Planning for Long Term Care Is Important

September 15, 2022

Elder law attorneys have far too many stories of people who fail to plan, plan incorrectly or incompletely, or plan to fail by doing nothing at all, as described in the article “Elder Care: People in a pickle” from The Sentinel. Planning for long term care is important. Here’s a sad story.

A woman calls the elder law office because her husband fell at home—a common occurrence among the elderly. He was hospitalized and is now receiving rehabilitation in a nursing home. The treating physician recommends that the husband remain in the nursing home because he has significant limitations and his wife, who has her own medical issues, isn’t physically able to care for him.

The wife agrees. However, she has a host of challenges to overcome that were never addressed. The husband took care of all of the finances, for decades telling his wife not to worry. Now, she has no idea what their resources are. Can they afford to pay for his nursing home care? She doesn’t know. Nor does she have the authority to access their accounts, because there are accounts in her husband’s name only and she does not have access to them.

Her husband’s insistence of being the only one in control of their finances has put her in a terrible predicament. Without the estate planning documents to give her access to everything, including his own accounts, she can’t act. Can he now sign a Power of Attorney? Maybe—but maybe not, if it can be shown he lacks capacity.

If the couple cannot pay the nursing home bill, they have given their children a problem, since they live in Pennsylvania, where the state’s filial support law allows the nursing home to sue one or more of the children for the cost of their parent’s care. (This law varies by state, so check with a local elder lawyer to see if it could impact your family). Even if the wife knew about the family’s finances and could apply for public benefits, in this case his eligibility would be denied, as they had purchased a home for one of their children within five years of his being moved to the nursing home. Medicaid has a five-year look back period, and any large transfers or purchases would make the husband ineligible for five years.

If this sounds like a financial, legal and emotional mess, it’s a fair assessment.

Unexpected events happen, and putting off planning for them, or one spouse insisting “I’ve got this” when truly they don’t, takes a big impact on the future for spouses and family members. All of the decisions we make, or fail to make, can have major impacts on the future for our loved ones.

Other situations familiar to elder lawyers: a parent naming two children as co-agents for power of attorney. When she began showing symptoms of dementia, the two children disagreed on her care and ended up in court.

A father has guardianship for a disabled adult son. He promised the son he’d always be able to live in the family home. The father becomes ill and must move into a nursing home. Neither one is able to manage their own personal finances, and no financial or practical arrangements were made to fulfill the promise to the son.

No one expects to have these problems, but even the most loving families find themselves snarled in legal battles because of poor planning. Careful planning for long term care is important. It may not reduce the messy events of life, but it can reduce the stress and expenses. By choosing to exert some control over who can help you with decisions and what plans are in place for the future, you can leave a legacy of caring. If you would like to learn more about long term care issues, please visit our previous posts.

Reference: The Sentinel (Aug. 19, 2022) “Elder Care: People in a pickle”

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Important to consider Long-Term Care Insurance

September 8, 2022

It becomes especially important to plan for the future when the world around us seems so volatile and unpredictable. We can’t control future health care costs, but we can plan for them, says a recent article titled “Economic instability and the need to plan for long-term care” from The Indiana Lawyer. Failing to plan could mean lost assets and a lost legacy. It is important to consider long-term care insurance as you get older.

According to Genworth’s Cost of Care survey, from 2004 to 2021, the cost of long-term care has outpaced inflation by a large margin. Many of the increases were driven by supply and demand issues. There aren’t enough people to care for the growing population of people needing services, which will continue to be the case for at least the next decade. A total of 10,000 boomers turn 65 every day and 70% will require care and support services in their lifetimes.

How can assets be protected from long-term costs?

One of the most frequently used tools is an asset protection trust or an irrevocable trust. The irrevocable trust cannot be modified, amended, or terminated without permission of the grantor’s beneficiary or beneficiaries. Once the grantor transfers assets into the trust, the grantor no longer has the rights of ownership. The trust can be designed to minimize taxation, maximize access to long-term benefits and protect assets.

The trust must be drafted properly, so trust income and principal, if needed, can be accessed.

The timing is critical. Asset protection trusts must be created when there is no immediate health care crisis, and the grantor has no need for long-term care. The best trust is created when the person is in good health and of sound mind.

Those who are nearing retirement, passed retirement age or who may have health issues in the distant future and expect to need Medicaid in the future are best candidates for an asset protection trust.

Medicaid’s Five Year Look Back Period

Planning needs to be done at least five years in advance, as Medicaid looks at the applicant’s past five year’s finances to see if any assets were sold or gifted for under market value. Transferring assets to an irrevocable trust is treated as a gift and violates the five-year look back, making the person ineligible for Medicaid coverage. Nursing home care will have to be paid out-of-pocket until the person becomes eligible.

Asset protection strategies are available for those who need immediate protection of assets. However, they have to done quickly and correctly with an estate planning elder law attorney. People who have suffered a fall and have significant injuries or who have received a diagnosis of a difficult disease should speak with an elder law attorney in a timely manner. They’ll need to discuss preparing for a Medicaid application, what assets can be protected and steps they need to take. It is important to consider long-term care insurance before you reach a point when it is needed. The earlier the plan is put into place, the better. If you would like to learn more about long-term care insurance, please visit our previous posts.

Reference: The Indiana Lawyer (Aug. 3, 2022) “Economic instability and the need to plan for long-term care”

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Avoid Family Disagreements over Caregiving

June 2, 2022

Taking care of a loved one can be all consuming and taxing to family relationships. According to the “Caregiving in the U.S. 2020” report by AARP and the National Alliance for Caregiving, “about one in five caregivers report experiencing high financial strain as a result of providing care.” This is especially true for those involved in high-intensity caregiving for over 21 hours a week, who often deplete their savings and go into debt. However, there are steps you can take to avoid family disagreements over caregiving.

AARP’s recent article entitled “How Caregivers Can Stop Arguing About Money” says caregiving-related money conflicts are only partially about dollars and cents. Some are predicated on differences in priorities:

Should the family’s finite resources be directed to the care recipient or spread among all family members?
Should the cost of something like a front door ramp for a parent’s house be borne equally by all the adult siblings or solely by the primary caregiver who lives with that parent?
Should a declining parent give all her assets to the adult child committed to caregiving or divide them among her children?

Caregivers, care recipients and other family members may have different answers to such questions and then can get into heated discussions. This can mean hard feelings that can destroy family relationships during the caregiving years and beyond. Here are a few ideas on how to avoid such conflicts:

One strategy to help caregiving families avoid constant financial conflict is to handle little and big questions differently. For the little decisions that need to be made every day, such as which pharmacy to use, family members should defer to the primary caregiver’s judgment. However, for more consequential decisions like selling the family home to help pay for a parent’s nursing home care, all family members should feel their opinions are sought out and respected. It is typically the family members who feel like their voices aren’t heard, who protest the most loudly and cause the fiercest debates.

If caregiving family members still can’t find a way to stop arguing about money, then they should consider meeting with a member of the clergy, a family therapist, or elder mediator. A pro is trained to manage emotions, clarify points and frame acceptable compromises. They can help avoid further disagreements over caregiving that can cause damage to already damaged family relationships. If you would like to learn more about caregiving, or long-term care facilities, please visit our previous posts.

Reference: AARP (Feb. 8, 2022) “How Caregivers Can Stop Arguing About Money”

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Avoid the Economic Dangers of Caregiving

April 13, 2022

AARP’s recent article entitled “5 Steps to Avoid Economic Pitfalls of Caregiving” reports that 20% of family caregivers have to take unpaid time off from work due to their caregiving responsibilities. There are ways to avoid the economic danger of caregiving.

The average lifetime cost to caregivers in lost wages and reduced pension and Social Security benefits is $304,000 — that is $388,000 in today’s dollars. This does not count the more than $7,200 that most caregivers spend out of pocket each year, on average, on housing, health care and other needs for loved ones in their care, according to the AARP report.

Step 1: Calculate the gap. The average cost of a full-time home health aide is nearly $62,000 a year, and a semiprivate room in a nursing home runs about $95,000. Ask your parents about the size of their nest egg, how fast they are spending it, whether they have long-term care insurance and how much equity they have in their home. Compare your parents’ assets against their projected expenses to determine your gap.

Step 2: Fill the gap without going broke. Try to find free resources: Use the National Council on Aging’s Benefits Check Up tool to find federal, state and private benefit programs that apply to your situation. Then create a budget to determine what you can contribute, physically and in dollars, to closing the gap. In addition, ask your siblings if they can pitch in.

Step 3: If a gap remains, consider Medicaid. This program can cover long-term care. However, your parent or parents may need to spend down assets to qualify. Note that if just only one parent is in a nursing home, the other can generally keep half of the assets, up to a total of $137,400 (not including their house). However, the rules differ by state. As a result, this can get complicated. Speak with an elder-law attorney for help.

Step 4: No matter what the gap, try to get paid. If your parents have enough resources, you may discuss having them pay you for caregiving. However, you should speak with an attorney first about drawing up a contract. This should include issues like the number of hours a day you will spend on providing care and whether doing so will require you to quit your job. The caregiving agreement is written carefully, so that it does not violate Medicaid regulations about spending down assets.

Step 5: Protect your own earning ability. If you are mid-career, it is very difficult to leave a job for family responsibilities like caregiving and then go back into the workforce at the same salary. The Society for Human Resource Management says that it costs six to nine months’ salary to replace an employee, so many employers now see it is less expensive to make an accommodation.

It can be difficult to avoid the economic dangers of caregiving. Work closely with an elder law attorney to ensure you have everything in order to protect yourself and your loved one. We can help! If you would like to learn more about caregiving, please read our previous posts.

Reference: AARP (Feb. 24, 2022) “5 Steps to Avoid Economic Pitfalls of Caregiving”

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Advance Care Planning a Benefit to Seniors

March 23, 2022

Advance care planning (ACP) is an ongoing discussion that involves shared decision-making to clarify and document an individual’s wishes, preferences and goals regarding their medical care. This is extremely important to making certain that they get the medical care they want, if they become incapacitated and unable to make their own decisions. Advance care planning is a major benefit to seniors. Despite the importance of ACP, most Americans don’t have their medical wishes documented, according to Medical Life Sciences News’ recent article entitled “Comprehensive approach may promote Advance Care Planning for elderly adults.”

In the pandemic, too many families exhausted themselves attempting to address this issue, agonizing over what their loved one might have chosen for their care if they had been given the chance.

Dr. Angelo Volandes, MD, MPH, physician and researcher, Division of General Internal Medicine at Massachusetts General Hospital, and colleagues started the Advance Care Planning: Communicating with Outpatients for Vital Informed Decisions (ACP-COVID) pragmatic trial. This experiment was designed to see if ACP participation during the pandemic would increase following implementation of video decision aids and clinician communication skills training. They also looked at how these interventions would affect ACP documentation among patients from ethnic and racial minority groups, specifically African Americans and Hispanics.

The trial included a large, diverse patient population aged 65+ from 22 outpatient clinics at Northwell Health, the largest healthcare system in New York State. ACP documentation from three six-month time periods was compared:

Pre-COVID-19
The first wave of COVID-19; and
An intervention period.

The findings showed that ACP documentation was significantly greater among all groups during the intervention period, with African American and Hispanic patients showing the most significant increases.

“The stark disparity in COVID-related outcomes for African American and Hispanic patients highlights a reality already known by many: our healthcare system routinely fails to meet the needs of minority patients. No one intervention or initiative is going to correct all those failings though advance care planning, through engaging and empowering patients, is one of the most effective, immediate ways to address disparities in care,” adds Volandes, who is also an Associate Professor of Medicine at Harvard Medical School.

“Fundamentally, advance care planning aims to empower patients. The results of our study demonstrate the importance of meeting patients where they are,” adds Volandes. “Whether that means providing information in their native language or sharing educational material via text rather than a patient portal, if advance care planning is to be about the patient and we need to find ways to ensure that they feel they have the knowledge and ability to make decisions alongside their clinicians when they deem the time is right. COVID-19 has made ACP more important than ever, and especially in communities that have been hardest hit by the pandemic.” The bottom line is that advance care planning can be a huge benefit to seniors and their caregivers. Work closely with an elder law attorney to begin the planning process. If you would like to learn more about long-term care and nursing home planning, please visit our previous posts.

Reference: Medical Life Sciences News (Feb. 28, 2022) “Comprehensive approach may promote Advance Care Planning for elderly adults”

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Planning items to consider in your 50s

January 19, 2022

Many financial planning articles are geared towards people starting out or those nearing retirement. But what about people in their 50s? The Street’s recent article entitled “5 Things to Do in Your 50s,” says that they need help, too. Here are five simple planning items to consider in your 50s.

Maximize your retirement plan. When you turn 50, the IRS lets you contribute more to your retirement accounts each year. Known as “catch-up contributions,” if you have the cash flow, take advantage of this.

Fund a Health Savings Account (HSA). If you’re eligible for an HSA, contribute to it! Even a small amount each year will make a difference.

Long-term care. Think about buying insurance to mitigate the risk of paying out of pocket for medical expenses. Age 55-60 is a good time for purchasing a policy, as they tend to be less expensive than purchasing one in your late 60s.

Review your estate planning documents. Your circumstances, financial condition and federal and state laws can change. Make certain that you review your estate plan every few years and keep it up-to-date.

Toss junk and focus on experiences. While not really financial planning-related, it’s important to speak with your children and friends and see if they want to rummage through boxes of old pictures, silverware and sweaters years from now. Probably not. They most likely would want you to keep what’s most valuable and toss the rest. Rather than spending money on keepsake items, perhaps spend it on trips with the family or meaningful experiences that your loved ones will cherish for a lifetime. You might also donate to a charity that enriches you and makes you feel fulfilled.

An experienced estate planning attorney will walk you through the various planning items to consider, now that you’re in your 50s. If you would like to read more about estate planning for older adults, please visit our previous posts.

Reference: The Street (Nov. 24, 2021) “5 Things to Do in Your 50s”

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Costs of Long-Term Care can be Challenging

December 30, 2021

The potential costs of long-term care be challenging for even a relatively prosperous patient if they are forced to stay for some time in a nursing home. SGE’s recent article entitled “How to Pay for Long-Term Care” explains that although long-term care insurance can be a good way to pay for long-term care costs, not everyone can buy a policy. Insurance companies won’t sell coverage to people already in long-term care or having trouble with activities of daily living. They may also refuse coverage, if you have had a stroke or been diagnosed with dementia, cancer, AIDS or Parkinson’s Disease. Even healthy people over 85 may not be able to get long-term care coverage.

However, there are a number of options for covering these expenses, including the following:

Federal and state governments. While the federal government’s health insurance plan doesn’t cover most long-term care costs, it would pay for up to 100 days in a nursing home if patients required skilled services and rehabilitative care. Skilled home health or other skilled in-home service may also be covered by Medicare. State programs will also pay for long-term care services for people whose incomes are below a certain level and meet other requirements.
Private health insurance. Employer-sponsored health plans and other private health insurance will cover some long-term care costs, such as shorter-term, medically necessary skilled care.
Long-term care insurance. Private long-term care insurance policies can cover many of the costs of long-term care.
Private savings. Older adults who require long-term care that’s not covered by government programs and who don’t have long-term care insurance can use money from their retirement accounts, personal savings, brokerage accounts and other sources.
Health savings accounts. Money in these tax-advantaged savings can be withdrawn tax-free to pay for qualifying medical expenses, such as long-term care. However, only those in high-deductible health plans can put money into health savings accounts.
Home equity loans. Many older adults have paid off their mortgages or have a lot of equity in their homes. A home equity loan is a way to tap this value to pay for long-term care.
Reverse mortgage. This allows a homeowner to get what amounts to a home equity loan without paying interest or principal on the loans while they’re alive. When the homeowner dies or moves out, the entire balance of the loan becomes due. The lender usually takes ownership.
Life insurance. Asset-based long-term care insurance is a whole life insurance policy that permits the policyholder to use the death benefits to pay for long-term care. Life insurance policies can also be purchased with a long-term care rider as a secondary benefit.
Hybrid insurance policies. Some long-term care insurance policies are designed annuities. With a single premium payment, the insurer provides benefits that can be used for long-term care. You can also buy a deferred long-term care annuity that’s specially designed to cover these costs. Some permanent life insurance policies also have long-term care riders.

While the costs of long-term care can be challenging, most people will not face extremely burdensome long-term care costs because nursing home stays tend to be short, since statistics show that most people died within six months of entering a nursing home. Moreover, the vast majority of elder adults aren’t in nursing homes, and many never go into them. If you would like to learn more about long-term care, please visit our previous posts.

Reference: SGE (Dec. 4, 2021) “How to Pay for Long-Term Care”

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Restructure Assets to Qualify for Medicaid

December 29, 2021

Some people believe that Medicaid is only for poor and low-income seniors. However, with proper and thoughtful estate planning and the help of an attorney who specializes in Medicaid planning, all but the very wealthiest people can often qualify for program benefits. There are ways to restructure assets to qualify for Medicaid.

Kiplinger’s recent article entitled “How to Qualify for Medicaid” says that unlike Medicare, Medicaid isn’t a federally run program. Operating within broad federal guidelines, each state determines its own Medicaid eligibility criteria, eligible coverage groups, services covered, administrative and operating procedures and payment levels.

The Medicaid program covers long-term nursing home care costs and many home health care costs, which are not covered by Medicare. If your income exceeds your state’s Medicaid eligibility threshold, there are two commonly used trusts that can be used to divert excess income to maintain your program eligibility.

Qualified Income Trusts (QITs): Also known as a “Miller trust,” this is an irrevocable trust into which your income is placed and then controlled by a trustee. The restrictions are tight on what the income placed in the trust can be used for (e.g., both a personal and if applicable a spousal “needs allowance,” as well as any medical care costs, including the cost of private health insurance premiums). However, due to the fact that the funds are legally owned by the trust (not you individually), they no longer count against your Medicaid income eligibility.

Pooled Income Trusts: Like a QIT, these are irrevocable trusts into which your “surplus income” can be placed to maintain Medicaid eligibility. To take advantage of this type of trust, you must qualify as disabled. Your income is pooled together with the income of others and managed by a non-profit charitable organization that acts as trustee and makes monthly disbursements to pay expenses on behalf of the individuals for whom the trust was made. Any funds remaining in the trust at your death are used to help other disabled individuals in the trust.

These income trusts are designed to create a legal pathway to Medicaid eligibility for those with too much income to qualify for assistance, but not enough wealth to pay for the rising cost of much-needed care. Like income limitations, the Medicaid “asset test” is complicated and varies from state to state. Generally, your home’s value (up to a maximum amount) is exempt, provided you still live there or intend to return. Otherwise, most states require you to spend down other assets to around $2,000/person ($4,000/married couple) to qualify.

Sit down with an experienced elder law attorney and your estate planning attorney. Together they can help restructure your assets to qualify for Medicaid. If you would like to learn more about Medicaid, please visit our previous posts.

Reference: Kiplinger (Nov. 7, 2021) “How to Qualify for Medicaid”

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When to have Healthcare conversation with Parents?

December 23, 2021

You have been noticing that your mother or father appears to be in cognitive decline. But you wonder when to have a healthcare conversation with your parents? Waiting until a senior’s decline is apparent may already be too late, says CNBC’s recent article entitled “Waiting to talk finance with an aging parent in cognitive decline is a mistake, experts say.”

Adult children should be talking to their elderly parents about this while they’re still working because they’re still competent and still able to fund long-term care and pay the premiums from income.

Some incidents that could trigger these conversations include a parent thinking about downsizing, claiming Social Security, going on an extended trip, or finding out one of their friends is going into long-term care.

Adult children should ask questions to get a clear sense of their parents’ financial situation. However, they should understand that getting this information may take several discussions.

Here are questions to ask your parents in stages, over a period of time (from least uncomfortable to most):

Where do you keep your financial and estate planning documents?
What assets do you have and what are your debts?
Is it possible to meet with your advisors to have a good understanding in the event of a crisis?
Who are your healthcare professionals?
What medications do you take and where’s your pharmacy?
Do you have long-term care insurance or other plans for long-term care?
What are your wishes as to end-of-life care and funeral plans and expenses?
If you have a medical crisis, what kind of treatment do you want?

Evaluate your parents’ responses with the help of an elder law attorney to these basic questions and plan the next steps.

There’s some paperwork that should be done at this point, if it hasn’t already. This includes a power of attorney, healthcare directive and a living will. Do not wait to have a healthcare conversation with your parents. Discuss your options and seek advice from an experienced Elder Law attorney. If you are interested in learning more about Elder Law, please visit our previous posts.

Reference: CNBC (Nov. 30, 2021) “Waiting to talk finance with an aging parent in cognitive decline is a mistake, experts say”

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Divert Assets to maintain Medicaid Eligibility

December 8, 2021

Medicaid is not just for poor and low-income seniors. With the right planning, assets can be protected for the next generation, while helping a person become eligible for help with long-term care costs. There are strategies to divert assets to maintain Medicaid eligibility.

Medicaid was created by Congress in 1965 to help with insurance coverage and protect seniors from the costs of medical care, regardless of their income, health status or past medical history, reports Kiplinger in a recent article “How to Restructure Your Assets to Qualify for Medicaid.” Medicaid was a state-managed, means-based program, with broad federal parameters that is run by the individual states. Eligibility criteria, coverage groups, services covered, administration and operating procedures are all managed by each state.

With the increasing cost and need for long-term care, Medicaid has become a life-saver for people who need long-term nursing home care costs and home health care costs not covered by Medicare.

If the household income exceeds your state’s Medicaid eligibility threshold, two commonly used trusts may be used to divert excess income to maintain program eligibility.

QITs, or Qualified Income Trusts. Also known as a “Miller Trust,” income is deposited into this irrevocable trust, which is controlled by a trustee. Restrictions on what the income in the trust may be used for are strict. Both the primary beneficiary and spouse are permitted a “needs allowance,” and the funds may be used for medical care costs and the cost of private health insurance premiums. However, the funds are owned by the trust, not the individual, so they do not count against Medicaid eligibility.

If you qualify as disabled, you may be able to use a Pooled Income Trust. This is another irrevocable trust where your “surplus income” is deposited. Income is pooled together with the income of others. The trust is managed by a non-profit charitable organization, which acts as a trustee and makes monthly disbursements to pay expenses for the individuals participating in the trust. When you die, any remaining funds in the trust are used to help other disabled persons.

Meeting eligibility requirements are complicated and vary from state to state. An estate planning attorney in your state of residence will help guide you through the process, using his or her extensive knowledge of your state’s laws. Mistakes can be costly—and permanent.

For instance, your home’s value (up to a maximum amount) is exempt, as long as you still live there or will be able to return. Otherwise, most states require you to divert other income to $2,000 per person or $4,000 per married couple to qualify.

Transferring assets to other people, typically family members, is a risky strategy. There is a five-year look back period and if you’ve transferred assets, you may not be eligible for five years. If the person you transfer assets to has any personal financial issues, like creditors or divorce, they could lose your property.

Asset Protection Trusts, also known as Medicaid Trusts. You may transfer most or all of your assets into this trust, including your home, and maintain the right to live in your home. Upon your death, assets are transferred to beneficiaries, according to the trust documents.

Right of Spousal Transfers and Refusals. Assets transferred between spouses are not subject to the five-year look back period or any penalties. New York and Florida allow Spousal Refusal, where one spouse can legally refuse to provide support for a spouse, making them immediately eligible for Medicaid. The only hitch? Medicaid has the right to request the healthy spouse to contribute to a spouse who is receiving care but does not always take legal action to recover payment.

Talk with your estate planning attorney if you believe you or your spouse may require long-term care. Consider the requirements and rules of your state. Keep in mind that Medicaid gives you little or no choice about where you receive care. Planning in advance to divert assets to maintain Medicaid eligibility is the best means of protecting yourself and your spouse from the excessive costs of long term care. If you would like to learn more about Medicaid and how it works, please visit our previous posts.

Reference: Kiplinger (Nov. 7, 2021) “How to Restructure Your Assets to Qualify for Medicaid”

Category: Long Term Care Insurance

Planning for Long Term Care Is Important

Important to consider Long-Term Care Insurance

Avoid Family Disagreements over Caregiving

Avoid the Economic Dangers of Caregiving

Advance Care Planning a Benefit to Seniors

Planning items to consider in your 50s

Costs of Long-Term Care can be Challenging

Restructure Assets to Qualify for Medicaid

When to have Healthcare conversation with Parents?

Divert Assets to maintain Medicaid Eligibility

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