s) have been encouraged to set up a Special Needs Trust for our disabled adult child.  Could you please tell us why this would be necessary?  Also, could you please provide us with a little background information on this type of legal instrument?

Answer:  Among the many challenges facing parents of children with special needs is planning for the time when the parents will no longer be around to act as the primary caregivers. Advance planning by parents can make all the difference in the life of the child with special needs, as well as for siblings who may be left with caretaking responsibilities.

A Special Needs Trust for your disabled child should be part of an overall plan for your child.  If the parent is the legal guardian for the disabled child, it is essential as part of the planning is to arrange for the orderly transfer of the guardianship to a successor.  A Special Needs Trust is a trust created for a chronically disabled beneficiary, which supplements government benefits like Medicaid.  Medicaid and other government benefit programs consider the resources and income of an individual for purposes of determining eligibility and the amount of such assistance. With a Special Needs Trust, however, someone may establish a trust for a disabled individual without jeopardizing that individual’s eligibility for government benefits. Special needs trusts allow a disabled beneficiary to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose his or her eligibility for certain government programs. Such trusts are drafted so that the funds will not be considered to belong to the beneficiary in determining eligibility for public benefits.

Often, special needs trusts are created by a parent or other family member for a child with special needs, even though the child may be an adult by the time the trust is created or funded. Such trusts are set up as a way for an individual to leave assets to a disabled relative. As their name implies, special needs trusts are designed not to provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public assistance funds. These trusts typically pay for things like education, recreation, counseling, and medical attention beyond the simple necessities of life. However, the trustee can use trust funds for food, clothing, and shelter if the trustee decides doing so is in the beneficiary’s best interest despite a possible loss or reduction in public assistance. Special needs can include medical and dental expenses, annual independent check-ups, necessary or desirable equipment  training and education, insurance, transportation, and essential dietary needs. If the trust is sufficiently funded, the disabled person can also receive spending money, electronic equipment and appliances, computers, vacations, movies, payments for a companion, and other self-esteem and quality-of-life enhancing expenses.

It is important to plan to ensure that your child receives appropriate therapies and medical treatments.  It is essential to take the time necessary to find appropriate caregivers who will carry out your wishes and respect your child’s goals, dreams and life expectations.  At the same time, Predators are particularly attracted to vulnerable beneficiaries, such as the young and those with limited self-protective capacities. When you plan with trusts, you decide who has access to the information about your children’s inheritance. This protects your child and other family members, who may be serving as trustees, from predators.

It is important that special needs trusts not be unnecessarily inflexible and generic. Although an attorney with some knowledge of trusts can protect almost any trust from invalidating the child’s public benefits, an attorney without special needs experience may not customize the trust to the particular child’s needs, and the child may not receive the benefits that the parent provided when they were alive.

You can find professionals near you who are knowledgeable about Special Needs Trusts on – America’s National Directory of Elder Care / Senior Care Resources for Families.

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois  60004
Professional Member of the national ElderCare Matters Alliance, Illinois chapter

Today’s Q&A on is about deducting parent’s Elder Care expenses on the child’s tax returns

Question:  My mother is 87 years old and lives in an assisted living facility, which cost about $4,000 per month.  She has no assets to speak of and very little income, i.e. she has a small monthly Social Security check and a very small monthly pension.  I have been paying for her care in the assisted living facility.  Is there anyway that my husband and I can deduct what we pay for mom’s medical care in the assisted living facilty on our individual income tax returns?  Please provide your answer as soon as possible because we are about to file our 2012 individual income tax returns.

Answer:  Yes, a child can deduct medical expenses that they paid on behalf of their parent (even if the parent doesn’t qualify as one of their dependents, doesn’t live with them and has a gross income that exceeds $3,800 (for tax year 2012)) if the child provided over half of the parent’s total support during the tax year.  Assuming that the child paid more than 50% of their parent’s total support during this tax year, then the medical expenses paid on the parent’s behalf in excess of 7.5% of the child’s Adjusted Gross Income (AGI) are deductible on the child’s individual income tax returns as itemized deductions.

If you have additional questions about your family’s elder care matters, you can count on ( America’s National Directory of Elder Care / Senior Care Resources) to help you find some of America’s top elder care professionals near you who can help you plan for and deal with a total of 86 different elder care services, including Elder Law, Geriatric Care Management, Daily Money Management, Estate Planning, Senior Housing, Investment Planning, Tax Planning & Preparation, plus many other elder care services.

Phillip G. Sanders, MBA, MSHA, CPA
Founder & CEO of


Today’s Q&A on is about VA Benefits and Long Term Care Insurance

Question:  I am an honorably discharged Vietnam era veteran with more than 90 days active duty service.  I am 66 and researching long term care insurance for my wife and myself.  What do I need to know about VA benefits available to me and how that might affect the insurance coverage I would purchase from a private provider?

Answer:  There are many types of benefits available to qualified veterans of the United States military and/or available to the surviving spouses of qualified veterans after they have passed away.  Of those many benefits, the two largest benefit programs offered through the United States Department of Veteran’s Affairs (“VA”) are:

(i)    Benefits awarded for service-connected disability, formally termed “Compensation” by VA; and

(ii)    Benefits awarded for non service-connected disability, formally termed “Pension” VA.

From the description you provided in your question, I will presume you are not currently suffering from a disability connected to your military service.  Succinctly, a Pension benefit award is where the VA will pay a certain amount monthly to a qualified veteran as a reimbursement to offset unreimbursed out-of-pocket medical costs.  The actual amount of the award is determined by subtracting from the veteran’s total income all recurring unreimbursed qualified medical expenses.  Bear in mind, when a veteran is married, VA will account for the total income and expenses of the family together, not just that of the veteran.  At times the benefit claimant will often need to present the properly documented opinion of their medical provider to prove to the VA that certain types of medical-related expenses are necessary.

Your question is about how long term care insurance would interact with VA benefits.  Ultimately, in a properly prepared and filed VA benefit application, VA should recognize the out of pocket cost of premiums paid for long term care insurance as a recurring medical expense that can be taken into account to offset income.  However, when a long term care insurance policy begins paying benefits, it will reduce the total countable recurring medical expenses in the amount of the benefits paid. 

In your question, you did not indicate whether you are suffering health difficulties now or if you are healthy but trying to plan for your future in the event you become ill and need long term care.  Planning proactively is wise and you are well-advised to consult a capable elder law attorney to help you devise a comprehensive plan to safeguard your family financially and to best ensure you will be well taken care of now and in the future.  By proactively planning now you will help ensure that you will be eligible for the maximum benefit possible from the VA.

You can find Elder Law Attorneys near you on – America’s National Directory of Elder Care / Senior Care Resources.

Hope this helps.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates
Bloomfield, Connecticut  06002
Premium Member of the national ElderCare Matters Alliance, Connecticut Chapter


What is the difference between Continuing Care and Skilled Care?

Question:  My sister and I are caregivers to our mother and have been for quite some time.  However, we still don’t understand what the difference is between Continuing Care and Skilled Care.  Would you please define these two elder care terms for us?

Answer:  Skilled care is ideal for patients who cannot live independently due to fairly pronounced physical or cognitive ailments.  Although the level of care delivered is not the same degree as in an acute care situation that necessitates a hospital visit, a patient receiving skilled care must generally be monitored by a team of skilled nurse providers and other health team members, twenty-four hours a day.  The most common location for a patient to receive skilled care is in a nursing home, which is now commonly referred to as a skilled nursing facility (“SNF”). 

In contrast, the term “continuing care” generally refers to care provided in some sort of a facility that can accommodate a wide variety of capabilities in its residents – ranging from complete independence to a need for quite a bit of care and assistance.  There are now many so-called continuing care retirement communities (“CCRC’s”) that offer this sort of spectrum of care to residents.  In a CCRC, seniors can “age in place,” meaning the resident does not need to relocate when their deteriorating health means an increasing level of care is required.  That can give residents a sense of comfort and can decrease their anxiety about what will happen in a health crisis. 

Sometimes, a health issue is so pronounced there is no other option than for a brief of long-term residency in a SNF, since a CCRC may have an upper limit to the level of care they are equipped to handle.  Sometimes, a CCRC may have a separate portion of the facility that is effectively its own skilled nursing facility.  There, a resident may be able to stay in their original residence from full independence up until assisted living, but then relocate when skilled nursing is required.  A small move to a different area within the same facility would likely be less traumatic than relocation to an entirely different, unfamiliar SNF. 

What are the advantages and disadvantages of a CCRC?  The obvious advantage is the desirability of living somewhere where the resident can likely receive whatever type of care they need for the near foreseeable future.  Because many residents in a CCRC need little or no care, it will be easier to participate in activities to stay active and to find peers with which to socialize.  The main disadvantage of a CCRC is they can be quite expensive and they do not accept residents on Medicaid. 

What are the advantages and disadvantages to a skilled SNF?   The main “advantage” so to speak is a SNF may be the only place in which a resident can be taken care of properly.  For example, many CCRC’s simply cannot care for a resident who developed pronounced dementia, whereas many (but not all) SNF’s may be equipped for that sort of patient.  A disadvantage of SNF’s is that almost all the residents will be quite frail and/or very ill.  For a senior who is only moderately weak or having slight difficulties, it will probably be demoralizing to now be surrounded by the very sick.  

Financially speaking, the private pay cost for SNF’s are extremely expensive, so expensive that patients are unable to bear the costs out-of-pocket for very long.  However, almost all SNF’s can and do accept residents on Medicaid.  For those that have the financial means, and assuming a senior’s heath conditions permit it, residency in a CCRC can be highly desirable. 

The key point to bear in mind is it is undoubtedly advantageous to start planning for long-term care long before there is a health care crisis.  For some seniors, their primary concern is to make sure they are well-cared for, and in the residence setting they find most desirable.  Many seniors would also like to take steps to make sure the assets they have worked a lifetime to accumulate are not squandered unnecessarily.  I highly recommend that a senior and/or the family of a senior consult with a competent elder law attorney as soon as they can, when they are financially sound and they are in good health.  That is the ideal time to devise a good plan that addresses both health needs and financial issues, for the present and for the future, that is also flexible enough to be updated and adapted when family circumstances do change.

Henry C. Weatherby, Attorney at Law
Weatherby & Associates, PC
Bloomfield, Connecticut
Premium Member of the national ElderCare Matters Alliance, Connecticut chapter

Today’s Q&A on deals with options for Elder who has newly diagnosed Alzheimer’s Disease

Question:  “Help!  My mother has been diagnosed with Alzheimer’s Disease and my family and I have no idea how to proceed in helping her.  At what point do we consider nursing home care, and how will we afford this, etc??  Please provide us with some guidance as to how we should proceed and what our options may be.”

Answer:  The first place to start is with your mother’s doctor.  He will be in the best position to assess your mother’s need for long-term care.  This could be an immediate need or one that will develop over a period of time.  If the doctor feels that she needs immediate long-term care then he will complete the necessary paperwork to have your mother’s condition reviewed by the Medicaid people in your state.

Assuming that Medicaid agrees that your mother needs long-term care at this time, your next step is to sit down with an experienced Medicaid planning attorney.  The Medicaid planning attorney will review your mother’s legal documents –particularly her durable power of attorney- to make sure that they comply with current law.  Of course, if your mother is still married, then the attorney will review your Dad’s documents as well.  If not, then he will prepare a new durable power of attorney for her (again, she must be competent at this stage to avoid a guardianship proceeding) and perhaps your Dad as well.

The Medicaid planning attorney will review your mother’s monthly income and overall wealth to determine what type of Medicaid planning tools are needed to protect her estate.  If she has too much monthly income (over $2130 per month), then he will prepare a Qualified Income Trust to insure that she passes the income test.  If she received less than $2130 per month, then this step will be unnecessary.

Next, the attorney will review her assets.  As a Medicaid applicant she is only allowed to retain $2,000 in assets (cash or cash equivalents, stocks, bonds, etc.).  If excess assets exist, the attorney will look to see what other avenues are available to protect the remaining assets.  This may include a personal services contract, trusts for the benefit of a disabled adult or minor child, purchasing a pre-paid funeral contract, setting aside and designating a burial fund, purchasing a burial plot and arranging for and paying for the headstone.  There may be other purchases for clothing, etc. that may come into play to get her down to the $2,000.00 limit.  If Mom is married this will be somewhat easier as she can transfer property to your father without incurring a penalty.

Either your Mother’s doctor or the attorney that you pick to help you should be able to recommend the proper living environment for your mother.  I would suggest that you personally visit all of the facilities that are discussed to make sure that you get the proper fit for your mother.

The Medicaid application can be completed by any number of people.  Your attorney may do it, a paralegal can do it or someone at the assisted living facility or nursing home can do it for you.  The attorney and the paralegal, of course, will charge you for this work.  It is best to seek their help as they should have the needed experience to do it properly and to avoid the pitfalls that you might see.

As long as you put together a good team of doctor and attorney you should not find the application process to be all that difficult.  The difficulty usually comes up with searching for the back-up documents that support your answers on the Medicaid application.  Just remember that each application is different from the last one so do rely on the help of the individuals mentioned in this answer. is a good resource to use to find Medicaid Planning Attorneys across America who can help you with these types of Elder Care Matters.

I. Michael Tucker, Attorney at Law
Law Office of I. Michael Tucker, PLC
Altamonte Springs, Florida  32701
Member of the national ElderCare Matters Alliance, Florida chapter

Attorney/Caregiver Encourages ALL Elder Care Professionals to be listed on

Question:  “I am not only an attorney, but also a member of a family that is struggling with a host of elder care matters, similar to what millions of other families across America are wrestling with.  With this in mind, I would appreciate it if you would let me know what I can do to help you encourage ALL Elder Care Professionals across America to be listed on this online Elder Care Directory.  In my opinion, is quite simply a wonderful resource to help all families across America with their elder care matters, including 1) finding elder care professionals near them,  2) finding useful elder care articles and 3) getting answers to a wide range of elder care questions.  Thank you for providing American families with this wonderful online Elder Care Directory.

Answer:  Thank you very much for your kind comments regarding  It is our goal here at to provide ALL families across America with an easy to navigate online resource so that they can find competent, caring Elder Care Professionals near them as well as find useful Elder Care Articles plus get their questions about Elder Care Matters answered by some of America’s top Elder Care Professionals.

Although we now have tens of thousands of Elder Care Professionals listed on, we too believe that ALL Elder Care Professionals across America should be listed on this national online Elder Care Directory.  With this goal in mind, any assistance you can provide us in “getting the word out” within your state to encourage ALL Elder Care Professionals to get listed on would be appreciated, not only by us but also by the tens of thousands of American families who rely on every month to help them plan for and/or deal with their family’s elder care matters.

Phillip G. Sanders, MBA, MSHA, CPA
Founder of – America’s online Directory of Elder Care Resources

Today’s Q&A on is about the VA covering nursing home care?

Question:  Does the VA cover nursing home care?

Answer:  The Department of Veterans Affairs (VA) may provide long-term care for service-related disabilities or for certain eligible veterans. There might be a waiting list for VA nursing homes. The VA also provides some at-home care. The V.A. provides nursing home and other long-term care — the V.A. calls it “extended care” — for many veterans. Nursing home care can be provided in VA or private nursing homes for veterans who are in need of care, but are not acutely ill and not in need of hospital care. Priority is given to veterans with service-connected disabilities. If space and resources are available, other veterans may be considered. Veterans who do not have service-connected disabilities for which they’re entitled to compensation must agree to make a co-payment. They furnish a financial statement, and VA establishes a co-payment based on that information.

To be eligible for nursing home care, you must be enrolled in the VA health care system or be eligible for VA health care without the need to enroll.

Those eligible for V.A. nursing home or non-institutional long-term care include:

  • Veterans with a service-connected disability rating (or combined disability ratings) of 70 percent or higher.
  • Veterans with a 60-percent service-connected disability rating who are unemployable, or who have a rating of “permanent and totally disabled.”
  • Veterans with a service-connected disability that’s clinically determined to require nursing home care.
  • Veterans who require nursing home care for any nonservice-connected disability and who meet income and asset criteria.
  • Other veterans on a case-by-case basis, with priority given to veterans with service-connected disabilities and those who need care for post-acute rehabilitation, respite, hospice, geriatric evaluation and management, or spinal cord injury.

In addition, Veterans who do not qualify for extended care may receive Aid and Attendance from the VA, which is a different program with different criteria.  This program is designed to help veterans stay in their homes instead of going to a nursing home.  Unfortunately, the amount a Veteran can receive in Aid and Attendance is insufficient to pay for skilled care. At that point it is frequently necessary for the Veteran to transition to Medicaid for payment of Nursing Home Care.

If you have additional questions about VA benefits, you may want to talk with an attorney near you about this Elder Care Matter, many of whom can be found on 

James C. Siebert, Esq.
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois  60004
Member of the national ElderCare Matters Alliance, Illinois chapter

Today’s Q&A on is about Appealing Medicaid Denials

Question:  The state has denied my mother’s request to receive long term care Medicaid benefits.  Is there any way we can appeal this decision, and how would we go about doing this?

Answer:  You have the right to appeal the decision denying your mother’s Medicaid.  I cannot answer as to the exact procedures for any state other than Illinois. It is extremely important that you act immediately, because you generally have a very limited time in which to file your appeal. In Illinois, the Decision form which the State sends out has the specific instructions regarding the steps necessary to appeal the denial of benefits.  I do not know if that is also true in your State, but I would think there would be some explanation with the decision. I strongly recommend that you immediately hire an experienced Elder Law Attorney to represent your mother.  First the Attorney can evaluate the decision to see why benefits were denied. Frequently, when someone files an Application themselves or with the assistance of someone other than an Attorney, the application is completed incorrectly or insufficient information is provided to the State. In Illinois, the State will deny an application because it is incorrectly completed, does not contain the required back up documentation or you fail to provide the additional documentation the State requests within the time they give you, usually 10 days. These denials occur even though the applicant is entitled to Medicaid and would receive it if the application was done correctly.  Obviously, denial may also be because your mother does not qualify for Medicaid or because she has made improper transfers of assets which cause her disqualification. An Elder Law Attorney can advise you whether the reason for the denial is appealable or whether there are additional steps necessary to protect your mother’s interests. It is imperative that you act immediately and I cannot emphasize enough the importance of hiring an experienced Elder Law Attorney, many of whom can be found on ElderCareMatters.comAmerica’s #1 online Directory of Elder Care / Senior Care Resources.

James C. Siebert, Esq.
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois  60004
Member of the national ElderCare Matters Alliance, Illinois chapter

Today’s Q&A on is about Medicare’s rules regarding payment for ambulance services

Question:  My brother has Medicare as his primary insurer and Plan F as his Secondary Supplement (Mutual of Omaha).  He has congestive heart failure, requires oxygen, kidney failure, problems with vision, diabetes and is unable to walk.  He is confined to his home.  His wife provides his care. He is unable to ride in a car.  He cannot walk or support himself to get in and out of car and he needs supervision and oxygen when making a trip. He also requires a bariatric stretcher due to his weight.  He has dialysis three days a week and Medicare provides ambulance service to and from the facility due to medical necessity.  If he has any type of surgery, Medicare provides an ambulance.  When he goes for a follow up visit after surgery or when he has an appointment with a specialist, the ambulance service states that Medicare will not pay under any circumstances.  I have called Medicare and received conflicting answers to this question.  I need clarification.  I have also received conflicting answers from different ambulance services.  He lives in a small town and there is only one ambulance service available with a bariatric stretcher.  How does a person who cannot ride in a car get ambulance service for follow up appointments after surgery and to specialist’s offices when needed?  He has had two cataracts removed and needs to see an ophthalmologist that is about 43 miles from his home.  What are our options?  He is unable to pay for this service himself and from what I read on the Medicare site, the ambulance trip should be covered if medically necessary.  Any help would be appreciated.

Answer:  The rules regarding Medicare payment for ambulance services can be complex. Medicare will pay for the emergency transportation to a hospital or a skilled nursing facility when other transportation could endanger your health.  Medicare will also cover ambulance services in certain specific circumstances, one of which is if you have End-Stage Renal Disease, need dialysis, and need ambulance transportation to or from a dialysis facility because other transportation could endanger your health.  That is why your brother receives the services when going for dialysis.  

In addition, in some cases, non-emergency ambulance transportation may be provided when you need ambulance transportation to diagnose or treat your health condition and use of any other transportation method could endanger your health.  Medicare may cover limited non-emergency ambulance transportation if you have a statement from your doctor stating that ambulance transportation is necessary due to your medical condition. This would seem to apply to your brother cannot ride in a car and needs an ambulance with a bariatric stretcher.  The ambulance company needs to fully document why your brother needs the ambulance transportation.  If it fails to properly document it, Medicare will deny coverage.  If this happens, contact the doctor who treated you or the discharge social worker at the hospital to get more information about your need for ambulance transportation.  Then have the ambulance company resubmit the bill to Medicare. If you or anyone else needs more information regarding what Medicare covers regarding ambulance services, Medicare has a publication on the subject at Good luck.

James C. Siebert, Esq.
The Law Office of James C. Siebert & Associates
Arlington Heights, IL  60004
Member of the national ElderCare Matters Alliance, Illinois chapter


Update on changes in the VA’s Aid & Attendance Program

Question:  My family and I read with interest last week’s update regarding proposed 2013 changes to the VA’s Aid & Attendance program, and we were wondering whether you could provide us with an update as to where these proposed changes actually stand.  Have any of these changes been implemented (and if yes, when), and if they have recently been changed, will we need to re-do the VA Aid & Attendance application that we submitted just last month for our 87 year old mother?

Answer:  The changes have been proposed by Congress.  I believe they are currently in committee.  There are several organizations that are concerned about the proposed 3 year look back.  What we know at this point is if they happen they will not take effect until next year.  However, this is no guarantee that they will not be effective immediately.  There have also been some recent changes in regard to annual reporting commonly called an EVR.  The VA has eliminated the need to provide the annual report.

The VA has also made the rules pertaining to unreimbursed medical expenses stricter with respect to Independent Living Facilities providing care through 3rd party companies.   The have differentiated between an ADL (activity of daily living) and an IADL (instrumental activity of daily living).  Specifically, the VA is now requiring among other requirements, assistance with 2 ADL’s; walking/transferring; eating; bathing; dressing and toileting and cognitively impaired.    IADL’s no longer count as an ADL such as medication reminders, meal preparation, laundry etc…

As for submitting a new application I do not believe it is necessary at this time.  However, the VA has developed a new form for a Veteran and surviving Spouse of a Veteran called a Fully Developed Claim.

Hope this helps.

Don L. Rosenberg, Attorney and Counselor
The Center for Elder Law
Troy, Michigan
Member of the national ElderCare Matters Alliance, Michigan chapter

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