Elder Law

Even though some seniors may be entitled to home care through their Medicare benefits, it may be impossible for them to receive this needed care.

And that is why most people plan for Medicaid - not because they are trying to cheat the system, but because they have no other real choice. 

http://www.
Read more . . .

The word “Irrevocable” usually implies no ability to change. Most people believe that the Trustee is required to adhere to the wishes of the Trust’s creator, even though the times and circumstances have changed. Nonetheless, that is no longer true in the case of New York State.

There are two circumstances where an Irrevocable Trust may be changed or revoked.

The first circumstance exists when the Grantor of the Trust is still alive, wants to make a change and ALL the beneficiaries of the Trust agree with the proposed change.

1. Location of Siblings. It is often the case that one sibling provides care and support for an aging parent, while other siblings are distant (either physically or psychologically). While the local sibling provides support, that same sibling may also control the parent’s finances. The same sibling may also bring the parent to an attorney to get his affairs in order.

When a couple owns a pet, the owners can assume that the survivor will continue caring for their pet (although that’s not necessarily true, at least in my own situation). What happens when a single person owns a pet? In 49 states (Minnesota is the only state that does not permit this) you can now create a pet trust.

A pet trust permits the grantor to set aside a certain amount of money to care for the pet upon the owner’s disability or death. The trustee of the trust will make regular payments to the pet caregiver. The grantor can make specific instructions regarding the care of the pet, including shelter, feeding and veterinary care.
Read more . . .

An Executor is the person named in the Will who ensures that deceased person’s wishes are carried out after death, that all the assets are found, that all the debts are paid and all the money is distributed according to deceased person’s wishes.

Responsibilities: The duties of an executor include: finding the Will, hiring a probate lawyer to put together a probate petition (including getting all the signatures from all the necessary parties), filing the petition and the Will with the court in order to be appointed as an Executor by the court, appearing in court (if necessary), notifying credit cards companies and banks about death, setting up an estate bank account, filing an inventory of assets with the court, carrying out the wishes of the decedent (including selling the real estate and other assets, if necessary), paying all the necessary income and estate taxes, and distributing the assets to the beneficiaries.  

Who should you name: as you can see, the probate process can be long and complex. The executor should be someone responsible and capable of handling such a task. Usually people name relatives or friends, because they know that the person will carry out their wishes.

Now that the “file and suspend” loophole has been eliminated (effective April 30, 2016), what other strategies remain for maximizing one’s social security payments?

1.   The main strategy is, of course, to delay the receipt of social security. At full retirement age, a worker is entitled to receive 100% of his Social Security retirement benefits. However, for each year that the worker delays the receipt of his benefits, he will receive an 8% delayed retirement credit. At age 70, however, one cannot delay any further and is obligated to receive the income. As a result, if the worker delays the receipt of his benefits until age 70 his benefit will increase by a total of 32%.

Of course, the downside of this strategy is that during the years that the worker delayed the receipt of his benefit, he was not receiving any payments from Social Security.  As a result, this strategy only works for people who have an alternative source of income during these years of deferment, either through continued employment or through savings.

Furthermore, this strategy works only for workers who are in relatively good health and expected to live for a long period in retirement.  If the worker develops an unexpected illness and dies sooner than he expected, the overall receipt of money will be significantly less than if he had chosen to receive full retirement benefits at full retirement age.

2.   Another strategy involves survivor benefits. Depending on the survivor’s work record, the survivor has a choice. She can either (i) receive full survivor benefits at age 60 and delay the receipt of her own larger benefit at the age of 70 or (ii) take her own benefits at the age of 62 and then switch over to survivor benefits at full retirement age.

3.   Yet another strategy involves benefits for divorced spouse. As long as the spouses were married for at least 10 years prior to divorce, and the individual has not remarried, the ex-spouse may claim spousal benefits based on an ex-spouse’s earning records. This strategy may be very beneficial, as the ex-spouse may claim her spousal benefits at full retirement age and delay the receipt of her own retirement benefits until the age of 70.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING

A researcher at Ohio State University found that Americans who receive an inheritance save about half of it and spend, donate or lose the rest. However, almost 30% of Americans who receive the inheritance had negative savings rate within 2 years of receiving the inheritance, meaning that they spent it all.

There are strong similarities in these spending habits with people who receive lottery winnings. Apparently, lottery winners save only 16 cents of every dollar won and have dramatically higher bankruptcy rates within 5 years after winning.

Of course, the inheritance that people receive may not be a large amount of money. The median inheritance for the past 30 years was $11,340. For those people who inherit $100,000 or more, the percentage of people who spent it all within two years dropped to 19%.

If you receive an inheritance (or a lottery winning) – be careful. I’ve seen bad financial advisors who have only their own interests at heart. I’ve also seen bad “friends” who convince unsophisticated people to invest in their ‘brilliant’ business schemes. There is no perfect answer about what to do with the money. But not spending it immediately would probably be the best advice!

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING

Medicaid imposes a transfer penalty that can last for up to 5 years for all uncompensated transfers made prior to the application for nursing home Medicaid. This provision makes crisis planning for nursing home not efficient. Yet many people are reluctant to transfer their assets ahead of time and impoverish themselves, because, of course, no one knows when nursing home will be needed.

One way of avoiding the nursing home penalty is to prove to Medicaid that the transfer was made not for the purpose of Medicaid giving. For example, grandmother has a history of gifting large amounts of money to grandchildren, and continues doing so for several years while being in good health. If, at some point, she has a stroke and has to go to a nursing home, Medicaid will deny her application, claiming that the money gifted was an uncompensated transfer. The family can then appeal and try to prove to an administrative judge that the transfers were done while she was in good health and not as part of Medicaid planning.

This is an affirmative defense, meaning that the burden is on the family to prove their point, not on Medicaid to prove the opposite. If there is no evidence that grandmother was in good health while gifting the money, and if there is no pattern of gifting the money, the petition will likely be denied.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING

A nursing home is prohibited from requiring a third party to guarantee payment from his own funds to the facility as a condition of admission or continued stay of another party. Any attempt by the nursing home to do so is a blatant violation of the law, and may be reported to the local District Attorney’s office.

On the other hand, a nursing home may require an individual who has legal access to the resident’s income or resources to sign a contract to provide payment from the resident’s income or resources for such care. An individual can have access to resident’s income and resources through a Power of Attorney, a joint bank account or through an appointment as Guardian.

If an individual signed a contract to provide payment to nursing home from the resident’s income or resources, and then that individual breaches this contract, then a nursing home may institute a cause of action. The individual may become personally liable for the cost of care if the resident’s funds were misspent and were not turned over to nursing home, as required.

 Nonetheless, very often certain nursing home facilities are in high demand and there is a waiting list. The chances of an individual’s acceptance into a particular nursing home may be greatly enhanced by some private pay in advance.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING.

Many seniors are not aware that Medicare does not pay for custodial long term care. An individual suffering from Alzheimer’s disease or dementia, which requires assistance with feeding, bathing, and taking oral medications will not be covered by Medicare not by a Medigap insurance. The only way of paying for custodial long term care are: private payments, Medicaid, or Long Term Care Insurance.

Long term care: this is care that can be provided in the home, in a nursing home or in an assisted living facility. Eligibility for benefits is based on medical necessity as evidenced by an individual’s inability to perform a specified number of personal functions (activities of daily living): bathing, toileting, dressing, self-feeding, lack of mobility or loss of cognitive capacity.

Home Care: Most long term care insurance policies have a home care component. It is usually beneficial for an elderly person to continue to reside at home: familiar surroundings, familiar people and familiar foods provide comfort and control. The long term care insurance policy can pay for the number of hours required by the patient. This is a large improvement over Medicaid: individuals relying on public programs (Medicaid) frequently find that the number of hours authorized may be significantly less than what is required for the individual’s health and safety.

Coverage Provisions: These vary, depending on the need and the willingness to pay. In New York, a policy must offer at least 24 consecutive months of coverage. Each policy generally provides for a specified payment level, based on whether care is received at home, in an assisted living facility or in a nursing home. If the cost of care exceeds the policy benefit, the full benefit will be paid. If the cost of care is lower than policy benefit, the actual cost will be paid. Most policies contain a deductible, usually measured in days. The benefit period can be as short as two years, and as long as the life of the insured, with everything in between.

Exclusions: certain conditions are excluded by long term care insurance policies. These are, among others: alcoholism and drug additions, attempted suicide or intentionally self-inflicted injuries, mental and nervous disorders (except Alzheimer’s disease or demonstrable organic brain disease).

New York State Partnership for Long Term Care

These are specific long term care insurance policies approved by the New York Partnership policy.

Under a Total Asset Protection plan, the insurance policy will pay for the first three years nursing home care or six years of home care or a combination of the above (where two home care days are equal to one nursing home day). Individuals who have received these specified Partnership long term insurance benefits may apply for Medicaid and be eligible without regard to the value of their assets. Individuals may sell, transfer spend or retain assets, before during and after applying for Medicaid nursing home care – the penalty period does not apply. However, the Medicaid income levels will still be applied.

The policy premiums depend on age and coverage chosen. The Partnership policies are generally slightly more expensive than other policies. Annual premiums for a basic policy can range from $2,800 for a 40 year old to $13,000 for an 80 year old. However, the benefit is the ability to apply for Medicaid without transferring assets. All aspects must be considered and analyzed before a decision is made.

Disclaimer: This article only offers general information.  Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions.  As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship. ATTORNEY ADVERTISING.