Elder Law Today Podcast

How Do You Know if You are Getting Accurate Medicaid Information?

Elder Law Today — Mon, 9 Nov 2009 11:00:00 GMT

How many times have you contacted a government office to inquire about some benefit or program and told you are not eligible? Have you then left the office or hung up the phone accepting that what you have been told is true? What if that is just flat out wrong? As an elder law attorney I see that happen all the time, especially when it comes to the Medicaid program. A recent court case last week corrected at least one of those untruths.

A federal court last week finally weighed in on a particular exception to the Medicaid transfer rules that the State of New Jersey has, for some time, misinterpreted. A transfer of assets from parent to child, if made within 5 years of the date of application for Medicaid benefits, carries a Medicaid penalty, but there are some exceptions to that general rule. If the transfer is made to a child, or to a trust for the benefit of the disabled child, then that transfer is not subject to a Medicaid penalty. The State has for as long as I can remember, insisted that this exception applies only if the transfer is to a trust for the sole benefit of the disabled child.

Now, if you are not familiar with the ins and outs of the Medicaid laws, and were told that your mother is ineligible for this reason, what would you do? Probably go home and wait till the Medicaid penalty expires, not knowing any better. My staff has reported back to me on some of our cases the same thing. I then have to go back to the federal law and state regulations interpreting that law to find the exact sections that support our claim. Sometimes that is enough to resolve the issue, but other times, such as in the case of Sorber v. Velez, the case decided last week, the State doesnât budge and we, as elder law attorneys, have to resort to the court system to settle the dispute. In the Sorber case, the issue came down, in part, to the type of grammar lesson you might remember from elementary school about the proper placement of a comma. The Stateâs interpretation didnât seem logical and the court agreed.

One of my staff asked me the other day why the State would take a position that seems so farfetched. The answer, I think, can be found by looking at the bigger picture of what is playing out in this country. The government doesnât have enough money to fund the programs and services it currently has. Looking at whatâs coming, the number of people facing a long term care crisis will continue to increase in the next 20 years as 77 million baby boomers reach senior status. So, you can expect the State to continue to interpret eligibility standards very strictly. And sometimes theyâll get it completely wrong. Thatâs why the âdo it yourselfâ approach is dangerous. You could be losing valuable benefits and without the assistance of someone with knowledge of the laws you wouldnât even know it. The government wants to push you to the back of the line. Make sure you protect yourself and fight to maintain your spot at the front .

Mary's Worst Home Care Nightmare

Elder Law Today — Mon, 2 Nov 2009 11:00:00 GMT

For many families, keeping their elderly loved one at home will require in home assistance. There are many quality home health care companies in the area so finding one isnât a problem. But I find so often that clients donât go through a licensed agency because of the cost. While I have written in the past about the Medicaid problem of hiring aides directly and paying cash (7/20/09 post), there is another very real risk, safety. The following story is one, unfortunately, I have heard more than once.

Mary found an aide to care for Dad through an agency she had learned of from a friend. I know many of the quality licensed agencies in the area but had never heard of this one. Mary paid a fee to the agency, who sent an aide to her dadâs home but her financial dealings with the agency ended there. She paid the aide directly in cash. I cautioned Mary that she didnât really know anything about the agency or the person they were sending but she said she interviewed the woman, who seemed pleasant enough. And Mary was in a bind because Dad had run out of money so she was paying out of her own pocked. Now the aide she had found herself and whom had stayed with Dad for 3 years was going back to her native country. Mary needed to find someone quickly and cost was a real issue.

What happened after one month was Maryâs worst nightmare. On one of her daily visits to Dadâs home she found him bruised and battered, in a semiconscious state. He had been beaten by the aide, who claimed not to know what happened. Mary called the police. They immediately arrested the aide and Dad was transported to the hospital.

Upon further investigation, Mary discovered that the agency was neither licensed nor insured. The owner disappeared, probably to reappear under another agency name. And unfortunately Dadâs injuries were of a severity that he could no longer stay at home, but needed nursing home care. Mary felt terrible, but her predicament is hardly uncommon. When trying to make ends meet safety was compromised. Bringing a complete stranger into a home to care for a defenseless senior should not be taken lightly. Background checks must be done. Training is important. There is a reason going through a reputable agency is more expensive.

However, if a long term care plan had been put in place, well before Dad needed care, perhaps Mary would not have been strapped for cash. Dad would have the money to pay for his own care, maybe government benefits could have been tapped to help out. Mary would then have hired the licensed agency, safety precautions would have been taken, and a tragedy could have been avoided.

How Can the Government Tell Me I Canât Help My Family? (Part 2)

Elder Law Today — Mon, 26 Oct 2009 10:00:00 GMT

Letâs pick up where we left off with Mary. Her son, Jim is unemployed and Mary has been giving him funds totaling $50,000 over the last 6 months to help him pay his bills. And she intends to continue doing so until he finds a job. While Mary is 70, healthy and not thinking sheâll ever need long term care, I explained to her that if her health takes a turn, the transfers to Jim will make her ineligible for government benefits should she run out of money. That is a very real possibility, with the cost of care currently averaging over $100,000 per year in her area. So what can we do?

We can set up a trust to which Mary transfers assets. The trust then provides the funds to Jim. Now, you may be thinking, âdoesnât this create the same problem Mary already has by giving Jim money each month or two?â Yes, but by having Mary transfer the money in one lump sum Medicaidâs 5 year lookback is applied one time so we know when it will expire. If she transfers a little bit at a time Mary creates a new 5 year lookback for each separate transfer. But isnât there a potential Medicaid penalty when the trust gives money to Jim? No, because Medicaid only looks at Maryâs transfers, not the trustâs.

Some may read this and conclude that this is just a way for Mary to avoid using her money for long term care and have the government pay her bills instead. But is that really what is going on here? Cleary not. Mary isnât even thinking about long term care (although she clearly needs to). Through the use of a trust she can accomplish both goals, helping her son get back on his feet and providing for her own needs. If she gets sick sheâll definitely need to use some of her funds for her own care but when she spends down completely, if done properly, she will be ready for Medicaid. And that benefits not only Mary, but also the providers of her care who will receive those benefits, whether it be a nursing home, assisted living facility or home health care agency.

The long term care provider will know that after Mary spends down her assets she will qualify for Medicaid without any surprise ineligibility periods imposed by Medicaid. And Mary will know that she can be there for her family and still meet her own needs. Mission accomplished.

How Can the Government Tell Me I Can't Help My Family?

Elder Law Today — Mon, 19 Oct 2009 10:00:00 GMT

Mary had been reading my blog posts for some time now about the need to plan ahead for long term care. Something struck a chord with her and she called. She has a home and about $200,000 in investments. While still healthy, she is 70 and thinking about the future. I then asked her if she had made any gifts to her kids or grandkids. She replied, âNo gifts but I am helping out my son Jim a little bit because he has been out of work for 6 monthsâ.

âWell, Mary, actually, the money you are giving your son may disqualify you for government benefits down the road, should you need themâ, I explained. Mary became exasperated. âJim has had such a tough time finding a job in this economy. How can the government tell me I canât help my family when they are in need?â The reason for this, if you have been reading my posts over the past number of months, is the Medicaid spend down rules. The government wants you to spend your money on your own long term care first, before asking for assistance.

Now, not all your money must be spent on long term care. But it must be spent in such a way that you are getting something of equal value back. Mary heard this and in an exasperated tone cried, âwhat could provide me greater value and satisfaction than helping to keep a roof over my son, daughter-in-law and grandchildrenâs heads and food on the table, until Jim can get back on his feet? My parents helped us out when my husband lost his job. In tough times our family has always pulled together and pitched in. Jim is a good son. He just needs a break.â

While you and I may view Maryâs help as essential and proper, unfortunately the government does not. Mary estimates that she has given Jim $50,000 over the last 6 months and intends to continue to do so. Right now, however, she has a potential Medicaid penalty of about 7 months and that will only increase if she continues to advance funds to Jim.

Mary is really getting agitated now. âSo are you telling me I have to stand by and watch Jim lose his house -- that I canât do anything?â âNot at allâ, I replied. âYou can be there for Jim, but we have to do it in a way that wonât create long term care problems for you down the road.â In next weekâs post Iâll share with you what I told Mary.

I Don't Have an Estate Tax Problem --- Do I?

Elder Law Today — Mon, 12 Oct 2009 10:00:00 GMT

A few months back I wrote about how estates up to $3,500,000 are not subject to federal estate tax and that the tax will be eliminated in 2010. For this reason, when people call our office to discuss estate planning they will often begin by saying that they are not concerned about estate tax. I have to correct them, however, because most states have their own estate tax that may kick in on smaller estates where the federal tax isnât a concern. So, how big might such an estate tax bill be?

First, a little background. Under the previous law, Congress permitted a dollar for dollar credit towards the federal estate tax for any state estate and inheritance taxes paid up to a certain limit. So, many states established their estate tax structures to âsoak upâ the maximum credit that Congress permitted. In essence, the federal government shared a portion of its tax revenue with the states. When it raised the federal exemption, however, Congress decided it could no longer share a smaller tax revenue with the states so it phased out this credit. Many states, in response, changed their tax laws to preserve their revenue stream. New Jersey now has an estate tax that kicks in on estates greater than $675,000 and New York on estates greater than $1,000,000.

New Jerseyâs estate tax starts out at 4% and gradually increases to a maximum of 16%. New Yorkâs estate tax also maxes out at 16%. As I explain to our clients, we usually see federal estate taxes in the six figure to seven figure range and state estate taxes in the tens of thousands of dollars on the low end, and hundreds of thousands of dollars on the higher end.

What can you do to reduce, or even eliminate this tax? Well, for starters, in the case of married couples, a bypass or credit shelter trust should be employed. This will save substantial amounts of tax that would be paid by children at the death of the second parent to die. But you must have this trust set forth in your will before you pass away.

What if that opportunity has already passed? Purchasing life insurance to pay the tax is another solution, which may be especially desirable where the estate consists of real estate that the family doesnât want to sell just to pay the tax. And, placing that insurance in a life insurance trust is usually a good idea. Otherwise, you end up paying estate tax on the life insurance that you bought to pay the tax in the first place.

New York's New Power of Attorney - What Does it Mean for You?

Elder Law Today — Mon, 5 Oct 2009 10:00:00 GMT

On September 1, 2009 New Yorkâs new power of attorney law became effective. There has been much written about it. The intent of lawmakers was to correct the financial abuses that seem to increase in frequency, probably due to the aging of our populace. As with any new law, however, what lawmakers envision and what actually occurs often differ greatly. But, what does the new law mean for you?

First, letâs run through the major changes. One of the biggest changes is the creation of a âstatutory major gifts riderâ. This is a document separate from the power of attorney that specifically authorizes major gifts and other transfers (defined as greater than $500 per person per calendar year). No longer can the principal (the person executing the power of attorney) authorize gifts in the body of the power of attorney document. This will impact many long term care plans in which assets are placed in trust, for example. If the principal can no longer make the transfer and a child, as agent under power of attorney, needs to complete that transaction, New York law now requires this separate rider.

A second important change focuses on the execution of the document. Now the principal and the agent must sign the document in front of a notary and two disinterested witnesses. The signings need not, however, occur at the same time. The agent may sign at a later date than the principal.

A third major change is one that at first might not seem like much. Any new power of attorney automatically revokes all previous power of attorney unless the principal expressly states otherwise in a special âmodificationsâ section. This could really wreak havoc upon estate and long term care plans. Think about it. How many times have you gone into a bank and executed a limited power of attorney appointing a family member as agent for a particular account? If that document doesnât expressly state your wish not to revoke your general power of attorney or any other limited power of attorney that you signed previously then they all are revoked. What if the bank employee doesnât point this out to you? They may not even be aware of this provision.

It will be interesting to see what impact the new law will have. Will it correct financial abuses of the elderly? Will it be too restrictive and hamper families in their ability to care for elderly members? Will there be any unintended consequences that nobody foresaw? And will other states follow suit? One thing should be clear. Consult your elder or estate planning attorney before you execute any other powers of attorney.

Should I Take Social Security Early or Not?

Elder Law Today — Mon, 28 Sep 2009 10:00:00 GMT

One of the more common questions asked of me is âshould I take Social Security early?â. The questioner is referring to the ability to take Social Security as early as age 62, rather than waiting till the full time retirement age of 65. (By the way that age gradually increases for those born after 1937 until it reaches age 67 for those born 1960 or later.) Taking early Social Security reduces your monthly payment by Â of 1 percent for the number of months before age 65 you start those checks coming. If you enroll at age 62 you will get roughly 75% of what you would receive at age 65. Ok, those are the basics. So, whatâs the answer?

Well, it depends. There isnât a âone size fits allâ solution here. But letâs analyze this a bit. One consideration is going to be, âHow long do I think I will live and what is my break even point?â For example, if I wait until age 65 to take my benefit how long will I need to live before I come out ahead by giving up a lesser benefit at an earlier age? That may also be impacted by what I do with the money if I take it early. If I have sufficient other income and I invest the Social Security that will affect the calculation.

But, wait. Thatâs not the only consideration. If I am still working when I take an early benefit I can lose some of that Social Security if my income exceeds a certain level (this changes from year to year). And, what about my spouse? When one spouse dies, the surviving spouse is entitled to receive the larger of the two checks. So that may work into this as well.

As you can see, there are many things to consider. There is a certain amount of guesswork involved as well. The best answer I can give, however, is to consult with your professional advisors â financial, tax and elder law â to run some numbers. What is best for you will most likely not be best for the person seated next to you. There are just too many variables for there to be one right answer. But, one thing I can unequivocally say is that you should ârun the numbersâ before you reach age 62. It might be right for you and you wouldnât want to pass up that opportunity if it makes financial sense.

NFL Seat Licenses and Medicaid -- Huh?

Elder Law Today — Mon, 21 Sep 2009 10:00:00 GMT

I met with a family with the following scenario. Dad needed nursing home care and the family had done no long term planning. We talked about how under Medicaid rules the coupleâs assets would be counted, divided in half and that Mom would be able to keep 50% of the assets up to a maximum of $109,540 and the home. We went through a list of their investments. I then asked if they had anything else of value. Son, Joe, mentioned that Dad had just signed up for Jets season tickets at the new stadium the Giants and Jets will be opening in 2010. âWe want to keep the tickets in the familyâ, he said. âDad can just transfer them to us, right?â That got me thinking. âIâm not so sureâ, I replied.

If youâre a sports fan, by now you know all about seat licenses. Both the Giants and Jets are selling season tickets in a new way. Before you can have the privilege of buying a game ticket you must pay a fee, called a seat license. The better the seat, the higher the fee. Joe told me that the license for his familyâs seats cost Dad $60,000. So, what do you think will happen if Dad just transfers his seats and later applies for Medicaid?

Certainly there is no mention of NFL seat licenses in any state Medicaid regulations. But, doesnât the license have a value? Teams are telling their fans that they can resell the license, that itâs really an investment. It isnât a stretch, then, for the State to treat the transfer of the license from one generation to another as a transfer for less than fair value subject to a Medicaid penalty. Especially since the State is facing huge budget deficits and can ill afford to pay out benefits to huge numbers of its residents. So, do I think that the State will let it go? Not likely.

Back to Joe and his parents. I told him that any transfer of the seat license had to be for fair value. But, thatâs easier said than done. No one really knows what resale value they have since the licenses are brand new and canât even be resold yet. There is a lesson to be learned though. Families with season ticket plans may want to consider transferring them to the next generation while healthy. Just another reason itâs a good idea to plan for long term care, and if youâre a Jet fan like me, you donât want to miss out on the possibility of a Super Bowl trip. Itâs gotta happen one of these years â right?

Mom Needs Help But a Guardianship Won't Work - What Now?

Elder Law Today — Mon, 14 Sep 2009 10:00:00 GMT

I discussed in last weekâs post how a guardianship may not be possible where Mom needs help but is not necessarily incompetent. So, what other options are there? Momâs health has been in gradual decline. The family sees it. Sometimes they agree that action is necessary, some times not. They have had more than one conversation with Mom about the need for long term care planning, for example moving Mom to a safer environment.

The problem, however, is that the family (usually the children) are uncomfortable in their role. Mom, understandably, is not thrilled with the suggestions, and may even be hostile. Roles are reversed. The child assumes a parental role, taking care of the parent, who cannot, or will not, consider the risks that lie ahead. Yet the child is waiting for the parent to say âyesâ and can only go so far on his/her own without that permission. So nothing is accomplished and the family simply moves from crisis to crisis, always seemingly reacting to events, not preparing for them.

Thatâs when you need to introduce an outside person into the conversation. As I explain to clients, I can say things to your parents that will be heard differently than if you say them to your parents, or if I say them to my own parents. I may, in fact, say the very same things that the family has been telling Mom. But, now itâs different. Mom may have been waiting for the children to take the next step. It isnât just talk anymore. One step turns into the next and thatâs how problems get solved. That process can start with an elder law attorney. It can also begin with a trusted advisor, such as your financial planner or accountant.

Another opportunity that so many families let pass is when a crisis occurs. Mom is in the hospital or rehabbing in a subacute care facility. She wants to go home. The family relents. That may, however, be the best time to make a change. It doesnât have to be a permanent one from the start. But youâve got doctors and medical staff to support you as well. If everyone is telling Mom what needs to be done the focus isnât on the children. It is a whole lot easier for Mom to accept.

Just a few options to consider. Time isnât on Momâs side. Her health will continue to decline. Sometimes itâs a matter of waiting for, and recognizing, the opportunities that present themselves, and then seizing upon them. In the end, Mom may come to accept the changes as necessary, or at least grudgingly allow the children to take the action they know is necessary to insure Momâs continued well being.

Mom Needs Help But Won't Accept It - Can We Apply for Guardianship?

Elder Law Today — Mon, 7 Sep 2009 10:00:00 GMT

The caller gives me the following fact pattern or some variation. Momâs health is deteriorating. Her behavior is becoming extremely erratic, in some cases violent or abusive. In some cases itâs dementia. In others itâs alcohol or the side effect of the medications she is taking. Bills go unpaid. Spending is out of control. The house is falling into disrepair. The family has spoken to Mom but hasnât gotten anywhere. She refuses to sign a power of attorney or health care directive or take any direction or assistance from family. The caller would like to know more about guardianship.

I listen patiently and then start by explaining that guardianship isnât suitable for everyone. And it isnât easy to obtain. Now that can be a good thing, but it also can be a bad thing. You see, the first step in seeking guardianship is a decision by a court that Mom is incompetent, that she legally cannot make decisions for herself. We have a long history of individual rights in this country. Taking away that freedom is not something we take lightly. So the process of declaring someone incompetent is not an easy one.

Mom has to be examined by two doctors who must agree that she is incompetent. (The exact process may vary from state to state.) Then the court appoints an attorney to represent Mom. The attorney must meet with Mom and report back to the court. And here is where the problem usually occurs. If Mom is aware of what is going on, she may object to the process. She may become angry with her children and tell her attorney to go back to the judge and tell him she doesnât want to be declared incompetent and that she will fight it.

She tells the attorney that her decisions are hers to make. Her children may think she is incompetent but where is the line between bad decisions and mental incompetency? It is not an easy one to draw. In many cases I must tell the children that attempting a guardianship will probably fail. Even worse, it may drive the parent away from seeking or allowing the children to help, actually making the problem worse. In those cases, then, what other options are there? More on that in next weekâs post.

Respite Care - Taking Care of the Caregiver

Elder Law Today — Mon, 31 Aug 2009 10:00:00 GMT

Long term care for people suffering from Alzheimerâs Disease and other progressive, degenerative neurological diseases comes in many forms. In past posts I have discussed nursing homes, assisted living facilities, adult day care and home care administered by professionals and family members. Another type of care that you may or may not have heard of is called respite care. This type of care is as much for the caregiver as it is for the ill family member.

For so many people care is provided by family members. As anyone who has provided this level of care for any length of time knows, it is an exhausting task, both mentally and physically. It is a full time job, but not one typically limited to 9 to 5 hours. It is often a 24/7 task and the toll, especially if the caregiver is a healthy, but elderly, spouse, can be harsh. Thatâs why respite care is so important.

Respite care is a form of short term relief for the primary caregiver. That caregiver may need time away to ârecharge the batteriesâ or to address his/her own health issues. There are various programs and services available to provide care to the ill loved one while the caregiver is taking a break. This can range from home health care to adult day care to overnight care in a licensed facility such as an assisted living facility or nursing home. The care is temporary, usually a period of days or weeks at a time.

Financial aid for respite care may also be available through the Alzheimerâs Associationâs Greater New Jersey chapter. The program will provide reimbursement of up to $1000 in respite care expenses incurred during the 3 month period beginning on the date of acceptance into the program. Eligibility is not limited to people with Alzheimerâs but is open to individuals suffering from other related progressive, degenerative, neurological dementia. While funding for the Caregivers Respite Care Assistance Program is limited it does not require disclosure of financial information. And there is no downside to applying. If funds are not available when you apply, your application will be kept on file for 12 months. For more information go to www.alznj.org. If you live outside the Northern and Central New Jersey area check with your local Alzheimerâs Association chapter to determine if a similar program is available where you live.

My Disabled Son is Going to Receive an Inheritance and Lose His Government Benefits â What Can We Do?

Elder Law Today — Mon, 24 Aug 2009 10:00:00 GMT

Mary calls with the following problem. Her father recently passed away and left a sum of money to each of his grandchildren, including Maryâs son, John. âSo, whatâs the problemâ, you ask. John is 25 and mentally challenged. He is disabled, doesnât work and receives Medicaid. Mary is concerned because she heard that receiving the inheritance will cause John to lose his benefits. Sheâs correct if Johnâs assets exceed $2000. âIs there anything that can be done?â she asks desperately.

The answer is to set up a special needs trust, but the timing of doing so is critical. The law has established certain safe harbor trusts that allow recipients of Medicaid and other needs based government benefits to keep those benefits and place their assets into a trust to be used for their âspecial needsâ. These trusts, however, have very technical and specific rules surrounding their set up and administration.

For example, the trust must be irrevocable and established by a parent, grandparent, guardian or court. The disabled individual cannot set it up him/herself. The trust must provide that the disabled individual is the only beneficiary and that the assets can only be used for special needs and not for food, clothing or shelter. The trust may also need to include a âpayback provisionâ, which states that any assets left in the trust when the beneficiary dies will be used to pay back government benefits first. Oh, and the trust cannot be set up if the disabled person is over the age of 65. These are just some of the many restrictions and requirements.

So, letâs go back to Mary and her problem. We can absolutely place Johnâs inheritance in a special needs trust. It probably is best to have the court act as the grantor so weâll need to make an application to the court. It is also important that we do this before assets are ready to be distributed from the grandfatherâs estate. Once the inheritance is made available to John he may lose some months of benefits before the court establishes the trust. He doesnât actually have to receive the assets for them to âbe availableâ. A typical estate can take several months or longer to administer so while the executor is gathering estate assets and paying debts and taxes is the best time to get the trust set up.

Keep in mind that the laws in this area are very technical so it is always best to hire an elder and disability attorney who is very familiar with these types of trusts. And, where possible, it is better for the family member leaving assets to the disabled relative to set up a special needs trust in his/her will or leave the gift to a trust that already has been established by another family member. That is what we call a âthird party special needs trustâ, but thatâs a discussion for another day.

What Michael Jackson and Yung-Ching Wang can Teach All of Us

Elder Law Today — Mon, 17 Aug 2009 10:00:00 GMT

The recent deaths of two wealthy men, one very well known, the other not, illustrates yet again the complications and costs of not preparing an estate plan. The media has focused in the last few months on the story about Michael Jacksonâs death and its aftermath. No doubt we will be bombarded with this story for months and years to come. Jackson left a mountain of debt, assets that in death are probably worth more than when he was alive, and a less than traditional family. Jackson did, however, do some things right. He left a will which included trusts for his children and a clear indication of who he wished to be appointed as their guardian.

Then there is Yung-Ching Wang. Most people probably never heard of Wang but he ranked among Forbes Magazineâs top 200 wealthiest people in the world when he died last year at the age of 91. Wang was a true success story, born into poverty, the son of Taiwanese farmers, he turned a $700,000 loan from the United States government during the height of the Cold War into a multi billion dollar international manufacturing conglomerate. His company, Formosa Plastics, became the largest manufacturer of the ubiquitous plastic materials that we find in all kinds of products today.

By all accounts, Wang was a management guru and a visionary. His personal life was a little bit more, shall we say, messy. He left a wife, to whom he was married for 72 years and 9 children. None of those children, however, were born to his wife. Oh, and he didnât have a will. No written plan of distribution from a man whose rightful heirs is now open to interpretation and who left property and other assets around the United States and around the world.

One of his sons has filed a complaint in New Jersey state court (he was a part time resident there) seeking to be appointed administrator, the official estate representative charged with gathering assets, paying all debts and taxes and distributing the balance to his heirs. He already has a fight on his hands from two of his sisters. Had Wang executed a will appointing someone this initial fight could have been avoided.

The battle promises to last for years and drain the estate of countless dollars. One of the big questions is who the rightful heirs should be, not an easy answer since Wang fathered his children with several different women. New Jerseyâs intestacy laws address distribution of estates when no valid will exists but the laws are not perfect and there, no doubt, will be issues for which clear cut answers donât exist. Legal battles will ensue.

The lessons learned from the Michael Jackson and Yung-Ching Wang cases are clear for all of us. You can save your family much heartache and expense by leaving a clearly thought out estate plan. In Jackson and Wangâs cases, their estates are so complicated that courts will need to step in at some point to assist in the distribution. However, Jacksonâs family will have a much easier time than Wangâs since Jackson at least took care to express his wishes in writing. For the average estate that usually is enough to eliminate the fighting the typically ensues when a loved one passes away.

Is It Effective Medicaid Planning to Add Someone's Name to Your Bank Account

Elder Law Today — Mon, 10 Aug 2009 10:00:00 GMT

Mrs. Jones came in to see me. Her husband was diagnosed with Alzheimerâs three years ago and the disease has progressed to the point where he needs long term nursing home care. At the time of the diagnosis she talked to some family friends and they told her to go ahead and add the kidsâ names to her bank accounts and mutual funds to protect those assets from Medicaid. Now that her husband is in a nursing home she wonders whether she did the right thing. Unfortunately, she did not.

In New Jersey, Medicaid says that adding someone elseâs name to a bank account or mutual fund does not transfer the ownership on that account. In other words, if Mrs. Jones had a bank account with $50,000 and she added her daughter Maryâs name to the account, the State would say that she did so for convenience purposes. The entire account still belongs to Mrs. Jones. So even though Maryâs name has been added, the practical effect, from a Medicaid standpoint, is that there has been no gift and the entire account still belongs to Mrs. Jones.

This is true whether we are talking about bank accounts, certificates of deposit, savings bonds, mutual funds or any other liquid asset. The law says there is no gift until, and unless, the child actually takes the money out of the account. Using this same example, if Mrs. Jones added Maryâs name to the account three years ago, there has been no gift made, even if Maryâs Social Security number is used for the account and she pays the taxes on all income. If Mary later takes some money out of the account, and moves it into her own name, then the gift is made at that point in time.

This general rule is not true where real estate is concerned. Thatâs because if someoneâs name is added to real estate, at the time the deed is signed and recorded, then a completed gift has been made. For instance, letâs say that Mrs. Thompson is a widow and she owns a house valued at $200,000. If she adds her sonâs name to the house and then has the deed recorded, at that time she has made a completed gift. A gift in the amount of $100,000 would cause her to be ineligible for Medicaid for 13 months. At the end of that time, however, the Medicaid ineligibility would cease... and one-half of the houseâs value would be protected.

Whether or not it makes sense to add someoneâs name to real estate or financial assets depends upon the facts and circumstances of each particular case. Be sure to seek the advice of a competent elder law attorney before proceeding.

To Gift or Not to Gift

Elder Law Today — Mon, 3 Aug 2009 10:00:00 GMT

Joe calls me because he wants to understand how Medicaid works. I start to explain how you have to spend down your assets before you can qualify for benefits. That the spend down has to be for value, meaning that you are spending your money and receiving something of equal value in product or service in return. Joe listens and then perks up. "Wait a second", he says. "I can make a gift of $10,000 per person so that doesnât count, right?". "Wrong", I reply.

What Joe has done is make a very common mistake by confusing the annual gift tax exclusion with the Medicaid rules. So letâs run through the basics and clear it up. Gift tax is paid when you make a sizable gift to someone who isnât your spouse. One of the purposes of the gift tax law is to protect the estate tax. For example, if I know that my estate of $2,000,000 will be taxed when I die, then why donât I just transfer all my assets to my loved ones shortly before I die. The gift tax eliminates this estate tax avoidance strategy.

A certain amount, however, is exempt from the gift tax. There is a lifetime exclusion of $1,000,000, meaning I can transfer up to that amount, in one lump sum or in smaller increments, over my lifetime. In addition, I can gift up to $13,000 per person per year (everyone remembers it as $10,000, but several years back an inflation adjustment was added so the number now is $13,000). Yes, there is no gift tax owed when you make that gift but it does carry a Medicaid transfer penalty.

How so? Because the gift tax rules have nothing to do with the Medicaid rules. On the one hand, the government is telling us its OK to gift some amount of money without paying tax, but only up to a point. On the other hand, if we need nursing home care the government doesnât want to pay for that care unless we spend all of our own money on that care first.

Every $13,000 gift, therefore, carries a Medicaid transfer penalty, a period during which you are not eligible for Medicaid. That penalty, expressed in months, is calculated by taking the transfer for less than fair value (the gift, as we have been discussing) and dividing by the average monthly cost of nursing home care. This number is set by each state and in some states it varies by region. Here in New Jersey that number right now is $7282. This means every $13,000 tax free gift carries a Medicaid penalty of almost 2 months.

Now, does that mean that you should never make gifts? No, not necessarily. It just means that in todayâs increasingly complicated world, you have to understand that making those gifts can result in long term consequences, which you may not recognize until itâs too late. Thatâs why a carefully thought out long term care plan is critical and getting the proper advice and guidance well before that care is needed is always the best approach.

I Have a Living Trust So I'm Covered - Right?

Elder Law Today — Mon, 27 Jul 2009 10:00:00 GMT

In discussing long term care planning with new clients, very often they will tell me that they have everything covered because years earlier they set up a living trust. Living trusts are estate planning devices designed to eliminate the need to probate an individualâs estate at his/her death. In the 1990âs they were especially popular and still are very common, especially in states such as Florida and New York, where probate is time consuming and expensive. But are they useful for long term care planning purposes?

Most likely, not. Living trusts are usually revocable, meaning that when a grantor or settlor (the person establishing the trust) transfers assets to it he/she has the ability to take the assets back out at any point in time. People believe that when they make transfers to the trust, these assets are not counted as theirs for purposes of qualifying for Medicaid or VA Aid and Attendance benefits. That is just plain wrong. If the trust gives you the ability to take the asset back out of the trust, the government will say âgo ahead and take it back, spend it all down and then when it is gone come back to us.â The trust has to be irrevocable, meaning assets transferred to the trust cannot be taken back out by the grantor.

A second reason living trusts (or other trusts, such as testamentary credit shelter or bypass trusts, wonât work for long term care planning purposes is that they usually contain a clause providing that the trustee can use the assets for the âhealth support and maintenanceâ of the beneficiary. Again, if the beneficiary needs long term care the government will look at the trust and point to that language. âLong term care needs are health, support and maintenance,â theyâll say, âso spend it down and then come back to us when itâs gone.â

So, whatâs the solution? If you have read previous posts on this blog you know that first of all, the trust must be irrevocable. Now, that makes people uncomfortable. âDoes that mean I am giving away my assets and losing control over them?â The answer of course, is no. What I tell people is that the purpose of this transfer is not to give away assets because you may very well need some (or all) of them, depending on what your health needs are. But you can qualify for government benefits that can help pay for care. Not knowing how long you will live, the challenge is to protect your assets so you donât run out of money. Tapping into other sources helps accomplish that goal because you are spending down your own assets less rapidly.

Additionally, the trust language allowing distribution of assets by the trustee to the beneficiary has to be tailored very carefully so as not to jeopardize eligibility for government benefits. It all adds up to a trust that avoids probate and addresses long term care planning needs.

The bottom line when it comes to living trusts is to get proper advice before jumping into one or if you already have one. Seek the advice of a qualified elder law attorney who can discuss every option with you. A living trust may meet your particular needs. But then again, it may not.

The Right Way -- And The Wrong Way -- To Hire a Home Aide

Elder Law Today — Mon, 20 Jul 2009 10:00:00 GMT

As long term care needs increase and families want to keep their loved ones at home, hiring home health aides often becomes necessary. Paying an aide, however, if not done correctly, can cause Medicaid ineligibility years later, after funds run out. Consider the following very common scenario.

Jane hires a home health aide at $700 per week cash, or $3000 per month. She keeps the aide 3 years until her funds run out and now needs round the clock care. A nursing home becomes the only option.

She applies for Medicaid but is told, âSorry, youâre not eligible for 15 months. Youâll have to private pay until then.â Of course, Jane has no more money. Sheâll have to come up with the funds some other way, perhaps from family members. But at $9000 per month or more that may not be possible. How did Jane get into this mess? Because Medicaid treated her payments to the aide ($108,000) as transfers subject to a penalty.

Qualifying for Medicaid requires spending down assets below $2000. Transferring assets may cause Medicaid ineligibility if you do not receive something of equal value back. Medicaid calls this a âpenaltyâ. However, and this is key, you must prove to Medicaid that assets transferred are not subject to a penalty.

If you pay the aide cash (or by check) and donât keep proper records Medicaid will assess a penalty. The penalty is calculated by dividing the transferred amount by the average cost of nursing home care. When one applies for Medicaid there is now a 5 year lookback period, meaning Medicaid will look back 5 years from the date of the application to find these transfers. They will add together all the transfers made during that time. The penalty will begin when all other assets have been spent down and the individual enters a nursing home and applies for Medicaid.

Of course, that is exactly the time when you have no more money. The State presumes you gifted the money and so will tell you to get it back, use it and then, after itâs gone to come back and they will pay for your care. But, you didnât gift the money so you canât get it back.

So,how can you avoid Janeâs problem? By keeping records to prove the payments were not gifts and not paying cash which is difficult to trace. It is also a good idea to generate detailed invoices of the services which you purchased. Another, perhaps better, solution is to hire a home health agency that will supply the aide. It will cost more than hiring an aide directly but your contract with the agency will insure that Medicaid can never challenge the payments as gifts. And, in the long run it may cost you less because you wonât be stuck with a Medicaid penalty.

The Bank Won't Honor my Power of Attorney

Elder Law Today — Mon, 13 Jul 2009 10:00:00 GMT

As I often tell clients, one of the most important documents that everyone should have is a power of attorney. A power of attorney allows you to designate someone to conduct financial and other transactions on your behalf. The ease with which anyone can execute such a document is a positive but can also be a negative because of the risk of it being abused. And therein lies the problem when it comes to being accepted by a third party, such as a financial institution or bank.

When we prepare a power of attorney for a client we draft it with the clientâs needs in mind as well as the mindset that we may not have another opportunity to redo it later so it must be as broad as necessary to cover all possible scenarios in which it may be used by the agent. We also tell clients that when their agent presents the document to a bank or other financial institution the first reaction may be that the bank will want our client (the âprincipalâ, that is, the person signing the power of attorney in favor of the âagentâ) to execute another power of attorney on their own form.

The bankâs reason is usually a concern about liability â being sued for honoring an invalid power of attorney. However, the law provides a measure of protection for both the principal and the bank. New Jersey law states that a bank must accept a power of attorney that conforms to the law unless the principalâs signature is not genuine or the bank has actual notice that the principal has died, the power of attorney has been revoked or the principal was under a disability when the document was signed, meaning he/she wasnât competent to sign it.

The problem presented to clients is that the bank employee is usually following bank policy set by their legal department that they want the principal to sign their own document, typically in front of one of their own employees. Obviously, this makes it easier for them to be sure the document is valid but it frustrates the purpose and benefit of the law, that the principal can sign one document to cover all scenarios. Persistence with the bank employee and sometimes intervention by the elder law attorney will usually overcome this resistance and convince the bank to honor a valid power of attorney.

It helps to know a little bit about the law because the person you are dealing with at the bank probably doesnât and will tell you they are simply âfollowing bank policyâ. But this policy is not at all helpful to the client, especially in situations in which physical frailties prevent him/her from physically appearing at each bank to execute a separate power of attorney. Thatâs not to say that there arenât legitimate concerns about agents abusing their power. Itâs just that a âone size fits allâ approach is the easy way out, instead of a careful examination of the facts of each case.

Dad Owns a Home and Needs Nursing Home Care - What do I do?

Elder Law Today — Mon, 6 Jul 2009 10:00:00 GMT

A common scenario that I am seeing with increasing frequency is the following fact pattern. Dad owns a home but not much else. He needs nursing home care but canât get a mortgage to tap into the equity to pay for the care. The home is listed for sale but in todayâs market, homes arenât moving quickly. So the children pay the nursing home bill and the cost to maintain the home, with the expectation that when they sell the home they will repay themselves. The family doesnât have any written documentation to reflect this arrangement and thatâs where the problem starts.

So, the children pay for Dadâs care and expenses. Maybe they pay by credit card, sometimes, by check. Some expenses, such as lawn care, they pay cash. Often times they donât keep records to back up the expenses and if more than one child is helping out no one is keeping a running tally of who is paying what. âWeâll figure it all out laterâ, they say. Finally, the house is sold. Dad gets $200,000 from the sale. The kids estimate that they have spent $150,000 on Dadâs behalf and take that amount to repay themselves. Dad then spends down the rest for his care.

Now, itâs time to file a Medicaid application. As part of the application Dad must produce financial records for each account he had in existence, going back to February, 2006 (soon to be a 5 year lookback). The State will examine the home sale and discover the transfer from Dad to children. It will treat the transfer as subject to a Medicaid penalty, unless the children can prove the money was repayment for goods or services that Dad received. And that proof must be by documentary evidence. Dad wonât be eligible for benefits for a year or more, depending on the state he lives in. âBring the money back and spend it downâ, the State will say. So what can this family do?

There are a few options. Some involve applying for Medicaid immediately. Others involve family members paying for Dadâs care and then getting reimbursed later. However, the one common element to each option is that there is a written agreement in the form of a note and a mortgage on Dadâs home to secure the loan. The paper trail is the key. Without it the children will never be able to prove that the transfer was for value, and wonât be able to recoup the money, in some cases hundreds of thousands of dollars, advanced for their parentâs care.

And if you have been a frequent reader of this blog you know that the earlier in the process you seek proper advice and guidance the better off you are. You donât want to wait until filing the application to find all this out because, of course, by then it is too late.

Assisted Living Medicaid - Another Example of the Risks of Going it Alone

Elder Law Today — Mon, 29 Jun 2009 10:00:00 GMT

A few months ago I wrote about the difficulties qualifying for assisted living Medicaid. (See 3/23/09 blog post). Last year I wrote about the risks of trying to handle a Medicaid application yourself. (See 10/5/09 blog post). A recent case we handled in our office illustrates both issues.

John had been in an assisted living facility for several years. His wife, Mary was living at home and private paying for his care. She had numerous conversations with the assisted living facility about Medicaid and was told that qualifying wouldnât be a problem and that John could remain in the facility on Medicaid. Pretty simple, or so it seemed.

Mary began the long winding journey that we have come to know as the Medicaid application process. Similar to the couple I wrote about in March, Mary did not understand the timing aspect of Medicaid, that she had to reach a target level of assets before John could qualify and that each month she missed that target was a lost month, never to be recaptured. This was of paramount importance to her, since she is several years younger than John and will need to preserve as much as she can to live on after he is gone.

The Medicaid application process dragged on as the caseworker asked for each follow up piece of documentation, all very confusing to Mary. She finally sought assistance and we were able to help her finally achieve financial eligibility. At that point Medicaid sent a nurse out to the facility to evaluate John medically, to determine that he needed nursing home care. Mission accomplished. John received the go ahead. Now, all that remained was for the facility to complete its required form, indicating that it would OK John for a Medicaid slot. Imagine the surprise when we received word of Medicaidâs denial.

When we followed up, we learned that the facility refused to make a Medicaid slot available, resulting in the denial, despite the promises made to John and Mary. We were told, however, by Medicaid that John could still be approved if the facility simply changes its stance and agrees to make a slot available.

John and Maryâs experience is a cautionary tale for families. Qualifying for Medicaid is anything but simple, especially so when it comes to assisted living. It requires the cooperation of families and the facilities caring for their loved one. It is confusing and time consuming and best not handled without the guidance of a qualified professional, such as an elder law attorney. And keep in mind that much of this is state specific. While the long term care options are complicated no matter where you live, each state has its own system and set of laws so make sure you consult with someone familiar with the process in the state where your loved one lives.

Is Remaining at Home Always the Best Option? Maybe Not

Elder Law Today — Mon, 22 Jun 2009 10:00:00 GMT

As I have written previously, in speaking with families, overwhelmingly the desire is for elderly family members to remain in their own home as they age and face declining physical and mental health. But, is that always the best thing? Perhaps, not for everyone.

I was reading a recent post on the New York Times New Old Age blog (www.newoldage.blogs.nytimes.com) which highlighted two cases in which elderly parents were living at home in declining health. One was a 95 year old woman living in her own home with a team of aides and other assistance, all coordinated by her overwhelmed daughter. The other was an elderly man suffering from Alzheimerâs Disease, living in the basement of his sonâs home. The woman had visitors and activity in her home every day. The man did not, spending most of the day alone watching television.

The two cases raise some interesting questions. Would the elderly man be better served in an assisted living facility or at least, adult day care? He is not getting any mental stimulation through most of the day, which, if received, could slow down the progression of his disease. There is the safety issue as well. He remains at home in the basement for long hours unsupervised. What if there is an emergency? Will help arrive in time?

The elderly woman would seem to be better cared for. She has visitors in and out of her home throughout the day. But, her daughter is coordinating all this care. It sure sounds like a full time job. And then we learn that the daughter, herself, is 74 years old. How is this affecting her health and what happens if she needs care? Finally, I wonder what Momâs finances are? All this assistance can approach and exceed the cost of care in a facility. Will she run out of money and if so, what happens then?

As 77 million babyboomers begin turning 65 in 18 months, long term care will continue to be a major issue families will have to wrestle with. And, I am not saying that remaining at home shouldnât be the goal for many. However, as with most complex problems a one size solution does not fit all. Assisted living facilities and nursing homes will always have a place in the continuum of care and may just be the right fit for some. Food for thought and a different perspective to consider.

Spent Down? Not So Fast

Elder Law Today — Mon, 15 Jun 2009 10:00:00 GMT

Some months ago I wrote about the couple who, not understanding the peculiarities of the Medicaid rules, did not spend down in a timely manner and, as a result, lost six months of Medicaid eligibility. Even though the money was eventually spent those lost months could not be recovered and the wife was stuck with a nursing home bill of $60,000 she should not have had. (See 10-5-08 blog post)

The ins and outs of Medicaid are complex and confusing. Another example which we recently addressed in our office highlights that point. Mr. Jones was in a nursing home and we were applying for institutional Medicaid. Under Medicaid rules the applicant needs to be below $2000 in assets as of the first moment of the first day of the month in order to qualify for Medicaid for that month. We tell clients that they must be below this number as of the last day of the preceding month.

Spending down means making transfers for value, that is to say, a purchase of goods or services for fair or equal value. Very often this spend down occurs right up until the last day of the month. So, what happens if I write a check to pay a bill on the 31st of the month but the person or business I give it to doesnât cash it until the next month? As long as it is dated the 31st (or earlier) and you give it to that person or business no later than the 31st, then it is counted as being spent even though it will not clear your checking account until the next month.

Now, this all sounds very trivial, and I would agree with you, but donât think for a minute that the State will overlook these transactions. They wonât. They scrutinize them very carefully. If youâre over the Medicaid limit by a dollar, youâre over for that month and have to wait until the next month. (See above)

Letâs go back to Mr. Jones. His son was spending down Dadâs assets. He had credit card, rent and utility bills to pay. We spoke on the 31st and Son confirmed that Dadâs 3 accounts totaled $1200 after accounting for payments. Now, we didnât have statements yet for one of the accounts so we had to rely on Sonâs statement. We filed the application and several weeks went by before we heard from the Medicaid office. They wanted missing statements from one of the accounts at an out of state bank. With some difficulty (because the bank at first balked at accepting the power of attorney Dad had executed in Sonâs favor) we obtained the statements but were surprised to learn that some of the bills were not paid by check, but rather by electronic transfer on the first of the month. So, while Son kept telling us that Dadâs accounts totaled $1200 that was not, in fact, true. He was counting these electronic debits which Medicaid would not.

As it turned out, we still were under $2000 in Mr. Jonesâ case, but not by much. (We tell clients we want them to be well below $2000 to leave room for just these types of surprises.) The next case may not work out so favorably. Just another example of how tricky the Medicaid rules really are and why you donât want to go it alone.

No Estate Tax in 2010 - Will It Really Happen?

Elder Law Today — Mon, 8 Jun 2009 10:00:00 GMT

Ever since Congress passed the current estate tax legislation in 2001 it was the belief of many, including myself, that legislators would have to go back and pass changes to the law before 2010. You see, in 2010 there is no federal estate tax. But, the elimination of the tax applies only to that one year. In fact, in 2011 the federal exemption, the amount one can pass free of federal estate tax, goes back to $1,000,000. It doesnât take much imagination to see why that can be a dangerous thing. A little explanation is required.

            In 2001 the federal exemption amount was $675,000 and heading towards $1,000,000 by 2006. President Bush came to office having promised during his presidential campaign in 2000 to push for legislation eliminating the estate tax. However, he couldnât get his bill passed through Congress and had to reach a compromise. That is why the current law gradually raises the exemption until, in 2010, the tax is eliminated. But, the law contains a âsunset provisionâ, meaning it expires on December 31, 2010. The previously law becomes effective once again. Bush intended to go back and eliminate the tax permanently after midterm Congressional elections, which he hoped would increase the Republican majority in Congress. As we all know, 9/11 and the Iraq war changed everything and in the last year the economy has sunk into recession.

            The federal estate tax is a pretty hefty one. The tax rate is 45% so the tax can very quickly reach six and seven figures. So, if Dad dies in 2010 there is no tax, but if he dies in 2011 the tax can be hundreds of thousands or millions of dollars. Legislators often change the tax laws to influence public behavior. We make so many financial decisions based on the tax impact (too many, in my opinion). So, what will happen if families know that they can save millions in taxes if Mom or Dad dies on December 31, 2010, rather than January 1, 2011?

            That is one reason why I always felt that change would happen before 2010. Well, weâre 6 months away and still, no change. Last year there was some talk about extending the exemption through 2015 at $3,500,000. With the economy worsening, and government deficits increasing, however, that doesnât seem likely. The latest proposal is to put the exemption amount at $2,000,000. But what if change doesnât happen this year? Can the law be passed after the beginning of next year? Experts believe it can because estate tax is due 9 months after death, meaning the first 2009 returns are due October 1, 2009.

            Things will certainly be interesting so stay tuned. And keep in mind that even if your estate is below $1,000,000 many states have their own estate tax which kicks in at amounts lower than the federal exemption amount.

Elder Law Today Podcast Show #18 Continuing Care Retirement Communities

Elder Law Today — Wed, 3 Jun 2009 07:02:00 GMT

Continuing care retirement communities can be a great option for many people. I can move into one community that can meet all my needs, from independent housing to assisted living to nursing home care as I need it.

In Show 18 of his monthly elder law podcast, Yale Hauptman, a practicing elder law attorney, provides an overview of CCRCs, the pros and cons. So often, he sees people enter into these financial arrangements without closely examining the 40+ page contract that typically the resident must sign. The contracts often require a large upfront financial commitment. What will the CCRC agreement cover? What wonât it cover? What happens if you run out of money? What if the facility runs out of money?

If you are considering a CCRC for yourself or a loved one youâll definitely want to tune in first.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

Continuing Care Retirement Community - Is It Right For Me?

Elder Law Today — Mon, 1 Jun 2009 10:00:00 GMT

Continuing Care Retirement Communities (CCRCs), are communities that provide a full continuum of care for their residents. They have flexible accommodations designed to meet their residentâs health and housing needs as those needs change over time, offering independent living, assisted living and nursing home care, usually all in one location.

As a requirement for admission to most CCRCs, residents are required to pay an entrance fee or a lump sum âbuy-inâ which, in addition to other things, guarantees the residentâs right to live in the facility for the remainder of his/her lifetime. In addition to the entrance fee, residents pay a monthly service fee.

The entrance fee is often, but not always, reimbursable (at least partially) if the individual moves from the facility, passes away while a resident at the facility, or otherwise terminates the contract. Many contracts also contain a provision wherein an individual is able to use a portion of the entrance fee towards monthly resident charges if the resident exhausts his resources and becomes otherwise unable to pay.

The concept is a very appealing one. The resident knows that as he or she ages and needs increased care it will all be provided by the same organization, usually in the same location. There are certain risks, however, that make it unsuitable for many.

The CCRC is promising to provide care over a potentially long time frame without knowing exactly how much it will cost or when it will be needed. The concept is something akin to insurance. The company must make projections as to how many of its residents will need what level of care at any one time. But so many things can go awry. What happens if too many people need nursing home care at one time? What about the rising cost of long term care? What happens if residents run out of money? Or the CCRC runs out of funding? Certainly possible in todayâs world, where not even big financial companies like Prudential or AIG are safe.

Because of all these contingencies the CCRC contracts have many so called âoutâ clauses. When you buy into the community there isnât an iron clad guaranty that no matter what youâll be able to stay. Under some scenarios you may run out of money and be asked to leave. This risk is especially present when husband and wife move to the community together. If one spouse needs nursing home care for an extended period the couple may spend down their assets towards that care, leaving the health spouse with not enough to cover his/her care. In some cases the entrance fee can be used for that care but then what? Is Medicaid a possibility? Maybe, but usually the resident must satisfy certain conditions imposed by the CCRC in addition to Medicaid eligibility rules. It depends on the terms of the contract.

It is, therefore, very important to review the contract (which can be 40 pages or more) with an elder law attorney before signing and go through these different scenarios. If you put all your financial eggs into the CCRC basket, what happens if that basket springs a leak? It is a good idea to have an emergency plan in place.

LTACH - What is it and How Can it Benefit My Critically Ill or Catastrophically Injured Loved One?

Elder Law Today — Mon, 25 May 2009 10:00:00 GMT

Medical science has made great strides in the last 30 years. We are certainly living longer. Illnesses and injuries that in the past resulted in death, now do not. However, the recovery period can be a long one, especially for the elderly, whose recuperative abilities are not the same as younger patients. As a result, patients remain hospitalized longer and bounce back and forth between nursing home and hospital, in so many cases.

Thatâs where the long-term acute care hospital or LTACH, comes in. General hospitals are typically paid a standard fee for a diagnosis so they earn more for a quicker patient discharge. At the same time, the patient may not quite be ready for a subacute facility in a nursing home, which focuses primarily on rehabilitation but canât provide the medical care of a hospital. The LTACH can bridge that gap. Patients receive the benefit of physicians on duty around the clock as well as nurses, respiratory therapists, case managers, physical and occupational therapists, dieticians and pharmacists, all on staff. LTACHs provide more nursing care than on a medical-surgical floor of a hospital but less than is provided in an intensive care unit.

Many LTACH patients use ventilators to breath and are recovering from multiple medical conditions such as heart failure, major surgery, etc. They may have developed complications such as bed sores. The specialty hospital can concentrate on weaning the patient off of the ventilator or providing wound care, for example, that can require weeks of care, that the general hospital wonât receive payment for. For those on Medicare, LTACHs are covered under Part A. The average stay in an LTACH is 25 days.

There are over 400 LTACHs nationwide and 8 in New Jersey. Most are housed in general hospitals, however, some are freestanding, such as Select Specialty Hospital in Rochelle Park, New Jersey which is owned by the same company that also owns Kessler Institute, the facility that specializes in the treatment of spinal cord injuries. The long term acute care hospital is definitely an option families should explore for their critically ill or catastrophically injured loved one. It may very well improve the recovery process and increase the chance that a loved one can ultimately return home, the end result that we all want to achieve.

A Medicaid Story That Starts Out Bad But Turns Out Just Fine

Elder Law Today — Mon, 18 May 2009 10:00:00 GMT

Last week I wrote about Dad who gifted a large sum to his children and within 6 months needed long term care. Because the money had been spent and could not be returned I had to explain to the daughter that Dad would not be eligible for Medicaid for 4 and Â years. A complete disaster. But this week letâs take a look at a success story, one in which we were able to work to fix the mistakes that were made, long before long term care and Medicaid were needed.

Two years ago Mary contacted me concerning her mom who was living in an assisted living facility with an aide that she and her sisters were paying cash. Mom had transferred her assets to her 3 daughters. They had begun to spend some of the money on Momâs care but had also opened and closed accounts, moving, combining and commingling assets. Over time it would have been very difficult to follow the paper trail and establish with Medicaid that Momâs money had been spent for her care, and not gifted to the children. Unlike last weekâs family, however, Mary reached out to me within a few months after the initial transfers and, as it turns out, almost 2 years before we applied for Medicaid.

We quickly counseled Mary that the assets had to be returned, and, thankfully, although some had been spent on Momâs care, she and her sisters still had possession of the balance. We then guided Mary on the records that she needed to obtain in preparation for the anticipated Medicaid application. While she still employed the aides we were able to prepare invoices and documentation showing that the cash withdrawals were not gifts, but payment for services, including a statement from the facility. Mary had been paying the facility bill on her credit card and then taking money from Momâs account (which was titled in Maryâs name). We had her go back through her records and copy the credit card bills with those charges and match up payments back to her from âMomâs accountâ. We also counseled her on a better way to make those payments.

Finally, Mary and her sisters had moved money from one account to another, for convenience, a better interest rate or to keep FDIC insurance coverage. Without recognizing it, however, they were muddying the paper trail. You see, Medicaid requires as many as 5 years of financial records to show how money has been spent. Mary and her sisters didnât realize the problems they were creating. We painstakingly had to document all the transfers from one account to another and transfers in and out of each account.

As I said, this was a success story. 2 months ago we applied for Medicaid. We provided Medicaid with details of each transaction, backed by supporting documentation. Last week the family received Medicaid approval without a hitch. Every dollar had been accounted for and we achieved a smooth transition to Medicaid with no ineligibility period. Financially, the family can rest easy that Momâs care is paid for and the nursing facility, which receives those Medicaid benefits, is happy that their resident went from private pay to Medicaid without interruption of payment. An example of the way things can work if you have someone with knowledge guiding you through the process.

It's Dad's Money. He Can Do What He Wants With It - Right?

Elder Law Today — Mon, 11 May 2009 10:00:00 GMT

In February, 2006 Congress passed some significant changes to the Medicaid laws that created some very dangerous traps for unprepared families needing long term care. At the time I wrote about a case in which Granddad gifted his money to Granddaughter who moved in to care for him. When she could no longer provide the care and applied for Medicaid she was told, mistakenly, that he was not eligible because of the gifts. It turned out that the Medicaid ineligibility period had expired. We filed for Medicaid on her behalf and the application was approved. A happy ending, but one which I wrote at the time would not end so happily under the new law.

Last week I received a call with an all too common story. Mom had recently died. Dad moved in with Daughter, Jane and the plan was for him to live there the rest of his life. At the same time, Dad gifted $150,000 to Jane and her brother, Joe. "It's Dad's money. He can do what he wants with it", she told me.

Well, I think you can guess what happened. Jane was unprepared for the reality of long term care. I could hear the stress in her voice as she described the deterioration of Dad's mental and physical state, from the mood swings and erratic behavior to the declining personal hygiene and the inability to walk without assistance. His care needs were increasing and Jane was unable to handle the increased demands on her time while caring for her own young children.

"I just never expected this", she exclaimed." I can't do this anymore. I need to get Dad into a nursing home and he has $50,000 left. What do I do?", she pleaded. I explained to her that once his money was spent down he could qualify for Medicaid, but she and Joe would need to return the $150,000. But here was the problem. Jane and Joe had already spent the money and, therefore, couldn't return it. "Wellâ, I told her, "when Dad's remaining $50,000 is spent down he still won't be Medicaid eligible for another 4 years. Thatâs because the Medicaid penalty doesnât start until he has less than $2000 to his name and he needs nursing home care.

"It's so unfair," she cried. "The government is forcing me into poverty to pay for Dad's care." I had to patiently explain to her that she and her brother did receive a substantial sum from Dad, money that should be spent for his own care before public funds could be tapped. The sad truth, however, is that had the family consulted with an elder law attorney before the gifts were made, Dad could have transferred some assets but enough would have been preserved to cover the possibility that he would need long term care before Medicaid eligiblity. Unfortunately, in Janeâs case I didnât have any solution to her problem. She would have to figure out how to care for her Dad or pay out of her own pocket until the Medicaid ineligibility period expired. It didnât have to turn out this way. A cautionary tale for all.

Elder Law Podcast Show #17 Why Do I Need a Will

Elder Law Today — Wed, 6 May 2009 08:20:00 GMT

The law allows every person to distribute property according to their wishes by a written instrument known as a Last Will. However, many people never execute one and miss that opportunity, the consequences of which can be devastating to loved ones.

In Show 17 of his monthly elder law podcast, Yale Hauptman, a practicing elder law attorney, discusses what can go wrong without a will. Each state has a set of laws that predetermines how assets will pass where there is no will, known as intestacy. That may not, however, be what you want. For example, assets may be left outright to heirs who shouldnât or canât handle the money or may end up in the wrong peopleâs hands.

Yale also discusses the difficult issues involved in second marriages where each spouse has different heirs who they wish to leave their estate. Without proper planning that wonât happen. Ownership of real estate in another state can also present a problem without planning. The bottom line is that without a carefully drawn plan your intentions and desire may not be carried out.

Tune in to learn what you need to do to safeguard yourself and your loved ones.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

When Can a Healthy Spouse Keep More Than Half the Assets Under Medicaid Rules

Elder Law Today — Mon, 4 May 2009 10:00:00 GMT

Janeâs husband, John, was recently hospitalized and nursing home care was looking more than likely. At that time, their assets totaled approximately $150,000 (not including their home and one car, both of which are âexemptâ for Medicaid purposes). Jane went to the Board of Social Services to see what benefits would be available to help her pay for her husbandâs nursing home costs. The caseworker explained to Jane that, upon application for Medicaid benefits, the state will total all of the assets she and John own on the day he entered the nursing home (the âsnapshot dateâ). The state will then divide their assets in half (âdivision of assetsâ) and Jane is entitled to keep one-half of the coupleâs assets, but only up to a maximum of $109,540. John will qualify for Medicaid once his âhalfâ of the assets are spent down below $2000.

Jane and John needed to spend their assets down to $77,000 before qualifying John for benefits. Jane was distraught at the idea of having to spend her life savings â what about her own health care costs? A social worker at the hospital recommended that Jane contact an elder law attorney to see if there were ways they could preserve more of their assets. When we met Jane we explained that there was a way she would be able to increase the amount of assets she is entitled to keep. Here is how.

Jane and John owned their home free and clear, with no mortgage. It was no problem for them to take a home equity line of credit in the amount of $100,000, since their home was worth approximately $400,000. Jane immediately borrowed $70,000 against the line, before John entered the nursing home. By doing so, she increased the amount of assets at the snapshot date from $170,000 to $220,000. This meant that Jane could keep $109,540 and the couple would need to spend the remaining assets down to $2000. In other words, the couple would have to spend $110,460 before John could qualify for nursing home benefits.

After John entered the nursing home we instructed Jane to repay the line of credit leaving another $40,440 to spend down. Paying the nursing home and other bills quickly accomplished that and we were able to get John Medicaid. The end result was that Jane kept nearly $110,000 of their combined $150,000, much needed money considering she was also going to lose some of Johnâs income and could very well outlive John by 5 years or more.

A word of caution. This scenario is fact specific to Jane and John and should not be considered without proper counseling. The bottom line, however, is that before you start spending down, you should seek advice from someone who knows the Medicaid laws.

My Spouse Needs Nursing Home Care - What are my Options?

Elder Law Today — Mon, 27 Apr 2009 10:00:00 GMT

Mary and Joe own their home and have $150,000 in savings. They have wills leaving everything to each other and then alternatively to their children, but they have done nothing to address their long term care needs. Joe is now about to enter a nursing home and Mary is faced with spending down to $75,000 and losing Joeâs income before he will be eligible for Medicaid. A classic crisis planning case. Does Mary have any options?

Actually, yes. While she will have to spend down there are ways to spend that will be more beneficial for Mary. Letâs go through a list of some of them. At the top of the list is setting up an irrevocable burial fund to pay for both of their funerals. Better to do that now. Otherwise sheâll have to take that expense out of what Medicaid says she can keep. Other strategies focus on exempt assets, the house and a car. Mary will keep the house and one car. Of the $75,000 that she has to spend down she could fix up the house. That might include replacing an old cooling or heating system, installing new windows and/or siding and remodeling the interior. If she makes improvements that enhance the value of the home should she decide to sell that will result in more money for her to live on.

How about her car? Mary has a 10 year old car. It is better for her to purchase a new car as part of the spend down. Or perhaps she has a car loan that she is paying off over time. Paying it off before applying for Medicaid may be the better alternative. That applies for other debt, such as credit cards or other installment loans. Finally, Mary ought to look at anticipated expenses. For example, if she or Joe needs dental work now may be the time to do it.

Some of the spend down will need to go to the nursing home to pay for the cost of care at its private pay rate so it is important to determine what amount will be necessary to get Joe into a quality facility. Knowing that, they can then work backwards to determine what they have left to spend on the other items. Additionally, if Joe is not yet in the hospital or nursing home it may be possible for Mary to keep more than $75,000 by taking a home equity line of credit (more on that in next weekâs post).

A word of caution, however. One size does not fit all. What is best for one person may not be right for another. Medicaid rules are very complicated and quite technical. Before taking any action it is best to consult with an elder law attorney well versed in Medicaid law. But, if done properly, Mary can preserve more than the 50% of assets that Medicaid laws say she can keep. This is especially important, given the possibility that Mary may outlive Joe by 5 or 10 years or more.

How Long Term Care Can Destroy an Estate Plan

Elder Law Today — Mon, 20 Apr 2009 10:00:00 GMT

Whenever we meet with new clients, especially married ones, I always want to review the estate planning documents that they currently have. Sometimes those documents are 10, 20 or 30 years old. Other times, the clients will say, âOh, we just had our wills updated in the last year so weâre good there. Yet, when I review the documents, I find that they are not suitable for their current needs. How can this be?

Very simply, no one considered how long term care costs can completely destroy an estate plan. As I have explained in previous posts, when one spouse needs nursing home care and the other does not a spend down must occur. The healthy spouse gets to keep one half of the coupleâs assets up to a maximum of $109,540 and a home, if he/she is living there. The ill spouse can then get Medicaid. But, what happens if the healthy spouse dies first?

Well, in most cases the will provides that everything is left to the surviving spouse and then to the children after the second spouse dies. Or, perhaps, the will establishes a bypass trust for the surviving spouse, to save on estate taxes. In either case the assets will now be accessible to the surviving spouse who is on Medicaid. One of two things will happen. Either the assets must be given to the State to pay back Medicaid benefits received and the surviving spouse can continue to receive benefits. The alternative is to terminate Medicaid and begin private paying for care until all the assets are spent and then reapply for Medicaid.

Neither scenario is very appealing and need not happen if we modify the will. Instead of leaving everything to the surviving spouse we leave the assets to a trust for that spouse, but, and here is the key, a trust that will not be counted for Medicaid eligibility purposes. Now, those assets are available to be used for other needs not covered by Medicaid. And when the surviving spouse passes away, there will likely be something left to pass on to the next generation, an important goal for many families.

Does this mean that everyone should set up their will in this manner and that leaving everything to your spouse is the wrong thing to do? Not necessarily. What I am saying is that you do need to sit down with an elder law attorney who is well versed in the long term care system. You may have a will that was suitable for your needs at the time it was created but things change and your plan may need to be changed too. You may be leaving yourself vulnerable. The State says you have to spend down most of your assets towards long term care. With a poorly drafted estate plan you may end up spending all of your assets towards care, something even the State doesnât require you to do.

Thinking About Transferring Your Home - Have You Considered the Tax Implications - Part 2

Elder Law Today — Mon, 13 Apr 2009 10:00:00 GMT

In my last post I explained how Momâs transferring her home to me during her lifetime will result in capital gains tax whereas passing the home to me after she dies can reduce or even eliminate the tax. However, Mom considered transferring the house because she wanted to protect it from being consumed completely by the cost of long term care, especially important where other family members live in the home.(See my posts on 2/23/09 and 3/2/09).

Right there is the dilemma. What to do? Capital gains tax, at worst, will never consume the entire proceeds of sale. Long term care, however, could easily exceed the home value if it is needed for several years. But do I have to really choose between the two? Well, maybe there is another way.

Putting the home in a trust, if set up properly, can accomplish both goals. The home is removed from the parentâs name and, if done 5 years or more before needing long term care, will be outside the Medicaid lookback, that time frame within which Medicaid looks to confirm that you have in fact spent all your money and havenât given it away. At the same time, the trust can be set up in such a way that the assets it holds will be part of Mom's estate and she will be able to take advantage of both the capital gains tax exclusion and the step up in basis that I discussed in my last post.

We accomplish the best of both worlds. The home can be protected and tax advantages will not be lost. But, there are even more potential benefits. Since the home is not in the childâs name but in the trust, it is not subject to the childâs creditors, or to being split with the childâs spouse in a divorce. Additionally, if Mom needs care within 5 years of the transfer, the home can be sold or borrowed against to help pay the cost of care. In other words, some of the asset can be used for care but not all of it need be consumed.

As you can see, a simple question, or so you thought. Is home transfer right for you and your family? Well, that depends on many factors, including the health of the parent, what other assets exist to pay for long term care and what goals the parent and child want to accomplish. One thing is for sure. Planning early makes things easier and the outcome so much better than waiting until a crisis hits.

Thinking About Transferring Your Home - Have You Considered the Tax Implications? - Part 1

Elder Law Today — Mon, 6 Apr 2009 10:00:00 GMT

"Mom wants to transfer her home to me. Do you think itâs a good idea?" A seemingly simple question and one that is probably one of the more common questions I am asked as an elder law attorney. But, not one that I can answer without knowing more. One size does not fit all.

The home is typically the largest asset people have and they are frequently and understandably emotionally attached to it. The primary residence also enjoys special tax treatment and that is what most people fail to consider when they make the decision. Let's run through the basics.

Real estate, like stocks, bonds and other investments, is subject to capital gains tax. If Mom bought her home for $100,000 and sells it for $500,000 she has what is called a "realized gain" and Uncle Sam will want to tax her on that gain. The gain is calculated by taking the amount she sold the home for and subtracting the âcost basisâ. The cost basis is her purchase price plus capital improvements (eg. addition, new roof, windows, siding) and closing costs.

In my example, if Mom made no improvements her gain is $400,000. The capital gains tax she must pay is based on her tax bracket. The higher the bracket the higher the tax, although capital gains tax rates are lower than for regular income. Letâs say her tax rate is 20% so her potential capital gains tax is $80,000. I say âpotentialâ because, if the home was her primary residence in 2 of the 5 years before she sold it then she can exclude up to $250,000 of gain. Married couples can exclude $500,000 of gain.

If Mom transfers her home to me and I donât make it my primary residence then when I sell I wonât be able to exclude any capital gains from tax. But, Mom still intends to live in the home. I donât want to sell it until after she passes away. Is there a way to avoid the capital gains tax, entirely?

Yes, by invoking something called the âstep up in basisâ. If Mom owns the home when she dies and passes it to me upon her death my cost basis when I sell is not what she paid for it, but rather what it was worth at the time of her death (or, alternatively, 6 months after her death). If I sell it immediately after she dies my capital gains is zero, and thus, there is no tax. If I sell after Mom dies, but she transferred it to me during her lifetime, then I owe Uncle Sam capital gains tax.

So, then thatâs it, right? Mom shouldnât transfer the home to me. Well, not so fast. What if Mom gets sick and needs long term care? Weâll tackle that one in next weekâs post.

Elder Law Today Show #16 Mom is Not Capable of Handling Her Affairs - When is a Guardianship Appropriate

Elder Law Today — Fri, 3 Apr 2009 18:10:00 GMT

Mom is unable to handle her affairs and either canât or wonât accept assistance from other family members. Or maybe one child lives close by and is taking advantage of mom and other family members, who live a distance away, are frustrated in their attempts to protect mom. Is guardianship a solution?

In Show 16 of his monthly elder law podcast, Yale Hauptman, a practicing elder law attorney discusses when a guardianship is possible and when it isnât. Does Mom need to be declared incompetent? How does that happen and what is the standard? Yale also discuss what options are available when a guardianship isnât possible, such as a conservatorship.

If your family is grappling with these issues or you know someone else who is, then youâll want to tune in to learn more.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

How a Declining Stock Market Can Cause a Long Term Care Nightmare

Elder Law Today — Mon, 30 Mar 2009 10:00:00 GMT

As the current economic crisis deepens, it is becoming increasingly clear that we are heading into uncharted waters, in so many respects. Specifically, however, I am talking about the long term care arena, and a recent phone call I received highlights this so clearly.

John called concerning his father. Dad owns a home in which he lives. Home health aides come into the home to assist Dad but as his health deteriorates and he needs increased care John believes that Dad will very soon need to move to a nursing facility. Now, here is where it gets interesting.

Dad took a reverse mortgage for $300,000 and he took it in a lump sum. Johnâs plan was to invest the money in the market, get a decent rate of return that would help meet Dadâs expenses. Well, we know what has happened in the past year. The stock market has headed south. Dadâs investment headed south too. He lost roughly half of his investment. Thatâs bad enough. But here is the problem. John transferred the money to an account in his name. Not because he intended to keep it, but because it was just easier to manage the funds that way.

When he did that, however, he caused a Medicaid transfer penalty. In New Jersey that penalty is approximately 3 and Â years. So what happens when Dad sells his home and uses the sale proceeds (less the amount he pays back to the bank) for his nursing home care? He will be ineligible for Medicaid unless John transfers back the money. Except that he doesnât have all of it.

I know. Youâre thinking, âWill Medicaid really deny Dadâs application if John can show that the loss in value occurred in the market, and that he didnât take the money?â I donât know. Maybe, maybe not. You see, we are living in unusual times. Many states are struggling with budget deficits. Medicaid is one of the biggest, if not the biggest, program for most states. If they donât have the money to fund these programs I can certainly see them applying the Medicaid rules as written and impose a penalty. If Dad is ineligible for 3 and Â years he may never live to receive Medicaid, something the government no doubt may consider when trying to balance its budget.

And just another reason why you canât afford to be unprepared when it comes to long term care.

Assisted Living Care - I'm Out of Money So Now What?

Elder Law Today — Mon, 23 Mar 2009 10:00:00 GMT

Dad has been living in an assisted living facility for 3 years at a cost of $4500 per month. He likes it there, is safe and well cared for. There is one small problem. He is running out of money and the family is becoming desperate.

Fortunately, some states have Medicaid programs that cover assisted living care but the rules can vary significantly from nursing home Medicaid. In New Jersey, for example, if income exceeds the Medicaid cap ($2022 per month in 2009) the assisted living program wonât, under any circumstances, be an option. For those needing nursing home care, on the other hand, we have two Medicaid programs, one for those who do not exceed the income cap and a second for those who do.

The application process for Medicaid can take several months or longer. If, for example, Dad becomes eligible and applies for Medicaid beginning in February, it might take until April, or longer in some cases, for him to receive approval. In the case of nursing home Medicaid whenever Dad is approved payments will be made on his behalf retroactive to when he first applied (assuming of course that he was eligible in that month). Not so for assisted living Medicaid. Approval is not retroactive.

As an elder law attorney, our focus with clients is on the financial requirements of Medicaid. I always, however, remind clients that we canât forget about the medical requirement. The applicant must meet the test of medical necessity for nursing home level care as determined by a Medicaid nurse who visits the applicant. In New Jersey, this is true even in the case of assisted living. It bears repeating. The assisted living Medicaid applicant must be certified as needing nursing home level care. Fail that test and the asset and income levels are irrelevant.

So, if Dad canât get Medicaid, what then? If he canât pay the bill he generally wonât be able to stay in the assisted living facility unless the family pays for his care. Not a great result but one the family could have avoided. Before he entered the facility a plan should have been put in place to cover the possibility that he could run out of money. In some cases that may involve moving assets to a trust, determining what public benefits he can or cannot receive and when, (such as VA Aid and Attendance benefits) or negotiating a contractual modification with the facility before initial entry. It may mean choosing a different, less expensive, facility or living arrangement. It all depends on oneâs particular situation.

The mistake that Dad and his family made is in not looking far enough down the road and failing to sit down with someone knowledgeable about the various issues and pitfalls, such as an elder law attorney. The lesson to be learned is that you canât wait until the money runs out to then answer the question "What do I do now?"

The Unpredictability of Alzheimers' Disease

Elder Law Today — Mon, 16 Mar 2009 10:00:00 GMT

So often, when working with families who are struggling to care for a loved one with dementia, the most frustrating part is the uncertainty of the condition from day to day. The recent case in Minnesota of Verne Gagne highlights that very clearly.

Verne Gagne was a prominent professional wrestler in his day with the American Wrestling Association, in the 1960âs and 70âs. He eventually lost his big stars, such as Hulk Hogan and Jesse Ventura, to the World Wrestling Federation. He is now 82, and suffers from Alzheimerâs disease, residing in a nursing home. That is where he had an altercation with a 97 year old resident and put a wrestling move on the resident, slamming his body to the ground. The other man broke his hip and died several weeks later. The police are investigating the incident but there is a consensus of opinion that Mr. Gagne should not be charged with a crime because he didnât know what he was doing. A tragic story but with similarities that are all too familiar to families who have loved ones with Alzheimerâs. It is the uncertain, sometimes violent and erratic, behavior that can be most frustrating and frightening.

Although no one can be sure what caused Verne Gagne to act in the way he did, we know that Alzheimerâs patients very often lose their short term memory but are able to conjure memories of events and people 40 or 50 years ago or more. Gagneâs skill as a wrestler made him more dangerous than the average resident. Firstly, he was more physically fit than the average resident. Secondly, while he was losing his short term memory, he was prone to recalling events from his past, such as his days wrestling. Perhaps it is that memory, programmed into his brain, that caused him to perform a wrestling move on his co-resident.

It is the unpredictability that often turns a familyâs world upside down,. Dad can be living comfortably in a facility one day and the next he can become extremely agitated and aggressive, causing the facility to ask the family to move him because they canât accommodate his needs, or because of concern for the safety of other residents.

It is just another reason why families cannot wait and react to a loved oneâs long term care needs. When possible, preventative measures need to be taken. So often, we see families plan as if Mom or Dadâs current condition, while tragic and upsetting, will remain static, unchanging. That is usually far from the case and misjudging the situation can be worse than anyone imagined.

Who knows what could have been done to prevent Verne Gagne from acting out, although, there was at least one previous altercation between the two residents. The lesson to be learned on a broader level, however, is to recognize the unpredictability of Alzheimerâs, and dementia in general. Take action before, not after, it becomes necessary. I am sure everyone involved in Verne Gagneâs case is reexamining what they could have done differently.

Married ... Well Not Really - A Long Term Care Quagmire

Elder Law Today — Mon, 9 Mar 2009 10:00:00 GMT

Jane calls us to relate the same problem that many Americans today are coping with, trying to care for aging parents. She calls because Dadâs health is rapidly deteriorating and she fears he will need nursing home care. I ask about Momâs health. Jane replies that she is healthy. And here is the twist, where the story becomes more complicated.

Jane tells me that Mom and Dad have been separated for years, never divorced, just living separate lives under separate roofs, with separate assets. âDad was never easy to live withâ, she tells me, âbut Mom wasnât the type to file for divorce. It wasnât acceptable.â âSoâ, she asks me, âwe can spend down Dadâs assets and then qualify him for Medicaid, right?â

âWellâ, I tell her, âit is a bit more complicated than thatâ. Under Medicaid rules, because they are still married, all their assets are combined for purposes of calculating how much to spend down. Medicaid rules do provide that if the applicant is separated from a spouse for at least one month then he will be treated as a single person and only his assets will count towards the asset spend down. However, there is no definition of what constitutes a separation and you can be sure that the State will scrutinize it very closely. Mom may still have to spend some of her assets for Dadâs care even though they have been living single lives for years. âIs there anything we can do,â Jane asks, as I hear the desperation in her voice.

Divorce is still an option, although it could be considerably more difficult if Dad doesnât have the mental capacity to understand the legal process and consent to a divorce settlement. There is also the matter of the State, again, scrutinizing the divorce, especially if Mom has accumulated and wants to keep more than 50% of the combined assets. You see, the State assumes the divorce was obtained for the purpose of qualifying for Medicaid. If Mom keeps more than half of the assets Dad would probably be turned down for benefits. There may also be other strategies that we have discussed for married couples that could be employed to preserve assets for Mom but, although they are married under the law, they are not really âtogetherâ. So preserving Dadâs assets for Mom and vice versa is not the goal.

As Jane puts it, âMom and Dad have lived separate lives for many years. Mom has struggled to accumulate her own assets and become self sufficient. How can I tell her that she may lose some of her hard earned money?â. I didnât have an answer for Jane. I do, however, have one for others who may one day be in that situation. If any of Janeâs story sounds familiar to you, donât wait till long term care is staring you in the face. Plan ahead and solve the problem before it reaches crisis proportions or youâll be faced with the dilemma that Jane and her family face.

Elder Law Today Podcast Show #15 - Youâve Spent Down all Your Money and Still Canât Get Medicaid â How Could This Happen?

Elder Law Today — Thu, 5 Mar 2009 09:20:00 GMT

Youâve spent down the remaining assets on Momâs care and have no more money left. You apply for Medicaid but are told, âSorry, Momâs not eligible for another 8 months.â How could this happen? What can you do to avoid this horrific outcome?

In Show 15 of his monthly Elder Law Today Podcast, practicing elder law attorney, Yale Hauptman, explains why spending down assets may not be as simple as you think. Medicaid rules are complex and it is easy to get tripped up. Well meaning citizens can unwittingly cause themselves to lose these essential benefits by creating transfers that are subject to a Medicaid transfer penalty.

Learn the danger of paying home health aides cash and why that could result in long penalty periods. Discover why gifts made 4+ years before Medicaid is applied for can come back to haunt you. More importantly, learn how you can avoid these Medicaid traps and how to correct the mistakes youâve already made. If you wait till you apply itâs too late.

This episode is for anyone who cannot afford the cost of long term care indefinitely and may need to apply for government benefits at some time in the future. Important information that youâll want to listen to carefully.

Click to listen

To subscribe to our podcasts click here

Please send us your feedback

The Home - To Transfer or Not to Transfer - Part 2

Elder Law Today — Mon, 2 Mar 2009 11:00:00 GMT

As we discussed last week, Joe wants to transfer his home to Jim, who lives there with his wife and children. But letâs change the facts a bit. Joe is not healthy but has the early stages of dementia and needs some in home assistance. It is possible that within 5 years he will need nursing home care, so we are concerned about the 5 year Medicaid lookback. What options do Joe and Jim have?

One possibility is for Jim to buy the home at a price that he can afford but that may be below fair market value. If, for example, he purchases the home for $200,000 and it is worth $450,000, then $250,000 is considered a gift subject to the Medicaid transfer penalty. Jim can spend down the $200,000 for his care but if he runs out of money then Jim may need to cover the cost of care until the 5 year time frame expires.

Now that Joe lives in Jimâs home, they could enter into an agreement for Joe to pay rent. If Jim or his wife is providing care that Joe otherwise would need to hire an aide to do, then Joe could pay Jim to do it. This is what is called a personal services contract. Food, utilities, and other goods and services that Jim may be providing, can and should be paid for by Joe. Perhaps the home needs to be modified to allow Joe to live there. Jim could spend money to make those improvements when they become necessary, borrowing against the home.

Some or all of these strategies may be ways for Jim to, in essence, pay Joe for some of the remaining uncompensated value of Joeâs home, over time, in a way that may be more affordable for Jim. However, each of these financial arrangements must be in writing. Thatâs because Medicaid presumes that any transfers of money or services is a gift, subject to a transfer penalty, unless it is in writing and at fair value.

But, a word of caution. The Medicaid rules are complicated. What will work in one state may not work in another. What may suitable for one family may be entirely the wrong solution for another. If you try to do it yourself and get it wrong, you may find yourself with a lengthy period of Medicaid ineligibility and no money to pay for care. You need a knowledgeable and trusted elder law advisor to guide you through the maze of laws and regulations that leave hidden traps for the unwary.

The Home - To Transfer or Not to Transfer - Part 1

Elder Law Today — Mon, 23 Feb 2009 11:00:00 GMT

Home ownership has long been a large part of the American dream. Through the course of the 20th century, the percentage of Americans owning their homes rose considerably. In many of these homes three generations lived under one roof. Today, there still are many 3 generations homes. The reasons for it are the same. The grandparents often help care for their grandchildren while the parents are working. Sometimes the grandparents need assistance and canât live alone any longer.

There is, however, a big difference between the households of the 20th century and those of the 21st century, which generation owns the home. The parent homeowner of the 20th century now is the grandparent homeowner of the 21st century.

So now that homeowner, weâll call him Joe, is in his 70âs. His son Jim and Jimâs wife and kids live with Joe. They are concerned that as Joe ages and needs long term care they may lose the house. Jim wants to buy a house but canât afford it, even in todayâs depressed real estate market. So they come upon a solution. Joe will transfer his house to Jim or perhaps sell to Jim at a reduced price, maybe enough to pay off Joeâs mortgage. Jim will have a home of his own to raise his family and Joe will have the support of family should he need it. A win â win scenario for everyone. Right?

Well, not so fast. If Jim doesnât pay fair market value for the home then the uncompensated amount is treated as a transfer for less than fair value should Joe need Medicaid benefits in the next five years to pay for long term care.

What to do? Joe and Jim must understand that if Joe needs care there must be a plan in place to cover the cost of that care. That plan could involve VA benefits if Joe is a veteran. It could also include using Joeâs funds to pay for his care and long term care insurance benefits. But, if these sources of payment still leave a gap then Jim will need to borrow against the home to pay for Joeâs care, which may mean putting off tapping into the equity to pay for renovations or other expenses.

Provided these contingencies are covered, however, the home transfer can work well. What happens, however, if Joe is not healthy when contemplating a transfer, but instead has dementia and already needs some care. In that case, the home transfer is a little more complicated but Iâll address that in the next weekâs post.

A Two Generation Family Long Term Care Crisis - Part 2

Elder Law Today — Mon, 16 Feb 2009 11:00:00 GMT

So, in last weekâs blog I presented a common scenario, Mom and Dad both needing long term care and nothing but a house left in their names. The children are paying for their care to the tune of $10,000 per month. We get Dad on Medicaid first.

Now we work on getting Mom into a nursing home and then apply for Medicaid for her. The home will have to be sold (unless there is a family member living there but weâll address that exception in another issue) but it wonât hold up Momâs Medicaid, which is important, since it not so easy these days to sell in a what is a down market. Once the home is sold Mom will lose her eligibility for Medicaid and will need to private pay from the proceeds of the sale. She also could keep her Medicaid eligibility and pay the proceeds to the State to reimburse it for benefits paid up till that point. Which option is better depends on how much is realized from the sale and how much is owed to the State. But, keep in mind that the State pays the nursing home at a lower rate than you or I would pay (approximately 50% less).

And, what about the money that the children paid out of their own pocket for Mom and Dadâs care? They can be reimbursed from the proceeds once they sell the house. However, everything must be documented because Medicaid presumes that transfers between family members are gifts, not loans. If it is a loan then there must be a written agreement. The best practice is for there to be a recorded mortgage. At the closing the mortgage is paid off and a discharge is recorded by the Buyerâs attorney. The children are reimbursed directly and there is a record as far as Medicaid is concerned.

In the end, the parents are paying for their care from their own assets, the children are paid back (money which they will need for their own retirement and long term care needs) and depending on how much long term care is needed and what the home sells for, there may even be some amount left to transfer to the next generation in the form of an inheritance, after the State is reimbursed for benefits they paid out on Mom and Dadâs behalf.

A Two Generation Family Long Term Care Crisis - Part 1

Elder Law Today — Mon, 9 Feb 2009 11:00:00 GMT

Mom and Dad are still living in their home which they own. They both need round the clock nursing home level care and have home health aides living with them. This has been going on for a number of years and they have spent down all their assets on care and maintaining the home. Now the children are spending their own money, in some cases as much as $10,000 per month or more, with no end in sight. They want to sell the home but in todayâs economy and real estate market that isnât as easy as it once was. Their current predicament is taxing on the family, both financially and emotionally. Last week I talked about a reverse mortgage as a possible solution. Is there any other way out?

Actually, there is. There is a way to move both parents into a nursing home, get them on Medicaid and reimburse the children for monies they paid for their parentsâ care. Medicaid rules are very complex and the timing of each step in the process is critical but it can be done. Hereâs how it works.

The first step is to get one of the parents into a nursing home. Letâs say it is Dad. If he is in the hospital already (often the case when we get the call) then he should be transferred from there to the nursing home. We then apply for Medicaid. The house is an exempt asset (ie. not a countable asset for Medicaid eligibility purposes) since Mom is still living there. Once we get Dad approved for Medicaid there is what is called a âdivision of assetsâ. Whatever is Momâs is now hers, to be spent on her care but not on Dadâs. This is the key. In next weekâs blog Iâll discuss the next step, getting Mom on Medicaid.

Elder Law Today Podast Show #14 Married Couple - Crisis Long Term Care Planning

Elder Law Today — Thu, 5 Feb 2009 14:16:00 GMT

So after listening to Show 13 youâre thinking, we should have taken action immediately after Dadâs diagnosis but didnât so now what do we do? In the 14^th installment of his audio podcast, Yale Hauptman discusses just that scenario, crisis planning. Although the picture is more complicated all hope is not lost. Yale discusses some of the options still available to families, but timing is a key.

Yale explains how the home as an exempt asset under Medicaid rules can be used to help the healthy spouse preserve more than the maximum otherwise allowable under Medicaid rules. That could include buying a bigger house or making improvements on a current home. Learn why a reverse mortgage now is replacing a home equity loan or line of credit as the only option in crisis planning for many families. Yale also discusses ways to pay down debt that benefits the healthy spouse and other ways to help preserve hard earned money for the community spouse, who just wonât be left with much under current Medicaid rules without creative planning.

Be sure to tune in for a concise 10 minute discussion of Medicaid crisis planning that will give you an overview of what still is possible, even if you have failed to early action, but time is running out.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

Reverse Mortgages - Another Look in Today's Economic Climate

Elder Law Today — Mon, 2 Feb 2009 11:00:00 GMT

Mom and Dad are living in their home but their health is failing. They do not yet need nursing home level care, but do need some assistance on a daily basis. Their children are running back and forth helping to provide care but it is just too difficult to do on a long term basis. The plan is to move them to an assisted living facility. The problem, however, is that they have limited funds to pay for that care. While they intend to sell the home, that wonât happen overnight.

An option that has worked well in the past is to take a home equity line of credit and use it to pay the monthly assisted living fee and real estate taxes, insurance and maintenance until the home is sold. Except, in todayâs economy with the financial industry itself being bailed out, banks are no longer approving these loans, concerned about the creditworthiness of borrowers and the risk of default. So what now?

It may be time to look at a reverse mortgage. Increasingly, this is the only option for seniors. The concern about defaulting loans is not an issue because, by its terms, a reverse mortgage wonât be repaid until the borrower dies or sells the home. The ability of the borrower to repay isnât a factor because he/she makes no monthly payments. Hence the term âreverseâ.

Over the years I have seen many cases where reverse mortgages have enabled seniors to stay in homes they really couldnât afford any longer and probably should have sold. If they outlive the funds borrowed, typically they are in poor health and now have exhausted their assets completely. It is also true that these loans carry higher transactional fees than traditional mortgages.

However, here, the plan is to sell the home as soon as possible to pay for the next level of care, not hang on too long. And, if a traditional mortgage isnât an option any longer, the higher fees become acceptable given the alternative of the children taking money from their own savings to pay the cost of Mom and Dadâs care. With an economy in recession and unemployment rates at their highest in a generation many children donât have the funds to pay for their parentsâ long term care.

Thatâs why for many, it may be time to take a closer look at the reverse mortgage.

Transferring Assets - A Real Life Picture

Elder Law Today — Mon, 26 Jan 2009 11:00:00 GMT

When I talk with people about long term care and the Medicaid program I sometimes hear very strong opinions that "it is wrong to transfer assets in order to qualify for Medicaid to pay for nursing home care". The person making the statement, however, typically hasnât really given any thought to what that means in real life situations.

Let me give an example. Mom is 85 years old and living alone. While she clearly shows the signs of aging and should have put in place a plan in case she needs long term care, like most people, she hasnât considered it at all. She receives a $100,000 inheritance from her brother. She has always considered her family first, ahead of her own needs, and wants to transfer this inheritance to her son, who is struggling to make ends meet and just lost his job. She believes she has everything she needs financially and her maternal instincts are to help her child. You may or may not believe she is being foolish in her thinking but it is her genuine belief.

Times are tough. Families do what they always do. They pitch in and help each other out. Except that if Mom gives this money to her son and needs nursing home care in the next 5 years she wonât qualify for Medicaid because of the transfer. So, is Mom trying to beat the system, transferring assets to qualify for Medicaid? No, I think we all would agree that this is not what is motivating her. But itâs not that simple. It never is in the real world. Mom ought to be thinking about her long term care needs but she isnât.

Had she consulted with an elder law attorney she could have set up a plan that would allow her son to receive the inheritance (or she and her son could share the inheritance) by setting up a trust. And when I sat down with Mom and explained to her what would happen if she needs long term care, she very quickly agreed that it was not a good idea to simply transfer the inheritance to her son. She just had never had that conversation before and no one ever explained it to her in that way.

So, instead of having that conversation after she received the money, if we had it before the inheritance had been received, my advice to Mom would have been to keep the money in a trust, in case she needs it for long term care, but that it would be possible to transfer some of it to her son, should he need it. We would have to manage the trust very carefully but it is clearly doable. I wouldnât call this beating the system. It is a case of families pulling together in times of need. Isnât that what families are supposed to do?

Why are Some Wills 2 Pages and Others 20 - The Alternate Executor

Elder Law Today — Mon, 19 Jan 2009 11:00:00 GMT

Very often, when I prepare wills, powers of attorney and health care directives (living wills) for clients they react with surprise when they see the length of my documents. âWhyâ, they say, âis the will you are preparing 20+ pages when my previous one was only 2?â âThe document is designed to cover as many scenarios as possibleâ, I explain, ânot knowing which scenario may in fact occurâ. It is not good enough to simply address the most likely ones, especially if yours turns out to be one of the uncommon ones.

Narrowly or poorly drafted wills can cause unpleasant and expensive results. Letâs take the simple task of designating an executor, the person who is appointed the official representative of the estate and is charged with gathering the assets, paying the debts and taxes, if any, and following the instructions set forth in the will and making final distributions to the heirs. It is a good idea to have one or more backup or alternate executors, in case someone canât or wonât serve, when the time comes.

Now, most people would think in terms of the executor dying as the reason a back up is necessary, but that is just one possible scenario. Yet, I not infrequently see a will drawn up that states âif my executor dies then I appoint my alternate to serveâ. Letâs say Child A is the executor and Child B is the alternate. Mom dies and A doesnât want to serve. No problem. A will step aside in favor of B, right?. Except that A is alive and the will only provides that B can serve if A has died. So, what now?

B can serve as administrator. Same role and responsibilities but some very important differences. An executor can serve without a bond if the will so provides but an administrator cannot. And that can be an expensive difference. The bond acts similar to an insurance policy in that the company issuing the bond will pay out the inheritance if the assets are lost or misappropriated. The bigger the estate the higher the cost, sometimes tens of thousands of dollars. While a bond can be very important, many close knit families see it as unnecessary. Unfortunately, in our case there is no choice. Had the will stated that the alternate can step in if the executor dies or otherwise canât or wonât serve, then the bond could have been avoided. A very expensive mistake and a reason you want to be sure that the attorney drafting your will is experienced in estate planning or elder law.

Elder Law Today Podcast Show #13 Married Couple - Early Action Long Term Care Planning

Elder Law Today — Thu, 15 Jan 2009 03:22:00 GMT

In the first show of Season 2 of his Elder Law Today Podcast, by listener request, Yale Hauptman has modified the format and shortened the length of his audio podcast. In a concise 10 minutes, Yale presents a common scenario that many families today are faced with. Dad has just recently been diagnosed with early stages of Alzheimerâs Disease (you can substitute any other long term care illness because the issues remain the same). What lies next for Mom and Dad? What should the family be doing and when?

Yale runs through the planning strategies that ought to be employed to insure the best care possible for Dad, preferably at home rather than in a nursing home, and also to protect Mom so that all their hard earned savings are not spent on Dadâs long term care, leaving Mom with very little to live on.

Yale provides an overview of the long term care system, the benefit of setting aside assets in trust and the various government benefits, including VA and Medicaid, that may be able to play a role in Mom and Dadâs journey through the long term care system. Learn why it is so important to take these steps as soon as possible and why inaction can be so costly.

Episode 13 is a canât miss listen for families who are unsure what to do and where to start.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

Alzheimer's Disease - A Long Term Care Planning Lesson

Elder Law Today — Mon, 12 Jan 2009 11:00:00 GMT

Mom is in her late 40's and divorced. She owns her own home worth approximately $250,000 but with a substantial mortgage with a balance of $150,000. Probably describes a lot of people. Except that Mom has Alzheimerâs. While the disease mostly affects the elderly, early onset Alzheimerâs is not uncommon. It is hereditary and can hit people in their 30âs.

I received a call from Jane, her daughter. Mom canât work and has no income. The home is a mess and falling into disrepair because she can no longer take care of it. She is temporarily living with her father who is in his late 70âs. He pays the mortgage, taxes and upkeep on her home, although he is getting on in years and his health is failing. The family has no direction and is just living day by day with no idea when the nightmare will end.

Jane asked if we could help save the home. Could the home be transferred out of Momâs name? My answer, unfortunately, was no. âHow long ago was Mom diagnosedâ, I asked. Jane told me it was about 3 years ago. Mom refused to consider moving and Jane and her grandfather have been supporting Mom to this point but now they have reached a point where that is no longer possible.

So now the home is on the market. But after closing costs and paying off the mortgage there isnât much left. She was also hoping to recoup for herself and her grandfather the money they spent supporting Mom. Most importantly, there is the matter of providing care for Mom, hopefully in an assisted living facility at a cost of $4500 per month. When Momâs condition worsens the next step is a nursing home and that costs $9000 per month.

I sympathized with her but didnât have any magic solution. She simply waited too long before making what no doubt are tough decisions. So what should she have done?

3 years ago when the diagnosis was made is when the family needed to act. Selling the home and/or moving assets into a trust and out of Momâs name would have made sense. Because there is a 5 year lookback for Medicaid benefits the family would need to manage Momâs care and costs during that time period. But, managed correctly, they could have had assets left after 5 years, in trust, that could be used together with available government benefits to get the best care possible for Mom. They would have had options.

Now, they are selling a home falling into disrepair, in a down market. Not the best scenario for Mom who needs as much money as she can squeeze out of the sale to provide for her future care. A lesson for us all. If we delay making tough decisions they only get tougher.

I felt the despair in Janeâs voice. âHow can our country let this happen?â, she asked. I didnât have an answer for that one either.

The Problem of Second Marriages and Long Term Care

Elder Law Today — Mon, 5 Jan 2009 11:00:00 GMT

A very common scenario we see is what Iâll call the case of the late in life second marriage. We all need companionship, especially after a spouse has died or after going through divorce. Itâs lonely being alone. So we have Joe and Mary. They marry in their 60âs. He has 2 children from a previous marriage and she has 3 from her first marriage.

2 years later Joeâs health starts to deteriorate. Itâs looking like he will need long term care. Mary comes to see me. âI love Joe but I am concerned for myself as wellâ, she says. âWill his long term care needs eat up our assets? We entered into a prenuptial agreement before we married. I had much more financially then he did. So please review it and tell me my assets are protected.â

I first explain to Mary that before the prenuptial agreement can protect her assets she must first get divorced. A prenuptial agreement basically is a contract that predetermines, in the event of divorce, how assets are to be split. In most cases the parties take back what was theirs and split what they acquired jointly during the marriage.

Letâs go back to our couple. Joe doesnât have much and very quickly will run out of funds and need to apply for Medicaid. But, the only way Mary can preserve her assets is to divorce Joe and you can be sure that the State is going to look very closely at that prenuptial agreement before they approve Joe for Medicaid.

I explain all this to Mary. This isnât much of a choice. She loves Joe and emotionally canât reconcile divorcing him in his time of greatest need. âIs there any alternative?â, she asks.

Actually, there is. She can move her assets to a trust and after 5 years Joe can qualify for Medicaid. In this way she can spend as much of her assets for his care as she wants but not be forced to spend it all, leaving nothing for herself to live on or to provide for her own long term care needs.

When is the ideal time to do that? Really, she should have consulted an elder law attorney before or shortly after the marriage. In her case, it still isn't too late since it doesn't appear that Joe is close to needing long term care yet. However, the longer she waits the smaller that window of opportunity becomes. A little preventative medicine can go a long, long way.

The Savages

Elder Law Today — Mon, 22 Dec 2008 01:45:00 GMT

This weekend I rented an excellent movie entitled "The Savages". Starring Philip Seymour Hoffman, Laura Linney and Philip Bosco, it is the story of a brother and sister, estranged from their father, who receive a call when Dad's girlfriend, whom he has been living with for 20 years, dies.

Dad has dementia and the children are told by his girlfriend's children that they must take Dad back with them since the home is not his. They fly him back to New York and place him in a nursing home.

The story deals with the relationships of the characters, the upheaval of their lives and the typical issues that we all must deal with, from finding the right long term care setting to sitting down with Dad to discuss his living will and burial arrangements to the conflicting emotions felt by the children who are trying to do the right thing.

The film even touches upon second marriages (or in this case a long term relationship). The children are stunned to learn that Dad has no right to live in the home because he signed an agreement waiving all rights. Having little money, his children must place him in a nursing home and apply for Medicaid.

The movie is both funny and sad but it is comforting to know that we all, regardless of wealth, cannot escape the issues of aging and dying and that sometimes the experience can bring families closer together.

Elder Law Today Podcast Show #12 The Talk - How to Communicate with your Parents about Aging and Long Term Care

Elder Law Today — Thu, 4 Dec 2008 12:10:00 GMT

In show number 12 Yale Hauptman, a practicing elder law attorney sits down with Barbara Salvador of Nannymama.com and Barbara Friesner of Agewiseliving.com, a generational coach and author of âThe Ultimate Caregiverâs Guideâ to discuss how to have âthe talkâ with aging parents.

Generational differences and lack of communication pose some real challenges to children who are trying to help care for their parents. So many families never discuss long term care and finances until a crisis hits and thatâs just too late. If you find yourself in the situation of not knowing what plans your parents have in place, what their wishes are with respect to long term care, or where all their important legal documents are â and you have no idea how to start the conversation - this is a must listen.

As with any interpersonal relationship, communication is paramount. How we say things is as important as the content itself. Yale and his guests discuss the best way to break the ice and the dos and donâts of approaching a very difficult topic in a way that is sensitive to the fears and concerns of aging family members, intending to bring families together, instead of pulling them apart.

This 12^th show contains valuable information that every family will find helpful in dealing with some of the most challenging issues we all face today.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

Elder Law Today Podcast Show #11 The Current Economic Crisis. What Does it Mean for Medicaid and Long Term Care

Elder Law Today — Sat, 8 Nov 2008 00:23:00 GMT

Much has happened in both the economic and political arenas since the last show, including the steep drop in the stock markets and the election of President Obama and changing of power in Congress from Republican to Democrat. In show number 11 of his podcast, Elder Law Today, practicing elder law attorney, Yale Hauptman discusses how this all will affect the average American who needs long term care.

Some of these changes have already begun to occur. Yale explains how rising unemployment, the government bailout of failing financial companies and the drop in stock markets and thereby, peopleâs savings, have all combined to create a âperfect stormâ of conditions that will cause State Medicaid offices to delay and deny a greater number of Medicaid applications for long term care.

He discusses some of the scenarios in his office where this is already happening. Take the case of the daughter who took cash out for Mom over the years but didnât keep good records as to how it was spent or the son who paid for Mom and Dadâs care at home out of his own funds when they had none left and now wants to be reimbursed from the sale of their home when they enter a nursing home. In both cases Medicaid has scrutinized these transactions and delayed approval.

We are now almost 3 years removed from the last round of changes to the Medicaid laws instituted under the Deficit Reduction Act (DRA). Learn why this law will have even more impact on the ability to qualify for government benefits as we go forward.

This 11^th show is one you canât afford to miss, with information and ideas that you need to act on now to be sure to protect yourself and your loved ones going forward. Be sure to tune in.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

Son Responsible For Mom's Nursing Home Bill

Elder Law Today — Sun, 19 Oct 2008 17:13:00 GMT

Many times the children of my elderly clients ask whether they can be held responsible for Mom or Dadâs nursing home bill. My answer always was that there wasnât anything to worry about unless you take your parents money. That no longer appears to be the case.

A recent case in Connecticut highlights how the new Medicaid laws passed as part of the Deficit Reduction Act of 2005 are really hurting residents and nursing homes alike and now potentially also affecting other family members. In that court case, the nursing home residentâs son signed the admission agreement on behalf of his mother. As in most nursing home agreements Son was asked to sign as responsible party, which he did not do. Nevertheless, Nursing Home advised him verbally that he was the responsible party.

Son then applied for Medicaid benefits on behalf of Mom. Son did not, however, follow through on the application process in a timely manner. He failed to provide all the information and documentation that the State needed and he did not spend down Momâs assets quickly enough, delaying the applicationâs approval. As a result, months of benefits were lost, never to be regained, benefits that Nursing Home would have received.

Nursing Home sued Son on a breach of contract claim. It claimed that Son undertook an obligation on Momâs behalf, when he signed the admission agreement, to promptly pursue Medicaid benefits. Son, in response, argued that he never signed the agreement so there was no contractual obligation on his part. The court sided with Nursing Home, finding that an oral contract was created between the two parties and that Son violated it by not conscientiously following through.

A good result for the nursing home, right? Well, not really, when you account for the time and money it took Nursing Home to get the judgment. It then has to collect on that judgment, assuming Son doesnât appeal the decision, which will cause the matter to drag on even further. And it certainly wasnât a good result for son, who lost and now is responsible for paying Momâs bill.

So how could this have turned out better? If Nursing Home had encouraged Son to retain an elder law attorney to represent Mom in the Medicaid application process. Sure, there is an expense involved in hiring someone. But in the end Nursing Home would have received Medicaid benefits when it should have and Son would not be responsible for paying nursing home. A winning result for all.

The Risk of Going Through Medicaid Application Process Alone

Elder Law Today — Sun, 5 Oct 2008 21:14:00 GMT

When money is running out and the family is faced with the need to apply for Medicaid to pay for long term care the question becomes âshould we do this ourselves or should we hire an elder law attorney to help?â Sometimes the hospital or the nursing home tells the family they will qualify without too much difficulty. So they try to do it themselves.

The pitfalls of going it alone are many and varied, especially since the latest round of Medicaid changes effective February, 2006 made the laws and regulations in this area much more complicated. Timing is critical. By that, I mean to say, that when you spend down assets and what assets you have at a certain point in time will have an impact on qualifying for benefits. Let me illustrate by way of example.

John and Mary were in their 80âs and living in their home, which they owned. They had other countable assets of approximately $50,000. John and Mary had done no planning for their long term care needs. John became ill in October, was admitted to the hospital and then to a nursing home for rehabilitative services. His condition was such, that he could not go home and needed to remain in the nursing home on a long term basis, at a private pay cost of $10,000 per month.

Mary was told by various personnel at the hospital and the nursing home that based on their level of assets âJohn would qualify for Medicaidâ in January and they arranged for her to meet with a Medicaid caseworker to make an application for benefits. Being stressed out by the reality that John would not go home and uncomfortable with the complicated process she did not understand that for John to qualify she would have to spend down a portion of their assets to get below a certain dollar amount. In her case that number was $27,000. The caseworker explained this to her at the interview but, quite frankly, she was receiving so much information that she really didnât fully understand how important that was.

She waited for medical and nursing home bills to come in. She figured she owed the money so it was as good as spent. In other words, in her mind she didnât have $50,000. They owed $28,000 so she had $22,000 left. Not true under Medicaid rules. Until she wrote those checks, John and Mary were âoverresourcedâ, Medicaidâs term for having too much money to qualify for benefits. If you are overresourced by even $1.00 you wonât get Medicaid for that month. You will never get Medicaid for that month.

Had she paid those bills right away John would have qualified for benefits in January. Instead, she didnât write those checks until June, meaning John didnât qualify for Medicaid until July. Great, so Medicaid picked up the nursing home bill in July. There was one small problem. Who was going to pay the nursing home bill for January through June? The answer was John and Mary, and at the private pay rate of $10,000 per month that was $60,000. The shame is that this didnât need to happen.

This example illustrates the pitfalls of going it alone. The rules are quite complicated and timing is critical. You donât want to be left with a huge nursing home bill which you canât pay. The nursing home doesnât really want to be in the position of suing their residents. Having a knowledgeable elder law attorney representing you can save huge dollars and huge amounts of stress.

So how did John and Maryâs problem get resolved? She hired us to negotiate with the nursing home. We were able to reduce the bill a little bit and since she only had $22,000 in liquid assets and could not afford to pay the bill now, the home agreed to take a mortgage against her home. Theyâll get paid when the home is sold. Not the best end result but as good as could be expected.

Elder Law Today Show #10 The Ins and Outs of FDIC Insurance

Elder Law Today — Wed, 1 Oct 2008 13:25:00 GMT

In show number 10 of his podcast, Elder Law Today, practicing elder law attorney, Yale Hauptman interviews Anthony Aiello, a compliance officer at Commerce TD Bank on the hot topic of FDIC insurance. For many Americans, the collapse of financial giants such as Lehman Brothers, AIG, Merrill Lynch and Wachovia reminds them of other troubled economic times. Many seniors grew up during the Great Depression of the 1930âs and remember the Savings and Loan scandal of the late 1970âs and early 1980âs. The FDIC insurance program was instituted in the 1933 to protect depositors who lost money when their banks went under. Many Americans are now concerned once again about whether their assets are protected.

Yale and Anthony discuss the basics of how this insurance coverage works. Learn about the ways to stretch the amount of insurance coverage well beyond the $100,000 limit which most people assume, erroneously, is the maximum. There are different categories of accounts, which are treated separately for insurance purposes. For example, coverage for IRA and other retirement accounts is now $250,000 per person.

In his âIn the Newsâ segment, Yale discusses a recent government inquiry into accusations that a company which owns assisted living facilities in 20 states is kicking out residents once they have run out of money and apply for Medicaid. He also discusses a recent court case which highlights the pitfalls of having a joint owner on a bank account who then applies for Medicaid. In that New Jersey case, the judge sided with the applicant but learn why the fight may not yet be over. Finally, Yale talks about a new federal law effective October 1, 2008, intended to protect Americans from abusive practices in the sale of reverse mortgages to seniors.

This 10^th show is timely and informative in light of the current turbulent economic times. Be sure to tune in.

Click here to listen to the show

Visit the FDIC website for more information.

To subscribe to our podcasts click here

Please send us your feedback

How to Lose Medicaid

Elder Law Today — Mon, 15 Sep 2008 22:28:00 GMT

The long term care system is a maze and Medicaid in particular is quite complicated. A recent call to our office illustrates that even after receiving Medicaid there are pitfalls to avoid that can cause one to lose Medicaid.

Mary (names have been changed) called us because she had been sued for $80,000 by the nursing home caring for her mother, Jane. Jane had entered Nursing Home on private pay and after spending down her assets qualified for Medicaid. Under Medicaid rules Janeâs Social Security check went to Nursing Home and Medicaid paid the rest of the bill. Mary and Nursing Home arranged for the check to go directly to Nursing Home and everything was fine for 8 years or so.

Mary then moved out of state. Apparently, Social Security assumed that Jane moved too and started sending her checks to her bank account. Mary did not take notice of this and neither, at least for several months, did Nursing Home. After 8 years, Jane lost her Medicaid eligibility.

How could this happen? While Mary does not yet have all the facts (sheâll find out more as the lawsuit winds through the court system), hereâs what probably occurred. Because Janeâs income was accumulating in her account, once the balance exceeded $2000 she lost Medicaid eligibility. Janeâs Social Security is treated as income in the month received but if still in her possession the next month then it is treated as an asset. And each month her balance remained over $2000 she was Medicaid ineligible â and those lost months can never be recovered. So every month Jane was running up a bill at the nursing homeâs private pay rate.

It is not clear why Nursing Home didnât notice the change or why it took them several months to write to Mary. They did send Mary a new Medicaid application to complete and file but she either didnât receive it or didnât act on it. It appears that nobody on either side was following up on it so Medicaid was never reinstated for the last year of Janeâs life. Now Nursing Home is looking to recoup a yearâs worth of lost payments and Mary is trying to avoid a judgment that she canât afford to pay.

The sad thing is that this all could have been avoided. Medicaid rules are quite complex. Janeâs family and the nursing home needed to keep in contact and stay on top of any changes that could affect Medicaid eligibility. It is easy to miss something that can very quickly result in the loss of benefits.

What you would think is the most insignificant change can cause a chain of events that will lead to losing benefits. You canât just go on autopilot. Thatâs when things fall through the cracks. That is exactly what happened here. And now both sides are pointing fingers at each other. Had Mary retained an elder law attorney to file the Medicaid application, both resident and nursing home would have benefited and perhaps this unfortunate result could have been avoided. An important lesson to be learned.

Elder Law Today Podcast Show #9 Planning Needs of Elderly Parent with Disabled Adult Child

Elder Law Today — Tue, 2 Sep 2008 00:46:00 GMT

In show number 9 of his podcast, Elder Law Today, practicing elder law attorney, Yale Hauptman welcomes as his guest Lauren J. Siegel, a registered nurse and certified life care planner. Lauren explains how she is typically brought into lawsuits brought by parents of disabled minor children and asked to devise a plan of care covering the various needs that the child may have over his/her life.

Yale and Lauren then discuss how this same planning is just as important to elderly parents of adult disabled children. Parents must address care issues for those children after they pass away and how to fund it. Yale points out that any assets intended to fund that care must be properly set aside while the parent is healthy or risk being spent down entirely for the parentâs long term care needs, leaving nothing for the childâs needs. Lauren offers some suggestions for parents to consider.

Yale also introduces a new âIn the Newsâ segment. He discusses a recent Pennsylvania court case that highlights the need to be specific in a power of attorney as to what gifting powers are given to an agent. He also discusses a recent Connecticut case in which a child was held responsible financially to pay momâs nursing bill when he failed to immediately provide all information and documents necessary to complete her application for Medicaid benefits. Yale also updates listeners on a bill introduced in Congress to extend the federal estate exemption amount to $3,500,000 for 2010 and beyond and highlights the continuing trend by employers to provide services to their employees who are caring for elderly parents and loved ones.

This 9^th show is packed with important information that anyone who is elderly or caring for, or concerned about, an elderly loved one, wonât want to miss.

Click to listen to the show

Visit Lauren's LJS Healthcare website

To subscribe to our podcasts click here

Please send us your feedback

Pitfalls of Improperly Drafted Will

Elder Law Today — Wed, 27 Aug 2008 16:00:00 GMT

A number of years ago, I received a call from a potential client who had the following tale to tell. The womanâs husband had died leaving a will and some assets, one of which was a 401k. The marriage was a second for her husband, who had 2 sons from his first marriage. While he was single he had changed the beneficiaries of his life insurance and 401k plan to his sons and had redone his will.

After his second marriage, the husband and his new wife bought a new home together. They asked their real estate attorney, who handled the purchase for them, to draft new wills as well. The husband listed for his attorney the assets he wanted to pass to his sons and which to his new wife. The 401k he wanted to go to his wife. Unfortunately, the attorney didnât understand the difference between probate and non-probate assets. So when he wrote a will that specifically left the 401k to the wife, he didnât know that the will would have no effect on this asset because the beneficiary designations on file with the custodian of the 401k plan still listed the sons from the first marriage.

When the husband died, the wife received a big shock when she was told that she had no interest in the $500,000 account. Thatâs because a will doesnât automatically control the distribution of all your assets. Contract property such as life insurance, annuities and retirement accounts pass in accordance with whom you have designated on the beneficiary forms completed and filed with the life insurance and annuity companies or retirement account custodians. Other types of property pass by operation of law such as joint accounts with right of survivorship or real estate that is owned by husband and wife. When one owner dies the property automatically passes to the surviving owner. It does not matter what the will says.

That is what happened in our story. The 401k is contract property so it passed according to the beneficiary designation form on file, not by the will. The wife tried unsuccessfully to get a court order directing the funds be paid to her. She did recover about half of the account balance, filing a malpractice action against the attorney who drafted her husbandâs will, for failing to recognize that listing the 401k account in the will was meaningless.

The moral of the story is that although many people think drafting a will is simple and often undertake to do it themselves or ask the attorney who did other work for them to handle this task as well, they may miss important steps that must be taken that can save a lot of heartache and money.

Elder Law Today Podcast Show #8 Medicaid Horror Stories

Elder Law Today — Wed, 6 Aug 2008 20:10:00 GMT

In show number 8 of his podcast, Elder Law Today, practicing elder law attorney, Yale Hauptman, discusses some real life case studies to illustrate how the Medicaid laws can trip people up and cause much stress and financial loss for the unprepared and unwary.

Yale first discusses the case of the granddaughter caring for her grandmother full time, with Grandmom providing the funds to support both of them. Things go wrong when Grandmomâs condition deteriorates to the point where nursing home care is necessary and the money has run out. Learn the mistakes that this family made and why it has become much harder to fix them under the new Medicaid laws.

Next, Yale discusses a call he received from a son in Mississippi who took in his parents to his own home, moving them from New Jersey. The parents transferred their home to Son, who then put it up for sale. The plan fell apart when Dad took ill and needed nursing home care much sooner than anticipated. He applied for Medicaid and was denied because of the home transfer. The Medicaid caseworker told the family they would need to transfer the home back and spend down the sale proceeds before Dad could then qualify. Learn why their course of action was the wrong one for more than one reason and what they could do fix it and immediately qualify Dad and preserve the funds for Mom.

Yale then discusses the call he received from the frantic daughter who was sued by the nursing home when, after 8 years, Mom lost her Medicaid eligibility. The nursing home sought $80,000, the private pay cost of care for Mom. Why did it happen and what do you need to do to prevent it from happening to your family? Tune in.

The final case study concerns a couple who was unprepared when suddenly Husband took ill, needing nursing home care. They were told that he would qualify for Medicaid but that some amount of money would have to be spent down first. Unfortunately, Wife did not fully understand the urgency and did not spend down to the necessary levels for 6 months. The nursing home presented them with a bill for $70,000, the private pay amount for that period of time, for which Medicaid will not cover. Yale talks about why this outcome didnât have to happen and what could have been done to avoid it.

Yale also takes time to answer some more listener emails. Learn what to do when a bank resists honoring a power of attorney that is presented to it. This 8^th installment is sure to answer many of the questions you have about common elder law issues.

Click here to listen to the show

To subscribe to our podcasts click here

Please send us your feedback

Adult Day Care as an Alternative

Elder Law Today — Fri, 18 Jul 2008 21:28:00 GMT

Adult Day Care is a wonderful alternative for families struggling with the care of an aging or disabled parent, spouse or loved one. Adult Day Care centers can also provide supervision and assistance each day for a senior who is not quite ready for assisted living or long term care.

Each center has a staff of trained health care professionals, including registered nurses and therapists, to help those members with complex physical or psychological problems and needs. Adult Day Care centers provide a structured program that includes a variety of health, social and supportive services in a safe, protective environment.

Services are provided during daytime hours allowing caregivers the peace of mind they need to continue working or simply providing them with a much needed respite so theyâre able to face the challenges of day to day care giving.

Members of Adult Day Care centers can look forward to a variety of challenging, interesting and entertaining activities each day. Their caregivers can feel confident that excellent medical and therapeutic care will be provided by an experienced staff of healthcare professionals. Most centers provide a light breakfast or morning snack, lunch and an afternoon snack. Operating hours can vary but most centers operate during standard working hours, Monday through Friday 8 am to 5 pm. Some centers have extended hours are open on weekends and holidays.

For those individuals who meet the requirements, Medicaid, Veterans Administration and other funded programs cover adult day care services. Long term care insurance policies may also cover the cost of adult day care centers so it is important to examine your policy carefully.

Elder Law Podcast Show #7 Seniors and their Home

Elder Law Today — Thu, 3 Jul 2008 04:11:00 GMT

In the seventh installment of his podcast, Elder Law Today, Yale Hauptman focuses on seniors and their home.

Sometimes the senior canât stay at home any longer. Yale discusses with Dan Yanofski, the owner of Elite Realtors of New Jersey, some of the challenges he faces in helping seniors sell their homes. Dan shares his opinions on how to make a home more marketable when it is a bit outdated and the two talk about when is the best time to sell.

For others, staying at home is still a viable option, but some assistance in needed. Yale sits down with Murray Goldsmith, of Spectrum Home Services, whose company, among other services, provides assistance to senior homeowners in making their home a safer place to live. Murray and Yale go from room to room as Murray explains how, in some cases, relatively small modifications can make it easier and safer for a senior to navigate through his/her home and help minimize the risk of a life changing accident.

Yale also takes time to answer listener emails on such topics as whether a power of attorney can be too old, the advantages and disadvantages of making a child a co-owner on a parentâs bank account and whether Medicaid or the nursing home can take your home away from you. Another information packed show that you wonât want to miss.

Click here to listen the show

Elite Realtors of New Jersey 973-994-9009

Spectrum Home Services 973-251-2543

To subscribe to our podcasts click here
Please send us your feedback

Trying to Outsmart the Government

Elder Law Today — Tue, 24 Jun 2008 06:46:00 GMT

I had a call not too long ago from a woman who was concerned about avoiding probate and paying estate taxes upon her death. She had figured out, or so she thought, how she could solve both problems and wanted confirmation from me that it would work. She had written out a check to her son leaving the dollar amount blank. She then instructed her son that upon her death, or if her passing was imminent, that he should write in the dollar amount and deposit the check in his account.

Of course, trying to outsmart the government in this way won't work. Firstly, going through probate will still be necessary as long as there are any assets that can only be accessed by appointing an executor. In many states probate is not something to fear anyway. Usually it is an inexpensive process that can be handled with little or no court involvement. In those states where probate is messy and expensive, however, this woman's solution still won't work as long as she has even a single asset that requires the appointment of an executor. Often, refund checks payable to the person who died will necessitate the appointment.

As for estate taxes, the government is smarter than that. In determining the size of one's estate all assets transferred within 3 years of one's death are included as part of the estate for tax purposes. This will specifically prevent the strategy of transferring all of one's assets before death to eliminate the estate tax. Now, you might be thinking that the estate tax is not something to worry about since the federal estate tax only kicks in on estates over $2,000,000 (and will go up to $3,500,000 in 2009). However, most states have their own estate tax as well and the amount exempt from tax is much lower. In New Jersey, for instance, the estate tax is owed on estates greater than $675,000 and in New York on estates greater than $1,000,000.

There are other ways this woman may be able to minimize taxes on her estate but writing blank checks with instructions to cash them when she dies is not one of them. The government is much too smart for that.

Elder Law Podcast Show #6 Long Term Care Planning - Are You Prepared?

Elder Law Today — Thu, 5 Jun 2008 03:07:00 GMT

In the sixth installment of his podcast, Elder Law Today, Yale Hauptman invites guests Heidi Rinsky Schnapp and Lisa Cook Bayer of Life Management Resources, an elder care consulting firm and Gregory W. Bushwell, of B & M Brokerage Services, a long term care insurance specialist to a roundtable discussion on long term care.

The panel first discusses preplanning options and Greg shares his advice on long term care insurance products and services. Learn why there is no such thing as one size fits all when considering the amount of insurance coverage for long term care, what pitfalls to avoid when purchasing long term care insurance, what additional services besides nursing home care are covered and the difference between disability insurance and long term care insurance.

If you or your loved one is already in the midst of a long term care crisis, then youâll want to hear Heidi and Lisa discuss with Yale the types of services their elder care consulting firm provides. Youâll learn how elder care mediation can help families stay out of a public and expensive legal battle. Heidi explains what geriatric care managers do and how they can help families separated by long distances. Lisa shares with the audience what daily money management services are and how essential they can be for the elderly.

Yale then takes listener emailed and live call in questions as he and his guests discuss the goal that each of us wants to accomplish when we face the aging process, that is, to age in place and remain in our homes as long as possible.

Click here to listen to the show

Heidi Schnapp Lisa Bayer Life Management Resources
Life Management Resources 973-533-0839

Greg Bushwell B & W Brokerage Services
bushwellorg@yahoo.com 973-716-7594

To subscribe to our podcasts click here
Please send us your feedback

How to Stay Out of a Nursing Home

Elder Law Today — Sat, 17 May 2008 05:00:00 GMT

A recent study of long term care shows that the percentage of elderly Americans living in nursing homes is on the decline. This appears to be in part because of improved health and partly because of more choices. According to census statistics, 7.4% of Americans 75 and older lived in nursing homes in 2006, down from 8.1% in 2000 and 10.2% in 1990. At home care and assisted living facilities, on the other hand, have been growing. Of the 85 and older group, fewer than 16% are now living in nursing homes, down from 21% 20 years ago.

As the oldest of the 79 million baby boomers turn 62 this year the long term care system is going to be overwhelmed in the next 20 years. Nursing homes will always be a necessary and important part of that system but if given a choice most people would prefer in home or assisted living care as an alternative. The numbers bear that out.

But what most people don't realize is that unless you have enough money to cover the cost of nursing home level care out of income then you run the risk of running out of money. So, here's what happens. You spend your money and when it is all gone you'll get government benefits. If you want that care at home or in an assisted living facility, however, government benefits will not pay for the entire cost. You'll need to pay for the part that the government benefits won't cover. But, of course, you don't have the money because you spent it all in order to qualify for the benefit program. A classic Catch 22. The only place where the government benefits will pay for 100% of your care is in a nursing home.

So, how can you avoid this dilemma? By planning ahead and moving your assets, out of your name, to a trust for your benefit. This way your assets are available to pay for some of your care at home or in an assisted living facility but you can qualify for whatever government benefits are available and you are able to stay out of the nursing home. But you can't wait until you need the care because transferring assets may cause you to be ineligible for government benefits. So you have to do it well in advance of when you might need the care.

Who can help you put this type of plan in place? A qualified elder law attorney. If done properly you are actually maintaining control of your future, exactly at a time when most people who didn't plan ahead lose control because their health no longer allows them to manage their own affairs and they haven't set down a plan of action. And as you can see, the system drives you into a nursing home, unless you plan for the alternatives.

Elder Law Today Show #5 VA Aid and Attendance - The Best Kept Secret in Long Term Care

Elder Law Today — Thu, 1 May 2008 04:12:00 GMT

In the fifth installment of his podcast, Elder Law Today, Yale Hauptman, takes Elder Law Today on the road to a Caregiving Symposium he spoke at recently. Yale interviews a geriatric care manager, a contractor who makes modifies homes for the elderly and other vendors who attended the symposium about the variety of services they provide to the elderly.

In the second segment Yale discusses in greater depth the Veterans Administration Aid and Attendance program, which provides wartime veterans and their spouses who qualify, as much as $1800 per month of additional income which can help pay for home based care and assisted living care. Learn the details of this little known program and why so many people have been incorrectly told by the VA that they donât or canât qualify. Yale talks about terms such as income for Veteran Administration purposes and unreimbursed medical expenses and why they donât mean what you might think.

Listen to Yale explain the income and asset levels that must be met and how they differ from those of Medicaid. Yale cautions that in taking the steps necessary to obtain the VA benefit you must be careful not to leave yourself ineligible for other government benefit programs such as Medicaid that might be needed further down the road of what Yale refers to as the elder care journey. Yale explains how it is possible to preserve eligibility for both programs. This is definitely a program you wonât want to miss.

Click here to listen

To subscribe to our podcasts click here

Please send us your feedback

Paid Family Leave

Elder Law Today — Wed, 23 Apr 2008 14:25:00 GMT

Two weeks ago New Jersey became the third state (California and Washington being the others) to pass into law a bill requiring companies to offer paid leave to employees. The benefit will operate in a similar fashion to state disability benefits in that all employees will contribute an additional amount from their paychecks to help pay for this benefit.

Employees who are caring for a newborn or a newly adopted child are eligible. In addition, however, employees caring for a sick family member can take the leave, which can be as much as 6 weeks. Companies are concerned about the impact the law will have on their businesses if key employees exercise this option.

The law highlights what has become increasingly obvious, that as our population ages more people are caring for elderly loved ones than ever before. 77 million baby boomers will be reaching senior status in the next 20 years. While the paid leave bill, attempts to, in some way, address the crisis, it is clearly not the best approach. Employees who must take time off from work are dealing at that point with a full blown long term care crisis. It often begins with a call that Mom or Dad is in the hospital, then leads to the need for nursing home care, home based care or assisted living care. It is never best to deal with a problem when it has reached the critical stage.

The better approach is to address long term care issues before they arise, in what we call the preplanning stage. Usually, the signs of aging can be seen long before the crisis hits. If families can sit down and, with the assistance of an elder care attorney and other elder care professionals, prepare a plan before the need arises, chances are the employee will not need to take leave, or perhaps may need to take less time off. Preplanning also reduces stress levels for all involved and leads to better care.

Elder Law Today Show #4 Long Term Care Planning - The Way to Avoid Nursing Home Care

Elder Law Today — Wed, 2 Apr 2008 04:22:00 GMT

In the fourth installment of his podcast, Elder Law Today, Yale Hauptman, a practicing New Jersey elder law attorney, discusses how long term care planning actually decreases the likelihood of ever needing nursing home care. Learn how the long term care system actually works to push people towards nursing homes when they have no more money. Medicaid home based benefits often pay only a part of the cost of aides needed on a 24 hour 7 day a week basis, but will pay the entire cost of care if provided in a nursing home setting. It is, therefore, important to plan ahead to have the funds available to be able to stay at home.

Yale also reviews for listeners an unknown Veterans Administration benefit for eligible Veterans that can provide as much as $1800 per month in additional income to cover the cost of home aides and assisted living care. The Veterans Aid and Attendance program can help qualified seniors preserve their much needed assets. But Yale cautions that one must keep an eye on the next level of care so as not to jeopardize eligibility for other benefit programs down the road. This requires the coordination of a long term care plan to meet all levels of care, not just the current one.

In the second segment Yale interviews Angie Hicks of Angieâs List, a website offering reviews by consumers of local home improvement contractors. Yale and Angie talk about how Angieâs List is seeing more inquiries in recent years by children who need help finding services for their parents who live long distances away. Seeing the aging of America, Angie tells Yale that Angieâs List now offers ratings of various elder care services to assist families who are faced with the task of caring for the elderly members of the family unit from a distance.

Click here to listen to the show.

Visit Angie's List

To subscribe to our podcasts click here

Please send us your feedback

Negative Inheritance

Elder Law Today — Thu, 20 Mar 2008 01:30:00 GMT

A term that has come into increasing usage is "negative inheritance". It describes the situation where an adult child, rather than receiving an inheritance when a parent dies, instead spends his/her own money to cover the parent's long term care needs because the parent has run out of money. It is caused by poor, or in most cases, no planning and is entirely avoidable.

A common scenario that we see is a parent living at home with round the clock home health aides. The parent has run out of funds, maybe even has tapped into as much equity as can be had from the home. The children then pay the cost with no end in sight. Sometimes they take out mortgages on their own home. Eventually, their spending will have an impact on their own retirement savings and ability to pay for their own long term care needs. The financial toll can be devastating, causing them to turn to their children for help when they run out of funds, a never ending cycle.

So, how can it be avoided? By the parent planning before long term care is needed. There are various government benefits that can be tapped to help pay for care. However, each program has its own set of rules that easily trip up the average person. With some careful planning, eligibilty for much needed benefits can be achieved. You never want to run out of money, especially before you reach the highest level of care, nursing home care. If the parent is home and runs out of money then getting into a quality nursing home, should it be needed, can be difficult. The only way to insure that will happen is to private pay to get in the door. But if you've spent all the money before you get there that's where the children are faced with a dilemma. Do we let the state send mom somewhere or do we pay privately to get her into the facility we want her to be in.

Proper planning can also increase the likelihood that the parent can stay out of the nursing home. If you need round the clock care and have no money the government will pay for it if you go to a nursing home. However, in many states, if you want that same care at home, the government won't pay for it all. Of course, if you've spent down everything to get the government benefits you don't have anything left to pay for what the government won't. That's where the planning helps.

The lesson to be learned is that the earlier you plan the better prepared you'll be. Because so much of the long term care system of benefits and laws is state specific it is important to consult with an experienced elder law attorney in the state where you live.

Elder Law Today Podcast #3 Live Call in

Elder Law Today — Thu, 6 Mar 2008 23:24:00 GMT

In the third installment of his podcast, Elder Law Today, Yale Hauptman, a practicing New Jersey elder law attorney, answers listenersâ questions by phone and email. Yale corrects common misconceptions people have about some of the basic legal issues facing seniors today. For example, Yale explains that making gifts up to the annual gift tax exclusion amount will carry a Medicaid transfer penalty. Yale explains what probate is and why you donât necessarily have to fear and avoid it.

Learn why it is a good idea to have a will and not rely on a stateâs intestacy laws to distribute your assets. Is it a good idea for a parent to transfer his/her home to the children? Yale discusses the pros and cons to consider from a Medicaid, tax and long term care perspective.

Yale answers a callerâs question on a little known Veterans Administration benefit that can provide much needed additional monthly income to be used for home care and assisted living care. These are just some of the topics covered in a very informative and enlightening evening.

Click here to listen to the show.

To subscribe to our podcasts click here

Please send us your feedback

Veteran's Benefits - The Hidden Benefit

Elder Law Today — Mon, 25 Feb 2008 13:00:00 GMT

The discussion of long term care and government benefits to pay for that care most often leads to the topic of Medicaid, however, there is another benefit available to qualified veterans of the U.S. military through the Veterans Administration that can be a source of funds to pay for assisted living and home based care. Eligible veterans and their widowed spouses may be eligible for a non-service connected pension, as much as $1801 per month for veterans, $976 per month for widowed spouses. The program is commonly known as the Aid and Attendance program and the applicant must be deemed permanently and totally disabled. But if you're thinking that it's probably too hard to prove a disability that's not necessary the case. The VA presumes that someone over 65 years of age and housebound or in an assisted living facility is permanently and totally disabled.

As is often the case with government benefits, the rules can be confusing. Similar to the Medicaid program applicants must meet certain income and asset limits. The pension amount is determined by a specific formula. Unreimbursed medical expenses are subtracted from gross income. That number is then subtracted from the maximum pension amount to determine the applicant's pension amount. It is important to understand that the cost of the assisted living facility and home health aides is usually counted as an unreimbursed medical expense. In many cases, it becomes easy to qualify for the maximum pension amount.

There is also an asset limit, approximately $40,000 for a single individual, $80,000 for married couples. Unlike the Medicaid program, however, there is no lookback period or penalty for transferring assets. This means that one can transfer assets to get below the asset limits and immediately qualify for Aid and Attendance.

However, things are not that simple. (They rarely are when it comes to the long term care system and government benefits). Transferring assets can result in additional benefits from the VA but those same transfers will result in ineligibility for Medicaid. Now, that's not to say that one should forget about Aid and Attendance. It does, however, require a carefully drafted plan so that should the applicant need the next level of care down the road (ie. nursing home care) the applicant will be able to qualify.

Consulting with a knowledgeable elder law attorney who will help a family plan for the next level of care, not just the care that is needed now, is advisable.

Talk Live with Yale Hauptman. Call In Show March 3, 2008

Elder Law Today — Sat, 16 Feb 2008 20:34:00 GMT

Elder Law Today LIVE

Here is your chance to talk live with show host Yale Hauptman on his first live call in show. If you have important questions that you need answered by an experienced elder law attorney here is your chance. On March 3 at 8 PM eastern time Yale will host his first live show.

In addition to answering questions live Yale will have some special guests on the show. This will surely be and educational and entertaining experience.

Click here to join us.

Here is the information to join the show

Scheduled Time:

Date: Mon, March 3, 2008
Time: 08:00 PM EST

How to participate:

Call in:

Dial: (724) 444-7444
Enter: 11495 # (Call ID)
Enter: 1 # or your PIN

Join from your computer:

If you have any questions please send us an email

Top Long Term Care Planning Mistakes

Elder Law Today — Wed, 13 Feb 2008 02:45:00 GMT

Over the past 13+ year I've been able to help many families through what we call the elder care journey from healthy vigorous senior through home assistance, assisted living and nursing home care. Some of the more common mistakes that I see people make are the following:

1. Believing Medicare covers long term custodial nursing home care (it does not);

2. Thinking that a transfer of $12,000 per person per year will not cause Medicaid ineligibility (there is no gift tax but there is a Medicaid transfer penalty);

3. Failing to account for transfer penalties and loss of control of assets when trying to protect assets (I've seen disastrous outcomes because of it);

4. Failing to consider negative tax consequences and disruption of estate plan when transferring assets;

5. Transferring assets without providing a plan for where sources of funds will come from should long term care be necessary within the next 5 years after the transfer;

6. Confusing the Medicaid lookback and transfer penalty (they are not the same);

7. Believing that it is too late to plan (it rarely is);

8. Failing to recognize the sense of urgency in doing long term care planning by telling yourself "I'll wait till it looks like I will need long term care" (the earlier the planning the more that can be protected);

9. Believing that long term care planning means I will lose control of my assets and my decision making (in fact the opposite is true);

10. Hearing what other family members, friends or acquaintances have done and do exactly the same because it sounds like your situation is identical to theirs (it never is, every situation is unique, just as every person is unique);

Elder Law Today Podcast Show #2 The Basics of Medicaid

Elder Law Today — Fri, 1 Feb 2008 16:00:00 GMT

In the second installment of Elder Law Today Podcast, Yale Hauptman, a practicing New Jersey elder law attorney, explains the basics of the Medicaid nursing home program. Yale explains how this needs-based program works, including the asset and income tests for eligibility. Learn what countable and non-countable assets, Medicaid transfer penalty and lookback period are and why Medicare will not cover most nursing home stays.

Yale also explains why long term care planning must be done well before entry to a nursing home becomes necessary. Congress passed significant changes to the Medicaid laws 2 years ago, known as the Deficit Reduction Act of 2005, changes that the average American is unaware of. Learn why even if you spend down your assets to the Medicaid levels you still may face a Medicaid transfer penalty.

In the second segment, Yale interviews Barbra London of Freedom Eldercare, a licensed home health care agency. Listen to Barbra and Yale talk about the types of services a home health care agency provides and common misconceptions people have about this important resource. They also discuss why, under the new Medicaid laws, hiring an aide directly, rather than through an agency, can trap the unwary and cause a Medicaid ineligibility period.

Click here to listen to the show

To subscribe to our podcasts click here

To contact Barbra London 201-883-1200 or toll free 866-7 Freedom

Please send us your feedback

Medicare Part B Premiums for 2008

Elder Law Today — Tue, 29 Jan 2008 14:00:00 GMT

I was speaking with someone the other day who told me her Social Security monthly check declined from 2007 to 2008 and asked if that was possible or a mistake. While the government does on occasion make mistakes (hard to believe), an increase in the Medicare Part B premium may have resulted in the decrease. Part B generally covers outpatient services, such as doctors visits and home health services. Medicare recipients pay a portion of the premium for this benefit, which increases every year. (In 2008 the premium is $96.40.) The monthly Social Security benefit also increases, resulting in a net increase in the monthly check from year to year.

This year, however, for the first time, higher income beneficiaries will pay a higher premium for Part B. Individuals with income between $82,000 and $102,000 per year will pay a monthly premium of $122.20. Married couples with income between $164,000 and $204,000 will pay the same premium amount. There are 3 other income levels which result in higher premiums, the top level being $205,000 per year of income for individuals and $410,000 for married couples. The premium in that case is $238.40 per month.

Medicaid Mess

Elder Law Today — Fri, 18 Jan 2008 16:30:00 GMT

Every so often, I come across a situation that illustrates so clearly the dangers of going it alone or getting bad advice when dealing with the common issues and dilemmas that are aging in America. I received a call this week from a son in Mississippi. Mom and Dad, no longer able to live at home alone, moved in with Son. They owned their home in New Jersey which they transferred to Son.

Dad's health deteriorated to the point where he needed nursing home care. The couple then spent down their assets and applied for nursing home care for Dad. Meanwhile Son placed the New Jersey home up for sale.

Much to their surprise, the family was informed that the state Medicaid office denied Dad's application. Why? Because the transfer of the home to Son caused a Medicaid ineligibility period. Dad cannot receive Medicaid for 4 and 1/2 years. In other words, Son must give the money back to Mom and Dad and they must spend it down before Dad will receive Medicaid.

Son said that he was prepared to pay for Dad's care. I advised him to seek the advice of an elder law attorney in his state familiar with the Medicaid laws there before he does that. It may make more sense for Mom to take some of the money and buy a new home which would be exempt from Medicaid. There are other strategies that may be beneficial as well and should be explored in greater detail.

The lesson to be learned is to consult with a professional before making any decisions. There is a maze of laws and services in this country that affect seniors. It is easy to get tripped up by them and the cost to your family could be enormous.

Elder Law Today Podcast #1 What is Elder Law? Special Needs Planning with Guest Matthew Glass

Elder Law Today — Tue, 1 Jan 2008 20:40:00 GMT

In the debut of his podcast, Elder Law Today, Yale Hauptman, a practicing New Jersey elder law attorney, explains what elder law is and how an elder law attorney can be a valuable counselor to seniors and their families. Learn how elder law differs from traditional estate planning. A will, while important, addresses only one scenario, what happens when one dies. Elder law, however, encompasses so much more, what can be termed life planning or long term care planning. In other words, what happens if I donât die, but instead have a lengthy illness, need increased care, (ie. home care, assisted living, or nursing home care) and do not have the funds to pay for it indefinitely.

Yale discusses the need to have a plan in place, one that includes the necessary documents (ie. power of attorney, health care directive, will, trust) but also brings the family together to work towards a common goal of assisting the senior family member to tackle head on the legal and social issues associated with aging and navigating through the maze of laws and available government benefits.

In the second segment, Yale interviews his first guest, Matthew Glass, a certified special needs advisor. Matthew explains how he assists young families with special needs children. Yale and Matthew then discuss how special needs planning will increase in frequency as parents age and are faced with their own long term care needs. Because that care is expensive, without proper planning they may be forced to spend most or all of their assets on their own care, leaving nothing for their children with special needs. A specifically tailored plan, usually involving a special needs trust, can avoid this drastic result and provide peace of mind to families.

To listen to the show click here

Here is how you can contact Matthew Glass

732-632-5854 or 800-333-7964 visit the The RHG Group Website

Don't forget to subscribe to our podcast by clicking here.

We welcome your questions, comments and suggestions send us an email