James J. Ruggiero, Jr., Esq., AEP
Ruggiero Law Offices
Paoli, Pennsylvania 19301
“ARE YOU HAVING A BAD HEIR DAY?”
As Benjamin Franklin once said, “You may delay, but time may not.” No truer are these words than in the case of estate planning. The average person allows 10-to-15 years to elapse before revising his or her estate plan. Life’s ups and downs, and the impending estate tax law changes, present the opportunity to protect your legacy.
Beginning in 2011, the tax rates in effect prior to 2010 return in force. Although in 2009, the rate was a flat 45 percent on taxable estates in excess of $3.5 million, in 2011, the top marginal rate will be 55 percent, and the exemption rate will decrease to $1 million. For example, if your estate were worth $1.5 million, in 2009, you would not have paid federal estate tax; whereas, in 2011, you will pay federal estate tax because of the decreased exemption. With the potential impact of this in mind, don’t let the heir day of your loved one turn out to be a bad heir day.
How could that happen, you ask? Well, in 2006, 46 percent of the general public had a will; however, in 2007, that percentage dropped to 37.
Actually, estate planning is about more than having a will. Four basic documents encompass a good estate plan: a Last Will and Testament, a General Durable Power of Attorney, a Healthcare Power of Attorney, and a Living Will.
Each of us needs an updated Living Will
The recent celebrity case involving Gary Coleman provides a clear example of the ills that can occur without an updated estate plan. In 2006, Coleman created a healthcare directive that gave his then-wife power to make medical decisions if he became incapacitated. It apparently included a statement to prolong his life for as long as possible. After divorcing and failing to revise his healthcare directive, Coleman suffered a head injury and was admitted to the hospital, diagnosed with a brain hemorrhage. Coleman’s ex-wife decided to take Coleman off life support only one day after he was admitted.
In some states, divorce fails to nullify a healthcare directive. If you have been through a divorce, it is wise to review your estate documents to ensure they continue to reflect your wishes.
Form your own dynasty
Although problems can arise due to neglecting to update healthcare directives, preserving wealth is perhaps the greatest concern. Too often, we underestimate the size of our estate, not realizing the problems this can cause after we have gone. Trusts provide a viable option for ensuring that your heirs do not pay excessive estate taxes upon your death. Different types of trusts are available to meet your needs and the needs of your loved ones.
A dynasty trust is one way wealth preservation can be achieved. Despite its name, the term has nothing to do with aristocracy. With a dynasty trust, you transfer the assets of a business, real estate, or other income-producing property to the trust. Depending on the exact terms, the income accumulates or is paid out on behalf of the trust’s beneficiaries: children, grandchildren, or even remote descendants. Assuming the assets remain in the dynasty trust, they will not be included in a beneficiary’s estate when he or she dies. Thus, the asset values can continue to compound over several generations without any erosion due to estate taxes. Further, because the beneficiaries do not own the assets, there is protection against loss from creditors or divorce proceedings. Wealth is preserved and remains in the hands of family–with little or no tax consequences.
Create a “heir” style that works for you
When is a good time to update your estate plan? While it is always good to maintain a current estate plan, significant life events mandate a revision. If you’ve recently started a business, you may need to update your estate plan. Crucial aspects, such as business succession planning, guarantee that the wealth you’ve worked so hard to build is passed on to those you love or designate. Additionally, our changing economy can result in loss of a job or early retirement, both invoking the need for a review. Similarly, a spouse that is re-entering the work force or changing from full- to part-time status, necessitates re-evaluating your assets.
Changes in family may dictate a change in your estate plan. If a son or daughter should marry someone you would prefer not to include as an heir, inevitably, you would want to take a second look at your estate planning. You would find it important to avoid the risk that your wealth could end up in the hands of a former son- or daughter-in-law.
Indeed, even if you like your in-laws, other life events can trigger an update to your estate plan. Have you recently moved into Pennsylvania? Or, are you planning a move to another state? If so, it is good advice to learn about the laws of your new locale to make sure that your plans are protected. Even marriages, births, and other happy events in our lives should awaken the notion that our estate plans need to be re-examined.
Perhaps you have a domestic partner who you would wish to one day become your heir. Pennsylvania does not recognize same sex or common law marriages. Thus, in this Commonwealth, a same sex or opposite sex non-related individual inheriting from you will be taxed at a rate of 15 percent. Don’t let him or her experience a bad heir day. Trusts and other estate planning, such as beneficiary designations on financial accounts, can play an important role in preserving the assets of your domestic partnership.
Most of us put estate planning on the back burner. It’s easier to choose to wait for tomorrow. By contrast, we go to the barber or beauty salon on a regular basis because we defy being caught having a bad hair day! Applying mousse, gel and spray guarantees we will have a good hair day. Similar protection in the form of a good estate plan can be applied so that a bad heir day is likewise avoided.
Have your estate plan updated today, and do wonders for your heir!
If You Don’t Have a Will, What Happens to Your Estate?
I often get asked: “What happens if I don’t have a Will?”
Depending on the size of your estate and the number of your children or other heirs, you may not need a will. I generally recommend a will, since most of the time it makes sense to have one.
But, if you don’t have a will or if you procrastinate and put off preparing or signing a will, there is still hope that your estate passes to your heirs as you intend.
If you die without a valid will, you are said to have died intestate. Since the majority of persons die without a will (it is estimated that only 25% of the population has a will), laws have been developed to deal with these situations. They are known as intestate laws.
Most states have enacted the Uniform Probate Code. Utah is one of those states. If you die without a valid will, there is a predetermined method for the distribution of your estate. Title 75 of the Utah Code contains the Uniform Probate Code.
Chapter 2 of Title 75 contains the code for Intestate Succession and Wills; Part 1 of Chapter 2 deals with Intestate Succession. This Part sets forth the rules on how your estate would be distributed if you die having no valid will.
In the preceding two paragraphs, I used the word “valid” to qualify a will. That is, not all wills are valid. Simply because you have a will, it may not conform to the formalities required by law. If your will is not valid, then it is as though you had no will at all. In that case, your estate follows the rules in Part 1, entitled Intestate Succession, and which states at its beginning:
“Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as provided in this title, . . .”
In the limited space allowed for this article, I am not able to fully treat the issue of how your estate would be distributed under intestate succession. However, I will attempt to provide a few highlights.
If you rely on the Probate Code for the distribution of your estate, you should first obtain a copy of it and study it carefully. The Probate Code is amended from time to time, and your understanding of it must be updated when changes are enacted.
First, if your spouse survives you and you have no children from any other spouse, other than the one that survives you, your entire estate goes to your surviving spouse.
Second, if you have children from a previous spouse, then your surviving spouse receives the first $50,000 of your estate plus ½ of your remaining estate. Your children then share equally in that part of your estate not passing to your surviving spouse.
However, the rules on distribution become a bit more complicated if two or more of your children fail to survive you. Distribution is made on the basis of “per capita at each generation.” What this means is that your grandchildren will be treated equally.
An example may help. Suppose that your spouse predeceases you. That is, she dies before you. Further suppose that you have four children, two of whom predecease you. Prior to their death, however, suppose that one of them had three children and the other had five children, representing eight grandchildren.
In this example, ½ of your estate would go to the two surviving children and ½ would go to the eight children of the predeceased children. Under the new “per capita” concept, all eight of your grandchildren would be treated equally. Under the old rule, replaced in 1998 and called “per stirpes,” your eight grandchildren would not have been treated equally.
If you don’t have a Will, you have no control over who takes charge of your estate. In contrast, if you have a Will, you can nominate the person you want to act as your Personal Representative and administer your estate.
Does this sound confusing? Well, it may seem so, but it generally works the way mostpeople would want their estate to be distributed. The better approach in planning your estate, however, is to rely on solid legal advice by contacting an Elder Law Attorney.
Gregory D. Roberts, CFP, CLU, ChFC, CLTC, EA
Aiken, South Carolina 39803
Asset-Based Solutions for Long Term Care Coverage are Gaining Favor
I recently came across some very enlightening statistics: The odds of a person in the U.S. being involved in a serious automobile accident are only 3 in 900 or 0.33%. The odds of having a residential fire in your home are 7 in 900, or 0.77%. The odds of ever being admitted to a critical care unit are 21 in 900, or 2.3%. Virtually every working American has insurance coverage to protect against these catastrophic occurrences, but only 5% of Americans has actually purchased long-term care insurance. What are the odds that we would ever need some sort of long-term care benefits? Would you believe that 70% of Americans who are currently age 65 or older will need some sort of custodial medical care before they exit this globe?
The question then becomes why only 5%, when the need is so apparent? In my view, there are two reasons. The first is the cost of long term care coverage. For example, a married couple, both age 55 in good health, would together pay about $2500 annually to provide enough policy benefits to cover home health/long term-care expenses in Aiken and in the CSRA. That required premium may be deductible as a medical expense, depending on the magnitude of other medical expenses you have in a given calendar year, since only those medical expenses in excess of 7.5% of your adjusted gross income are deductible.
If you have self-employed income that is greater than your long term care premium, the good news is that the entire premium is generally deductible for you.
The other reason why so few persons have actually purchased long-term care coverage is that if you don’t use it, you lose it. In other words, there are typically no refund options in older policies. Current long-term care policies do offer a return of premium option, but for an additional cost, which may make the overall cost prohibitive.
As a result of these two factors, most Americans have chosen to self-insure their future long- term care expenses. Actually, that approach is not that bad an idea, if you and your spouse have sufficient assets set aside to pay for future home health/long term care expenses. How much should you set aside? Well, the average stay in a facility or the average length of time one would require in-home care is about 3 years. In Aiken that length of care would cost in the neighborhood of $125,000-$150,000 in current dollars. But what if you or your spouse were to contract Alzheimer’s or dementia? Then, the period of confinement could be as long as 7-10 years, at $45,000 to $50,000 per year.
An interesting product solution is now available as an alternative for those who wish to self-insure against the costs of long-term care. That solution is an asset-based one, and it operates like this example: for a 65 year old female, who is able to reposition $100,000 of her assets, she could purchase a single premium life insurance policy that would provide her heirs a death benefit of $166,000. But this policy has two other great features: while she is alive, should she ever require home health care or long term care benefits, the policy would provide up to $500,000 for those expenses, provided that she could not perform at least 2 of 6 specified activities of daily living, such as bathing, toileting, dressing, eating and others. And the best part is that if this lady were ever to change her mind, this product provides an unconditional money back guarantee at any time. Sounds too good to be true, right?
Perhaps, but in order to qualify, this person must be relatively healthy; she must have the assets to re-position; and finally, she must actually purchase this policy. Believe it or not, there are several highly rated life insurance companies who offer products such as the one I am describing.
Check with your financial advisor and find out if he or she is acquainted with this dynamite method for providing long term care benefits.
Dennis B. Sullivan, Esq., CPA, LLM
Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates
888 Worcester Street, Suite 260
Wellesley, MA 02482
Member of the national ElderCare Matters Alliance
6 Mistakes Your Trustee Can Make That Can Spoil Your Trust
One may feel honored to be appointed as a trustee, but there are several legal duties and responsibilities the job carries with it. There are several ways a trustee can ruin a trust and destroy a beneficiary’s inheritance. This article will discuss some of the most common errors we see.
Error #1: Not Properly Accounting for Trust Records
Most states, including Massachusetts, require trustees to provide regular accountings to the trust beneficiaries; current, future, and potential future beneficiaries. These accountings must contain detailed records of all income received by the trust as well as all distributions the trust makes. While this task may seem simple, if the trustee mucks this up, even once, they leave themselves open to a potential law suit by beneficiaries, which they will be forced to pay for out of their own pockets.
To avoid this potential pitfall the trustee should consider hiring a professional CPA and/or attorney with experience in the field of trust administration. The trust records will likely be sufficient and the trustee, by hiring a professional, limits their personal liability for errors.
Error # 2: Failing to Diversify Investments
Many trustees decide not to reinvest trust assets, such as stock, that have served the trust well and earned a lot of money over the years. In cases where the trust holds stock in a company owned or run by the dearly departed the decision to reinvest assets can be even more difficult.
It is the duty of the trustee however to make sure that the trust’s assets are diversified and invested in such a way as to create income for the trust.
Investment management is the most litigated area of trust administration. The process can be long and difficult and lead to significant trust assets being spent on legal fees rather than being paid to beneficiaries. Following the Prudent Investor Standards set forth by the Center for Fiduciary Studies will help aid trustees in meeting their fiduciary investing responsibilities.
Error #3: Making Biased Distributions
Trustees owe a fiduciary duty to current beneficiaries as well as remaindermen (future beneficiaries). Many times, the interests of the current and future beneficiaries are not the same. Current beneficiaries may want to see the trustee invest in high yield securities while the future beneficiaries would like to see a safer investment with a lower yield. How does the trustee balance the interests of both parties? A a trustee, especially if they are a family member, may, knowingly or unknowingly make distributions in favor one beneficiary over the others. It can be especially difficult for a family member trustee to set aside their biases, but the trustee owes the same duty to all beneficiaries.
Error #4: Expecting a Pay Day
Some trustees believe that their role as trustee will lead to a quick payday. This is generally not the case however. It can take a lot of time and effort for the trustee to be paid because the process gives all beneficiaries the opportunity to voice their complaints about the job the trustee has done.
To avoid long arduous litigation, it is advisable that the trustee set up a schedule of fees, signed off on by all the beneficiaries.
Error 5: Having a False Sense of Security
The role of trustee carries with it unlimited liability. Anything that the trustee does improperly, whether it be on purpose or by accident or by simply not knowing their responsibilities, can lead to the trustee being sued and forced to pay damages out of their own pocket. The trustee can be liable not only for money lost due to their actions but also money that could have been earned had they acted correctly.
Many assume that because the beneficiaries are family members they will be insulated from being sued. The reality is however, that, many family member trustees end up in court. A trustee should never assume they will not be held liable for their actions simply because the beneficiaries are family.
Error 6: Not Knowing When to Go to Court
Trusts are often used to avoid the necessity of having to go to court to distribute an estate. There are situations when a trip to court can save the trustee a lot of trouble. If the trust documents are ambiguous and one course of action will benefit one group of people and another course of action will benefit another group of people, the trustee should not make a decision, because they are likely to end up in court explaining their decision. The trustee should file appropriate documents with the court and let a judge decide how to proceed.
Selecting a trustee who is experienced and financially savvy is important when considering who you should appoint.
Bart Delsing, Owner & Chief Operating Officer
FirstLantic Healthcare, Inc.
Delray Beach, Florida 33445
Member of the national ElderCare Matters Alliance
The Top Five Things to Consider When Choosing
Your Home Healthcare Provider
When faced with choosing a home healthcare provider, more often than not, it is a topic you have not discussed with your family and loved ones prior to the need for one. While one’s initial instinct might be to choose the first name that appears when you Google “home healthcare,” like all other good decisions, it is best to do your homework. All home healthcare companies are certainly not alike.
Home healthcare is typically skilled nursing and therapy services and often includes the need for other non-medical services that address functional needs of everyday living such as meals and grooming. This personalized care eases the anxiety and stress associated with most forms of healthcare and allows a maximum amount of freedom for the individual.
Given how critical it is to feel safe, confident and comfortable in your decision, look for these important factors prior to choosing.
Is the agency licensed and accredited?
Home healthcare providers that are licensed need to be so with at least one of the following accreditation organizations: Accreditation Commission for Health Care (ACHC), Community Health Accreditation Program (CHAP) or Joint Commission on the Accreditation of Healthcare (JCAHO). For hourly and live-in care, the agency must have a registered license in home health care with the State of Florida. Keep in mind that prior to July 1, 2010 not all home healthcare agencies were required to be accredited, but FirstLantic Healthcare chose to be accredited at the highest level with ACHC.
How long has the company been in business?
Well-established providers generally have higher staff retention rates than upstart companies and thus offer more experienced, trained caregivers. New home healthcare companies are popping up everywhere, everyday so it is highly important to make sure they have the proper accreditations and procedures in place.
Do they offer the types of services required?
Whether it is professional nursing or supportive services, a comprehensive home healthcare provider will deliver a wide variety of services, ranging from professional nursing to physical, occupational, respiratory, and speech therapies. They also may provide hourly and live-in home care services either at your home, assisted living facility, nursing home or even at the hospital. In addition, some home healthcare agencies, such as FirstLantic Healthcare, offer professional care management whereby care managers work privately and individually with each client and their families or loved ones to create a short or long term plan of care that meets the unique needs of each client. An individual may receive a single type of care or a combination of services, depending on the complexity of his or her needs.
What do others have to say about the company?
If a home healthcare provider has been around awhile, you should have no problem researching their reputation through the Better Business Bureau, local healthcare providers, and from friends and family. Check out their website for testimonials and/or call the agency to see if they offer a referral contact. It is important to hear that the company is reliable, and that the services they offer are delivered with professional, compassionate care that you deserve and demand.
Do they offer quality caregivers?
Proper screening of caregivers is critical to ensuring your safety. Make sure they have the appropriate, and most up-to-date, certifications and licenses for the particular care you require. There is no substitution for a professional, dedicated, and compassionate caregiver.
Once you have done your homework, you can feel confident moving forward on choosing the provider that aptly suits your needs and offers the most complete and personalized care for you or your loved one.
Lynn Harrelson, R.Ph., FASCP, Senior Care Pharmacist
8302 Cheshire Way
Louisville, Kentucky 40222
Member of the national ElderCare Matters Alliance, Kentucky chapter
Everyone who cares for todays’ seniors will eventually deal with the problems created by the medications that the seniors use. Some seniors have other watchful eyes on the medication they use. The general public is generally unaware that since Medicare was initiated in the mid-sixties that pharmacists have been federally mandated to review the medications of all Medicare patients residing in nursing homes or long term care facilities (LTCFs) across the country. Specially trained pharmacists review the use of each patient’s medications, how they are responding, train facility staff on proper dosing of medications, side-effect monitoring and documenting and they make recommendations to the prescriber for changes in orders or labs.
The role of the long term care pharmacist is extremely important in maximizing the benefits of the medicines that are used while avoiding or minimizing the risks from those same medicines. Today there are other pharmacists who provide that same detailed review and consults for seniors who continue to live independently in their community, in their home, at a retirement center or assisted living facility.
Today more seniors are taking increasing numbers of medications, these medications are more chemically complex. Seniors often use more than one physician and as they age, have many more medical conditions. Seniors also take non-prescription medications that a few years back required a prescription, counseling to assure better use and greater understanding of the side effects that could develop.
Studies have shown that if a senior takes 2 medications, the chances of a medication related problem is 6%, if they take 5, it’s 50%. If a senior takes more than eight medications, there is a 100% chance that they will experience a medication related problem. Eight (8) or more medications, that list of medications includes any prescription, non-prescription, over the counters, supplements, and nutritionals.
Although a medicine can make you feel better and maintain your health, we must be aware that all medicines have both benefits and risks. You are encouraged to visit my website for more details on medications related problems in the today’s seniors. Our first step in addressing this problematic issue is greater awareness of the problem.
William “Bill” Brown, Attorney at Law
2999 E. Dublin-Granville Road
Columbus, Ohio 43231-4030
How unusual family situations can be addressed by living trusts
Living (revocable) trusts can address unique scenarios for people that need to have their questions answered regarding significant issues, such as a disabled or handicapped beneficiary, a son or daughter who refuses to get a job or needs educational assistance. What if the parents own a vacation or secondary home? A properly drafted trust can address these matters.
The Spendthrift Son
The trust may be revocable, or irrevocable and funded during the parents’ lifetime. Direction to the trustee may provide that the beneficiary only receives trust funds (dollar for dollar) based on trustee satisfaction of W-2 or 1099 forms for the previous year. Distribution should be related to the amount of effort expended in the business or profession of the child’s choice.
Disabled or Handicapped Beneficiary
There are three basic types of trusts to cover this situation.
A revocable trust that contains language giving the trustee the ability to shut off distributions to a handicapped beneficiary and will not interfere with Medicaid or Social Security eligibility payments. This has been referred to as the “spigot test”. The beneficiary is to have his supplementary needs met over and above those paid for by state or federal benefits.
A second type of trust is a Supplemental Needs Trust that must be irrevocable and not terminate before the beneficiary’s death according to latest issues of the Social Security Administration Program Operation Manual (POM). In many states, law has codified the “spigot test”. See Ohio Revised Code ‘5111.151 (2004).
A third and seldom-used trust has been enacted by some states called a Supplemental Services Trust. See Ohio Revised Code ‘5815.28. There are limitations on its use. For instance the maximum trust principal must be under two hundred thousand dollars ($200,000). The trust must have a “pay back” to the state of at least 50%. This trust may be useful if the beneficiary qualifies, developmental disabilities, mental disabilities, or eligibility through the Ohio Department of Mental Health, a board of alcohol and drug addiction or mental health services. Ohio Revised Code ‘5815.28 (B.)
Finally, if a beneficiary is disabled and is under 65 years of age, a Special Needs Trust may be allowed. See 42 U.S., C.A. ‘1396p (d) (4)(A), or applicable state statues. It is a Medicaid “pay-back” trust that must guarantee that upon the death of the beneficiary all of the remaining funds (up to the amount paid by Medicaid) must be returned to the governmental agency making payments. A probate court, guardian, or parent of the beneficiary initially may set up this trust.
Many people wish to set aside funds for the higher education of their children or grandchildren. An education-specific trust can restrict use of trust funds to the costs of college, university or trade school tuition, books, fees and supplies if the beneficiary is regularly enrolled, and restrict principal distribution until a baccalaureate degree is obtained. The trust should be irrevocable in order to be funded each year with the annual gift tax exclusion (currently $13,000 per person) and provide the trustee with an ability to withhold distributions if the beneficiary has a substance abuse problem, is involved with potential litigation, is attached to a questionable religious organization, or is physically or mentally impaired, affecting the beneficiary’s ability to manage a distribution.
Secondary or Vacation Homes
Occasionally on the death of a spouse, the surviving spouse will own a vacation home. The couple may have a number of children, one who doesn’t partake in the activities the secondary home was set up to offer, or can’t afford to maintain a home. A specific trust for this kind of property can avoid arguments between the children, fund the costs of maintenance for years, determine permitted use and terms of selling or buying out a sibling’s interest. Such a trust keeps peace in the family and provides direction, particularly if the secondary or vacation home has passed down through a number of generations.
Finally, there are many unique situations that may be addressed using trusts and issues solved with proper estate planning, advice and direction.
Sheri Samotin, President
LifeBridge Solutions, LLC
999 Vanderbilt Beach Road
Naples, Florida 34108
Taking Charge Without Taking Over: Five Tips For Helping Your Aging Parent
Whether you are teaching your young daughter how to knit, or helping your aging mother balance her checkbook, how do you take charge without taking over? How many times have you found yourself “showing” someone how to do something by doing it for them? It’s human nature. But while it might make sense to show by doing when you are “teaching” someone younger or less familiar with a particular topic than you are, it usually leads to anger when you do this when you are “assisting” someone with a task that he previously has been perfectly capable of handling himself.
It was probably hard enough for your mom to agree to let you help her pay her bills and balance her checkbook. And even once she agreed, it wouldn’t be surprising if she told you that she didn’t know why you were insisting on helping her since she is perfectly capable of doing it herself. The truth is that acknowledging that you need help with the business of life is really, really hard for most seniors. If they come to the point where they need your help, they are confronted with their own limitations. And those limitations won’t “get better” in most cases. Deep down, your mom knows that this is the beginning of the end of her independence as she has come to know it.
So, how do you take charge without taking over?
Sometimes, no matter how you approach the situation, you’ll find yourself in a confrontation with your Mom or Dad over how to best care for them. At these times, you and your parent might find it helpful to talk with an objective third party such as a family transition coach who can shed new light on the situation. Your job as your parent’s caregiver is to keep them safe, comfortable, and happy. As long as you keep that in perspective you should have no trouble taking charge without taking over.
John E. Settle, Jr., Esq.
John E. Settle, Jr., Attorney at Law
1915 Citizens Bank Drive
Bossier City, Louisiana 71111
Member of the Louisiana chapter of the national ElderCare Matters Alliance
The Internet and Elder Law
In the words of Charles Dinkens, “it is best of times, and the worst of times” when one thinks of using the internet to get answers to important questions on law, medicine and/or investments. The internet is one of the most important developments of modern civilization, and not a day (Q: hour?) goes by without more expansion, and sometimes invasion, by internet “tools” that are supposed to make our lives better.
As an attorney who has practiced more than thirty years, I always welcome a client who has some knowledge on the topics that are the subject of my consultation – – be it from a neighbor, his uncle Charley or a jailhouse lawyer. Generally it is fairly easy to have a client focus on my education and experience versus these “sources” of law. However when it comes to “internet law” it is often much more difficult to rebut, differentiate or explain the “real” law versus PC downloads.
Unfortunately, a false sense of authenticity is often given to internet documents – – without serious inquiry as to who put this information on the internet. Many individuals do not realize /understand that the internet is not like Encyclopedia Britannica, and that there is no scholarly screening body/agency to ensure accuracy of what can be found on the “net”.
When presented with an internet Will, Trust, Power of Attorney or any other legal document, I always ask my client the following questions:
1. Do you know if this document is drawn in accordance with the laws, and legal requirements of your state of residence?
2. How do you know if this is the document(s) you really need?
3. And who are you going to complain to if you utilize this document and it doesn’t “work” the way you intended?
It is important for all seniors to know that the laws of each State on inheritance – – with or without a Will – are generally quite different, as well as the requirements for proper execution of the Will. Furthermore, generic powers of attorneys can sometimes cause challenges, especially in the area of health care. Similarly, the so-called advantages of a Living Trust to transfer assets after death vis a vis a Will are generally overstated, and frequently do not obviate the need for succession proceedings to be instituted to transfer title to real estate.
The same is true for Medicaid eligibility, and what the maximum reliable assets can be owned by the senior seeking Medicaid assistance and/or the senior’s spouse. There are fifty different sets of Medicaid rules – one for each of the fifty states in the union. Thus much of the “water cooler” scuttlebutt about Medicaid eligibility is just that – – misinformation.
The internet is a great tool for learning, but it should not be considered to be the expert on life and death planning documents. The one size fits all mentality of most internet articles and legal forms on the internet are trips for the unwary. Seniors should seek the advice and counsel of licensed attorneys in the state of their residences. After all, an actual dialogue with an individual is much better than reading a computer screen when making major life decisions.
Angela N. Manz, Attorney at Law
The Law Office of Angela N. Manz
Virginia Beach, Virginia 23452
There are several government benefits available to seniors who need help paying for extended care. However, the qualifications and requirements for these benefits can often be complicated and confusing, leaving many people unsure of how to qualify or whether they are applying for right benefit for their family.
When seniors and their families first meet with me, I like to find out about their current care needs, how much they are paying for care, their income, and their concerns for the future. This helps me determine whether they are eligible for the VA pension or Medicaid and allows me to focus on any future family changes or problems that we may need to plan for. After we talk about their concerns, I help the family match their care needs with their financial situation and create a plan that will preserve their assets, protect their family and get them the care that they need. Every family is unique and the plan for your family should be unique as well.
Two of the most important benefits available to seniors are Medicaid and the Department of Veterans Affairs (VA) Aid and Attendance Pension. While the programs may seem similar, the eligibility requirements and the benefits are quite different.
VA Aid and Attendance Pension
The VA pension is available for veterans and their surviving spouses. It pays a monthly dollar amount and that money can be used to help pay for a nursing home, assisted living rent, adult day care, in-home care, including when a child is caring for a parent, and other medical expenses. For a married veteran, the maximum pension is $1,949 per month. A single veteran may receive a maximum of $1644 per month and a surviving spouse may receive $1056.
In order to be eligible, the veteran must have served 90 days of active duty in the military, with one day during a period of wartime. The VA has established specific dates that constitute a “wartime period,” but generally veterans who served during World War II, the Korean War, the Vietnam War, and the Persian Gulf War will be eligible. Veterans also must not have been dishonorable discharged.
Next, the veteran or surviving spouse must show that they need the assistance of another person in order to perform daily tasks, such as eating, bathing, dressing, cooking, taking medications, or driving. Veterans and surviving spouses needing assistance or a protective environment to stay safe because of dementia may also qualify for the benefit.
Finally, in order to receive the pension, all applicants must meet the asset restriction. Unlike Medicaid, the VA does not have a set asset limit for this pension. Instead, the VA will look at many factors to determine if assets are too high. The VA does not include the value of the home or a car.
Even though there is an asset limitation, the VA does not penalize for transferring assets outside of the veteran or spouse’s name, if done correctly. This means that there are many planning options available to help families become eligible for the benefit. However, you must be careful. When assets are transferred to secure eligibility for VA benefits, the family must have a plan ready in the event that their loved one needs Medicaid in the future to pay for extended nursing care. Medicaid imposes a penalty for assets that are gifted away or moved into certain types of trusts and I strongly suggest that you work with an experienced elder law attorney before making any gifts or transfers.
When should you consider VA Aid and Attendance?
I generally recommend that families apply for Aid and Attendance when they have medical expenses that exceed a large portion of their income and using the pension would help bridge that gap. For example, if Mom and Dad have a monthly income of $2,500, and they move into an assisted living facility that costs $3,500 per month, I would recommend that they apply for the VA pension. For a married veteran, the maximum pension is $1,949 per month. Therefore, the VA pension, combined with their income, would give them enough money to pay for their assisted living community. Further, in many states there is little or no Medicaid help for assisted living, making the VA benefit even more valuable.
What if your loved one is in a nursing home? Typically, the cost of nursing home care is often so high that the VA pension does not pay enough to cover that cost, even when combined with your loved one’s monthly income. However, if your parent is going through a Medicaid penalty period or needs time to spend down assets before he can be eligible for Medicaid, the VA pension can be of great help during that transitional period.
What is Medicaid?
While Medicaid is also designed to help with the cost of long-term care, it differs from the VA pension. Medicaid does not pay a monthly pension. Instead, Medicaid directly pays the care provider, i.e. the nursing home.
Many people believe that they can only get Medicaid once they have spent all of their money in the nursing home, but this is absolutely not true. To be eligible for Medicaid, the applicant may only have $2,000 in countable assets. However, not all assets are “countable” assets. In Virginia for example, non-countable assets include up to $2,000 cash, your home (under certain circumstances), one car, personal property, certain funeral and burial funds (including a pre-paid funeral or burial), certain property used in a trade or business, some life insurance (up to $1,500 cash value), and certain annuities.
Further, even though the Medicaid applicant may only have $2,000, we still have many options for legally sheltering and protecting assets. Unfortunately, Medicaid does not pay for everything that someone needs while they are in a nursing home. Therefore, it is important to be able to keep some assets for the benefit of the Medicaid applicant so that they can have what they need, as well as those things that bring them comfort and enjoyment. Typically, a married couple can protect most, if not all, of their assets and have one spouse become eligible for Medicaid. A single person can typically protect half of their assets and then become eligible Medicaid. Never assume that your parent or loved one is not eligible.
When should you consider Medicaid?
I typically recommend Medicaid when someone needs extended care in a nursing home. This is because the cost of the nursing home is generally so high that the person’s income, even coupled with the VA benefit, is not enough to pay for the care without depleting their assets.
I may also recommend Medicaid for home care when the household income is high, but the person requiring care has a low income. The VA considers the total household income, while Medicaid typically only looks at the income of the person needing care. For example, if Dad has a monthly income of $4,500, and Mom’s monthly income is only $500, it may not be wise to apply for the VA pension. To get VA benefits, Mom and Dad would have to spend a large amount of their income each month on Mom’s care. If they can’t afford that much care or if Mom doesn’t need that much care, I may recommend that Mom apply for Medicaid home care benefits. Because Medicaid only looks at Mom’s income, in many states Mom would qualify regardless of Dad’s high monthly income. However, it is important to make sure that Mom still meets the asset requirement for Medicaid, which may require sheltering assets before she could become eligible.
While these benefits are complex, they can be a tremendous help for your family and you should never assume that your loved one cannot qualify. Caring for a senior parent can be difficult, but taking the time to fully explore all of the benefit options is worth the effort so that your loved one can preserve their assets, protect their family and get the care they need.
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