Many times I have parents call me wanting to talk about a guardianship/conservatorship for their son/daughter who is disabled. Many times they don’t know if or why they might need to do something, but a friend or school district official has told them that something needs to be done. Here are some basic thoughts:

Once an individual turns 18, in the eyes of the law they are deemed to be a competent adult, free to make any decisions, good or bad. They retain this right until the day they die or until a Court enters an order that says that they are not competent.

In the case where a child with a disability is turning 18, many times they are completely unable to make their own decisions and would be quite vulnerable to outside influences. For instance, this child is now free to get a credit card and enter into any type of contract. Parents can often find themselves outside in a waiting room – unable to be involved in medical decisions or even have access to medical information. Clearly, this can be problematic.

It is important to understand the difference between a guardianship and a conservatorship. A guardianship is when a person is nominated to be in charge of the incompetent individual’s physical well-being. This includes making medical decisions and ensuring that the individual has access to the basic necessities of food and shelter. The conservator is in charge of any financial assets that the individual has in their name. This would include bill-paying, managing bank and brokerage account assets, and making financial decisions on that individual‘s behalf. The guardian and conservator are often the same person, but they don’t have to be the same person.

If your disabled child is turning 18, we at the Law Offices of Shawn Weera can help you to establish a guardianship. Your child may not have any assets in their own name, but we will often appoint a conservator anyway so that, if your son or daughter comes into property later in life, that step is already taken care of. Please call us at (616) 940-3370 or toll-free at (877) 933-7252 for a free, no-obligation consultation about establishing a guardianship and/or conservatorship for your disabled child.

Almost daily, I have clients who mistakenly use the terms “Medicare” and “Medicaid” interchangeably. The truth is that these programs, other than both starting with the letter “M” and dealing with health care, are completely different from each other. It is important to realize the differences between these programs in order to fully understand the financial impact that the need for care will have on a family and their finances.

Let’s go over some basic eligibility requirements.

In order to qualify for Medicaid, you must be age 65 or over or disabled. However, there is also an asset test that must be met for eligibility, which does not exist for Medicare. This asset test requires that the Medicaid recipient have less than $2,000 in countable assets.

You do not need to be eligible for Medicare in order to be eligible for Medicaid, or vice versa. In order to be eligible for Medicare, you must be either age 65 or older, or declared disabled by Social Security for a period of two years or more. (There are a few exceptions to this two-year rule.) You or your spouse must also have paid into Medicare for at least 40 quarters. In the event that the potential Medicare recipient is a disabled child with no work record and therefore no record of having paid into Medicare for 40 quarters, the work record of one of the child‘s parents may be used to establish eligibility.

Virtually everyone who is age 65 or over is eligible for Medicare Part A, and almost all of those people also voluntarily have enrolled in Medicare Part B.

Medicare essentially acts like traditional health insurance in that it pays for hospitalizations, therapy, doctor’s visits, x-rays, etc. Medicaid can also pay for those things (but only if Medicare or private insurance doesn’t pay first). But Medicaid can also pay for things that Medicare doesn’t pay for. Probably the most commonly used example is payment for long-term care after a rehab stay ends. Medicaid will not only pay for care after a rehab stay ends, but it can also, in some cases, pay for in-home aides, transportation to/from doctor’s appointments, and several other services.

In order for a Medicare recipient to be eligible for a rehab stay, there are several requirements that must be met. First, the individual must be eligible for and enrolled in Medicare Part A benefits. For someone who has a Medicare Advantage plan, they will also be eligible for rehab stays, but the basic rules and costs will vary from plan to plan. For Medicare Advantage enrollees, it is very important that they be familiar with all of the plan’s features because there is a wide difference between plans. Second, the individual must have been admitted to the hospital for three consecutive days. Just because an individual was at the hospital doesn’t necessarily mean that the person was admitted. And, many times, when an individual first goes to the hospital, they are under “observation”, which does not count towards the three-day requirement. Next, as you leave the hospital, the doctor must agree that you either need some type of therapy (speech, physical, or occupational) or have some other skilled need (such as intravenous injections or certain types of wound care).

Medicare will pay for most of the costs of someone who has a 3-day hospital stay and then needs to go to skilled nursing for some type of therapy or other skilled need to fully recover. The thought process is basically that Medicare will pay to help someone get better. However, once that person has either recovered, or it becomes apparent that continued therapy will not lead to that person’s recovery, then Medicare stops paying. Medicare will also stop payment if the rehab stay lasts longer than 100 days for any one spell of illness. More often than not, however, elderly individuals who enter into nursing homes are unable to recover, and Medicare stops paying.

Rehab stays fall under Medicare Part A. However, it is possible to get some things paid for in a skilled nursing facility to be covered under Medicare Part B, which is a totally separate set of benefits. An example of this is when an individual who is benefiting from physical therapy but has completed his 100-day stay under Part A can still get the costs of his therapy covered under Part B, even past the 100 days. Even though the therapy is covered, there will still be charges for the room and board that the patient is responsible to pay. If someone completes the rehab stay, then they will either become a private-pay resident or, if they qualify, they can receive Medicaid benefits.

Clearly, when Medicare stops paying for needed care and the patient becomes a private-pay resident, there is a tremendous financial burden placed on the family. We have helped hundreds of families in this situation find the best possible care given the circumstances while protecting assets in order to prevent spousal impoverishment. If you or a loved one need to discuss the financial and legal options available to you in this situation, please call the Law Offices of Shawn Weera at (616) 940-3370 or toll-free at (877) 933-7252 for a free, no-obligation consultation.

Many times people will ask me if they need to review the estate planning that they did many years ago. My answer is always the same. You should be having your estate plan reviewed every three to five years. They are often surprised that this should be done as often as recommended. There are three reasons why it is important to review your estate plan frequently.

1) Your memory isn’t as good as you think it is. (Neither is mine.) Many times when I sit down with families and I read through their trust and read to them what their planning currently says, they are surprised that a certain child was named trustee over another, or they forgot that they gave a gift of funds to a relative or charity that they no longer desire to give. If not for the review, they would have completely forgotten these details until it was too late (because they passed away).

2) Your health or financial situation is different than it used to be. Whether it is a positive or negative change in your health or financial situation, both can have very serious effects on both your estate planning wishes and the practicality of carrying out those wishes. In addition, there are often tax consequences that might not have been important or applicable several years ago. During a review of your estate plan is also a good time to incorporate asset protection against long-term care costs – before a health crisis hits.

3) The law is different than it used to be. There have been many major legal changes in just the last ten years that have had a dramatic impact on estate planning. For instance, the estate tax credit is now 500% higher than it was just ten years ago. This has caused many families that needed semi-complex estate plans to no longer need the same level of sophistication. We have also seen major changes in our health care powers of attorney and trust code – all in the last five to seven years. The new estate recovery law in Michigan that is now being implemented means that the State of Michigan will now be attempting to recover costs for nursing home care whenever possible. This is a significant change in Michigan law that may have a huge impact on your estate. During a review of your estate plan, you can learn how to prevent estate recovery and plan for a catastrophic medical event that would otherwise decimate your resources and leave either you or your spouse impoverished.

The bottom line is that while estate plans don’t “expire” (although the makers of those plans will!), they are not designed to be put in place and never thought about again. Estate planning is important, and just as your house, car, and body all require maintenance from time to time, so does your estate plan. To schedule a free, no-obligation review of your estate plan, please call the Law Offices of Shawn Weera at (616) 940-3370 or toll-free at (877) 933-7252.

Every year in January, we at the Law Offices of Shawn Weera get multiple questions from our existing clients who are receiving Veteran’s Administration (VA) benefits as either a wartime veteran or their surviving spouse. This is because these clients have just received an EVR (Eligibility Verification Report) from the VA.

The purpose of the Eligibility Verification Report is two-fold. First, the Veteran’s Administration wants to make sure that the estimated expenses and income that the veteran reported for the last calendar year (2011) were fairly accurate and, if possible, award them any extra benefits if the expenses were greater than expected. Second, they want to determine if the veteran or their spouse is expected to remain eligible for benefits for the current year (2012).

We have had clients who decided not to fill out these forms or, alternatively, didn’t return the completed form in a timely fashion. However, if you fail to complete your Eligibility Verification Report or fail to return the completed form in a timely manner, your benefits will be discontinued. With most Veteran’s Administration applications taking six to eight months to get approved, don’t let procrastination cause you to lose your benefits for several months.

The EVR needs to be completed carefully, and many recipients make the mistake of not including the costs of their assisted living/skilled nursing/home care as a medical expense. In most cases, these costs are what entitled the veteran or spouse to get the aid and attendance benefit in the first place. So a failure to include these costs on your EVR will likely cause your benefits to stop and could even cause the VA to issue a demand for repayment.

If you have received an Eligibility Verification Report from the Veteran’s Administration, please call our offices at (616) 940-3370 or toll-free at (877) 933-7252. We want to assist you in completing this form accurately and returning it in a timely fashion so that you can continue to receive the benefits that you deserve.

This is an update regarding the most recent increase in the maximum benefit rates for Veterans and their Surviving Spouses who are receiving or are expecting to receive assistance from the Aid and Attendance Program. The Aid and Attendance Program is a non-service connected pension for Veterans and their Surviving Spouses. If the Veteran served 90 days active duty and one of those days was during a congressionally-declared period of war (see previous blogs), then the Veteran and their Surviving Spouse would be eligible for this benefit.

The new maximum benefit rates for the Aid and Attendance Program are:

Married Veteran:          $2,019/month

Single Veteran:            $1,703/month

Surviving Spouse:         $1,094/month

Please note that these are the maximum rates for this benefit. In order to receive this benefit, there are special income and asset rules that apply. Further, there must be out-of-pocket medical expenses in order to receive assistance from this program.

If you are a Veteran or the Surviving Spouse of a Veteran, please do not delay in contacting us about this benefit. If you are concerned that you may have too much income or too many assets, or if you do not have current medical expenses but are interested in how this benefit could help you in the future, you should know that it is better to begin planning now than to wait until you need the help. Some planning techniques take time to implement, and filing for this benefit is not an overnight procedure. If you know a Veteran or Surviving Spouse, please share this information with them. It could make a tremendous difference in their life.

For a free, no-obligation consultation to see if you qualify for this benefit or to see how you could benefit from long-term care planning, please call our office at (616) 940-3370 or toll-free at (877) 933-7252.

There are currently more than 65 million caregivers in the United States. As large as that number appears, it is likely that there are even more caregivers than that. Every client who we help usually has several people caring for them. I often ask my clients, “What is being done to help the caregiver?” Caregiver burnout is becoming more and more common with caregivers trying to manage their families and their careers in addition to caring for the loved ones who rely on them. I offer this blog as a testimony to both the support that caregivers provide and the valuable work that caregivers perform on a daily basis.

Just over a year ago, we began partnering with the Caregiver Resource Network. Visiting their website recently at http://www.caregiverresource.net is what inspired me to create this blog. Anyone interested in exploring the programs and services that are available to caregivers in West Michigan should visit their website and peruse the wealth of resources available there. You will find a wide-range of educational fact sheets, articles, web links, and resource materials on topics related to caregiver well-being; respite care; health and wellness; and legal and financial issues. It is a tremendous blessing to see elder care professionals working together to provide support for our caregivers. The Caregiver Resource Network mission statement appears below.

“Caregivers often become very isolated and feel alone in the daily tasks and challenges of caregiving. In the hope that no one has to “walk the caregiver path alone” it is the mission of the Caregiver Resource Network to provide family and professional caregivers with needed information and resources.”

If you would like more information about the assistance that is available for caregivers – or about the resources that are available for an individual who needs care - you should review the information on our website and at http://www.caregiverresource.net.  For more detailed information regarding your specific situation, please call our office and schedule a FREE, no-obligation consultation. Our mission at the Law Offices of Shawn Weera is to provide protection in times of prosperity, security in times of uncertainty, and comfort in times of crisis. Remember: You don’t have to walk the caregiver path alone.

If a loved one is in need of nursing home care, and if they don’t have long term care insurance, their assets will be consumed by such care costs at an rate of about $7000.00 a month, until their assets are almost entirely consumed.  However, there are several planning techniques which can utilized to help a loved qualified for the nursing home Medicaid program, which will help pay for nursing home care costs, without having to lose everything first.  One such technique which can be utilized by the spouse of a Medicaid applicant is a “Solely for the Benefit Of” Trust (”SBO Trust”). 

A SBO Trust is an unique irrevocable trust that holds marital assets contributed to it solely for the benefit of the community (non-nursing home) spouse of a nursing home Medicaid applicant. Marital assets transferred into a trust “solely for the benefit of” a community spouse do not create a divestment penalty, as other gifts and transfers can.  Assets which would normally be considered “countable” and prevent a married applicant from qualifying for Medicaid are considered “unavailable” when transferred into a SBO Trust, thus allowing the person to qualify sooner while retaining more assets for their spouse.

The terms of the SBO Trust require the Trustee of the trust to distribute a minimum, annuitized, portion of the trust corpus each year to the community spouse. The trust essentially converts excess “countable assets” into an income stream for the community spouse.  If the community spouse dies, any remaining trust assets are distributed to name beneficiaries (i.e. – children, etc).

A SBO Trust is especially useful in protecting non-liquid assets such as real property, stocks, and bonds.  However, the proceeds of IRA’s and other retirement plans cannot be transferred into an SBO Trust without first cashing the IRA or retirement account that can result in substantial tax consequences.

There are several requirements for a valid SBO trust. The SBO Trust must be irrevocable, in writing, established and funded by either the applicant or by the community spouse after admission to the nursing home, and provide for the distribution of at least an annuitized portion of the trust corpus to the community spouse each year on an “actuarially sound” basis (within the life expectancy of the community spouse).  The trustee must also be someone other than the applicant or community spouse (i.e. – a child, an agent named in a power of attorney, etc).

The SBO Trust is an extremely beneficial, Medicaid Planning technique that can, and must, be utilized at the time nursing home care becomes necessary, and only when it is likely that there will not be a recovery of the spouse that is receiving care in the nursing home..

Our firm assists single and married clients become eligible for nursing home Medicaid without having to lose all of their assets.

When a loved one is in a nursing home, the complex legal, financial, and caregiving issues that arise can be overwhelming. We at the Law Offices of Shawn Weera specialize in helping individuals deal with these complex issues. Please call our office at (616) 940-3370 to schedule a free, no-obligation consultation to find out how we can be of assistance.

As Elder Law Attorneys with over 100 clients in different stages of dementia under our guidance, care, and protection, we have to advise families to prepare themselves for the challenges of taking care of their loved one with memory loss.  Therefore, it is important to help our clients better understand the causes of dementia and the difference between Alzheimer’s disease and dementia.

Many people use the terms Alzheimer’s disease and dementia interchangeably, but they have very different meanings. Although dementia is a group of symptoms that includes memory loss, the term itself doesn’t explain what is causing the symptoms. Alzheimer’s disease is the leading cause of dementia, but there are many other causes. Dementia is a general term for memory loss that is severe enough to interfere with daily life. The signs of dementia may include forgetfulness, difficulty making plans, thinking ahead, or using language, as well as changing character traits, among other symptoms.

Alzheimer’s disease accounts for 50 to 80 percent of dementia cases according to the Alzheimer’s Association, but there are other causes, including vascular dementia, Lewy body dementia, frontotemporal dementia, and Wernicke-Korsakoff syndrome. Some causes of dementia are treatable, so it is important to understand the cause.

The term “dementia” is thrown around a lot in discussions of elderly individuals, but what exactly does it mean? Dementia is a general term for memory loss that is severe enough to interfere with daily life. This general term encompasses many different diseases, of which Alzheimer’s is the most common.

The following is a brief summary of the different types of dementia:

Alzheimer’s disease. Alzheimer’s disease accounts for 50 to 70 percent of all cases of dementia, according to the Alzheimer’s Association. Alzheimer’s is a partially hereditary disease that causes a loss of brain cells. It gets progressively worse over time and is usually fatal. There is no cure, but there are medications that can treat the symptoms and slow its progress.

Vascular dementia. Vascular dementia is the second most common form of dementia and is caused by poor circulation to the brain. It may occur after a major stroke or a series of minor strokes. The disease sometimes progresses in recognized steps. The symptoms of vascular dementia vary depending on which area of the brain is affected, but they can include memory loss, confusion, difficulty concentrating, and reduced ability to carry out daily activities. While there is no cure, treatment of high blood pressure and good diabetic control can slow the progress. In addition, drugs that are used to treat Alzheimer’s disease can also be used to treat vascular dementia. Some individuals have both Alzheimer’s disease and vascular dementia. This is called mixed dementia, and may have a greater impact on the brain than one form of dementia by itself.

Parkinson’s disease. Parkinson’s disease starts off causing physical symptoms, such as tremors, stiffness, difficulty walking, and speech problems. Dementia may develop late in the disease but not everyone with Parkinson’s disease experiences dementia. There are no drugs to treat dementia caused by Parkinson’s, but several medications can treat the physical symptoms of Parkinson’s disease.

Lewy body dementia. Lewy body dementia is caused by deposits of protein on the brain cells. It has characteristics of both Alzheimer’s disease and Parkinson’s disease, such as memory loss and slowed movement, but it can also cause visual hallucinations and delusions. There is currently no cure, but some drugs used to treat Alzheimer’s disease and Parkinson’s disease may help with some of the symptoms.

Frontotemporal dementia. Frontotemporal dementia affects the front and side lobes of the brain and causes personality and behavior changes. The symptoms vary depending on which areas of the brain are affected but can include inappropriate actions, apathy, excessive happiness and excitement, lack of judgment, and difficulty in using and understanding language. There is currently no treatment for or way to slow the progress of frontotemporal dementia.

Creutzfeldt-Jakob disease (CJD). Caused by a protein in the brain that takes on an abnormal shape, CJD is a rare disease that progresses quickly. A variant of CJD can be caused by eating cattle afflicted with “mad cow” disease. The symptoms of CJD include memory impairment, depression, and problems with movement. CJD is fatal, and death can occur within a year of contracting the disease. There is currently no effective treatment.

Normal pressure hydrocephalus (NPH). NPH is a rare disease that occurs when fluid builds up in the brain. It causes mental decline as well as loss of bladder control and difficulty walking. It can be treated surgically by inserting a tube (called a shunt) into the brain to drain the fluid.

Huntington’s disease. Huntington’s disease is an inherited brain disorder that is usually fatal. It starts with physical symptoms, such as jerky movements and problems with balance and, as it progresses, can lead to trouble with memory and concentration. There are currently no treatments to stop or slow the disease, but some of the symptoms can be controlled by medication.

Wernicke-Korsakoff syndrome. Wernicke-Korsakoff syndrome is a brain disorder often caused by alcoholism. It leads to confusion, gaps in memory, and making up information, among other things. If caught early enough, it can be treated and the damage reversed.

An early symptom of Alzheimer’s is difficulty learning new information. It can then progress to more severe symptoms such as forgetting names and places, disorientation, mood and behavior changes, and an inability to relate to others. Eventually, it can lead to the inability to talk, walk, or eat. For more information on Alzheimer’s disease, you can visit the Alzheimer’s Association website at www.ALZ.org

Dementia, whether caused by Alzheimer’s disease or some other underlying disease, is not a normal part of aging. If someone you love is exhibiting signs of dementia, they should get immediate medical attention to establish its cause and learn about the treatment options that may be available.

When a loved one is suffering from dementia, the complex legal, financial, and caregiving issues that arise can be overwhelming. We at the Law Offices of Shawn Weera specialize in helping individuals deal with these complex issues. Please call our office at (616) 940-3370 to schedule a free, no-obligation consultation to find out how we can be of assistance to you and your family.

If you are married, your spouse is automatically entitled to every dime in your 401(k) account when you die, regardless of what your Will says or who you designated as the beneficiary of that account. In fact, in most cases, your spouse becomes the sole heir to all of your 401(k) accounts on the date of your marriage.

This rule applies to all 401(k) accounts, including any accounts that you may have established in the past with previous employers – even before you met and married your spouse.

If you want to leave a 401(k) account to another individual, your spouse must file a written statement waiving rights to the account after the marriage has taken place. Specifically, a prenuptial agreement is not a valid waiver of spousal rights since a person cannot give up rights to a 401(k) until they are actually married to the account holder.

In the case of an IRA, the beneficiary form will dictate who inherits the account.

However, it is important to note that, once you are married, you cannot convert a 401(k) into an IRA and name a new beneficiary, effectively disinheriting your spouse, without first obtaining your spouse’s written consent. However, it is perfectly legal to roll a 401(k) account into an IRA before your get married and name beneficiaries.

A further item of concern is the fact that 401(k) and IRA assets would have to be spent down in a long-term care crisis that occurs to either spouse in the absence of an effective asset protection plan.

If you wish to have us at the Law Offices of Shawn Weera examine your current estate plan and offer solutions such as those discussed in this article, please call our office at (616) 940-3370 to schedule a free, no-obligation consultation.

We at the Law Offices of Shawn Weera are Elder Care Attorneys. Our mission is to help our clients achieve their estate planning and asset protection goals in times of prosperity, to provide security in times of uncertainty, and to provide peace of mind solutions in times of crisis.

To demonstrate how our mission works in practice, we would like to share with you an example taken from one of our many hundreds of client files. This particular long-term care client experienced all of the stages of the care continuum. At the outset, the client was only interested in an estate plan. Shawn and I helped this client get his estate plan in order, which included a medical power of attorney, a financial power of attorney, and a pour-over will. Additionally, we established an asset protection trust for him for the purpose of protecting the majority of his funds from a potential Medicaid spend-down. Some years later, he needed help with his daily activities, and we filed a claim on his behalf with the Dept. of Veterans Affairs and got him approved for a Veterans benefit of $1,949.00 a month. Several months after his approval from the Veterans Administration, this client’s health deteriorated, and he required skilled nursing care. Because he was going to have more medical expenses than the Veteran’s benefit could assist with, we then helped him file for Medicaid. Within three months, Medicaid benefits started paying for almost all of this individual’s care. This client continues to receive Medicaid benefits, and we were able to preserve $120,000 of his $150,000 estate.

Between organizing his information, preparing the necessary legal documents, gathering asset information, tracking medical expenses, filing the appropriate claims on an ongoing basis, some of which are required to be filed annually, and monitoring his care, this case exemplifies all of the stages of the care continuum. It also highlights the tremendous benefits that our fixed-fee life care planning clients receive as individuals who are under the continued care, guidance, and protection of the Law Offices of Shawn Weera.

There are several hundred more cases that we have worked on wherein the client had the same progression from in-home care to assisted living care to nursing home care. In every one of those cases, expenses jumped from a few hundred dollars a month, to a few thousand dollars a month, to eventually more than $10,000.00 a month. Each step of the way, Shawn and I would re-analyze the client’s needs and pursue the assistance that was available to him. For those clients who adopted our asset protection recommendations, the majority of the value of their estates has been preserved, despite astronomical ongoing care expenses.

At the Law Offices of Shawn Weera, we have 15 years of experience using our skills, dedication, and compassion to achieve our mission. Our goals include: Being responsive to our clients’ individual needs and circumstances, coordinating legal planning with federal, state, and local resources; adhering to extraordinary standards of ethics and values; and exceeding our clients’ expectations with high quality legal services and a comprehensive team approach.

If you have questions about estate or asset protection planning, have a loved one in an assisted living or nursing home facility, or have a loved one who is receiving in-home care, please call our office at (616) 940-3370 to schedule a free, no-obligation consultation. The information is free, and help is only a phone call away.