When should You Consult an Elder Law Attorney?

December 7, 2021

Elder law attorneys assist seniors or their family caregivers with legal issues and planning that related to the aging process. These attorneys frequently help with tax planning, disability planning, probate and administration of an estate, nursing home placement and many other legal issues. When should you consult an elder law attorney?

Forbes’ recent article entitled “Hiring an Elder Law Attorney,” explains that elder law attorneys are specialists who work with seniors or caregivers of aging family members on legal matters that older adults face as they age. Many specialize in Medicaid planning to help protect a person’s financial assets, when they have Alzheimer’s disease or another debilitating illness that may require long-term care. They can also usually draft estate documents, including a durable power of attorney for health and medical needs, and even a trust for an adult child with special needs.

As you get older, there are legal issues you, your spouse or your family caregivers face. These issues can also change. For instance, you should have powers of attorney for financial and health needs, in case you or your spouse become incapacitated. You might also need an elder law attorney to help transfer assets, if you or your spouse move into a nursing home to avoid spending your life savings on long-term care.

Elder law attorneys can help with a long list of legal matters seniors frequently face, including the following:

Preservation and transfer of assets
Accessing health care in a nursing home or other managed care environment and long-term care placements
Estate and disability planning
Medicare, Social Security and disability claims and appeals
Supplemental insurance and long-term health insurance claims and appeals
Elder abuse and fraud recovery
Conservatorships and guardianships
Housing discrimination and home equity conversions
Health and mental health law.

The matters listed above are all issues that should motivate you to consult an elder law attorney. Certified Elder Law attorney Melissa Donovan at Texas Trust Law can help! If you would like to learn more about elder law, please visit our previous posts.

Reference: Forbes (Oct. 4, 2021) “Hiring an Elder Law Attorney”

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Talking to Parents about Estate Planning

November 9, 2021

Talking to your parents about estate planning can be a daunting task. If you don’t have this conversation when they are able to share information and provide you with instructions, helping with their care if they become incapacitated or dealing with their estate after they pass will be far more difficult. None of this is easy, but there are some practical strategies shared in the article “How to Talk to Your Parents About Estate Planning” from The Balance.

Parents worry about children fighting over estates after they pass, but not having a “family meeting” to speak about estate planning increases the chance of this happening. In many cases, family conflicts lead to litigation, and everyone loses.

Start by including siblings. Including everyone creates an awareness of fairness because no one is being left out. A frank, open conversation including all of the heirs with parents can prevent or at least lessen the chances for arguments over what parents would have wanted. Distrust grows with secrets, so get everything out in the open.

When is the right time to have the conversation? There is no time like the present. Don’t wait for an emergency to occur—what most people do—but by then, it’s too late.

Estate planning includes preparing for issues of aging as well as property distribution after death. Health care power of attorney and financial power of attorney need to be prepared, so family members can be involved when a parent is incapacitated. An estate planning attorney will draft these documents as part of creating an estate plan.

The unpredictable events of 2020 and 2021 have made life’s fragile nature clear. Now is the time to sit down with family members and talk about the plans for the future. Do your parents have an estate plan? Are there plans for incapacity, including Long-Term Care insurance? If they needed to be moved to a long-term facility, how would the cost be covered?

Another reason to have this conversation with family now is your own retirement planning. The cost of caring for an ailing parent can derail even the best retirement plan in a matter of months.

Define roles among siblings. Who will serve as power of attorney and manage mom’s finances? Who will be the executor after death? Where are all of the necessary documents? If the last will and testament is locked in a safe deposit box and no one can gain access to it, how will the family manage to follow their parent’s wishes?

Find any old wills and see If trusts were established when children were young. If an estate plan was created years ago and the children are now adults, it’s likely all of the documents need to be revised. Review any trusts with an estate planning attorney. Those children who were protected by trusts so many years ago may now be ready to serve as executor, trustees, power of attorney or health care surrogate.

Talking to your parents about estate planning does not have to be huge event. Usually, a complete understanding of the parent’s wishes and reasons behind their estate plan takes more than a single conversation. Some of the issues may require detailed discussion, or family members may need time to process the information. However, as long as the parents are living, the conversation should continue. Scheduling an annual family meeting, often with the family’s estate planning attorney present, can help everyone set long-term goals and foster healthy family relationships for multiple generations. If you would like to learn more about family meetings, and other difficult conversations about estate planning, please visit our previous posts.

Reference: The Balance (Oct. 15, 2021) “How to Talk to Your Parents About Estate Planning”

Estate Planning for Special Needs Children

October 18, 2021

Part of providing comprehensive estate planning for families includes being prepared to address the needs of family members with special needs. Estate planning for special needs children comes with its own set of challenges. Some of the tools used are trusts, guardianship and tax planning, according to the article “How to Help Clients With Special Needs Children” from Accounting Web. Your estate planning attorney will be able to create a plan for the future that addresses both legal and financial protections.

A survey from the U.S. Department of Health and Human Services revealed that 12.8 percent of children in our country have special health care needs, while 20 percent of all American households include a child with special needs. The CDC (Center for Disease Control) estimates that 26% of adults in America have some type of disability. In other words, some 61 million Americans have some kind of disability.

Providing for a child with special needs can be expensive, depending upon the severity of the disability. The first estate planning step for families is to have a special needs trust for your children, created through an estate planning attorney with experience in this area. The goal is to have money for the support and care of the child available, but for it not to be in the child’s name. While there are benefits available to the child through the federal government, almost all programs are means-tested, that is, the child or adult with special needs may not have assets of their own.

For many parents, a good option is a substantial life insurance policy, with the beneficiary of the policy being the special needs trust. Depending on the family’s situation, a “second to die” policy may make sense. Both parents are listed as the insured, but the policy does not pay until both parents have passed. Premiums may be lower because of this option.

It is imperative for parents of a child with special needs to have their estate plan created to direct their assets to go to the special needs trust and not to the child directly. This is done to protect the child’s eligibility to receive government benefits.

Parents of a child with special needs also need to consider who will care for their child after they have died, and have this clearly stated in their estate plan. A guardian needs to be named as early as possible in the child’s life, in case something should occur to the parents. The guardianship may end at age 18 for most children, but for an individual with special needs, more protection is needed. The guardian and their role need to be spelled out in documents. It is a grave mistake for parents to assume a family member or sibling will care for their child with special needs. The need to prepare for guardianship cannot be overstated.

The special needs trust will also require a trustee and a secondary trustee, if at some point the primary trustee cannot or does not want to serve.

It may seem easier to name the same person as the trustee and the guardian, but this could lead to difficult situations. A better way to go is to have one person paying the bills and keeping an eye on costs and a second person taking care of the individual.

Planning for the child’s long-term care needs to be done as soon as possible. A special needs trust should be established and funded early on, wills need to be created and/or updated, and qualified professionals become part of the family’s care for their loved one.

Having a child with special needs is a different kind of parenting. So estate planning for special needs children will also be different. A commonly used analogy is for a person who expected to be taking a trip to Paris but finds themselves in Holland. The trip is not what they expected, but still a wonderful and rewarding experience.

If you would like to read more about special needs planning, please visit our previous posts.

Reference: Accounting Web (Sep. 13, 2021) “How to Help Clients With Special Needs Children”

understanding of how a conservatorship works

Understanding how a Conservatorship Works

October 7, 2021

Kiplinger’s recent article titled “Britney Spears’ Sad Song … Warning: This Could Happen to You” says that conservatorship is a topic that’s been in the news lately with Britney’s recent court battle. Most people do not have an understanding of how a conservatorship works.

In Britney’s case, while there has not been any evidence alleged of actual fraud or financial abuse in her conservatorship, she lost nearly all control over her finances, her business affairs and the most personal aspects of her life.

She also doesn’t want her father to be the person to hold that much power or control over her life.

A judge can take charge of an individual’s personal and financial decisions and appoint a third party to make decisions almost on an unlimited basis. These proceedings can exact a significant emotional toll and be tremendously expensive and time-consuming.

Conservatorship can happen to anyone, if and when you’re too disabled (due to an accident or illness) or too incompetent (due to infirmity of mind, old age or dementia, or a similar condition) to handle your own affairs.

If your estate plan addresses this with a chain of command to act on your behalf, no formal court proceedings would be required. Your wishes can be honored, and all the drama like that which Britney Spears has endured can be avoided.

If you are under age 60, there is a four to five times greater likelihood that you’ll become disabled, due to an accident or illness, for a period of more than one year, than your chances of dying. This is because modern medicine can often prevent death but not cure the illness or condition causing the disability. If you’re over age 60, there’s a 70% chance that, during your remaining lifetime, you’ll be too disabled or incompetent to act for yourself, for a period of at least two to 2½ years.

However, Britney Spears’ battle to end her court-ordered conservatorship took an unexpected turn recently, when her father and the conservator of her estate, Jamie Spears, filed a petition to end the arrangement. Mr. Spears cited his daughter’s pleas at two separate court hearings over the summer in his request to terminate the 13-year conservatorship.

“Recent events related to this conservatorship have called into question whether circumstances have changed to such an extent that grounds for establishment of a conservatorship may no longer exist,” the filing states. The bottom line is this: if you, or a loved one come to that point in life, understanding how a conservatorship works is the first step toward beginning that process – and avoiding some of the more difficult problems reflected in Britney Spears’ case.

If you would like to learn more about conservatorship, please visit our previous posts.

Reference: Kiplinger (July 14, 2021) “Britney Spears’ Sad Song … Warning: This Could Happen to You”

What Should Women Know about Long-Term Care?

September 23, 2021

A longer retirement increases the odds of needing long-term care. An AARP study found more than 70% of nursing home residents were women, says Kiplinger’s recent article entitled “A Woman’s Guide to Long-Term Care.” What should women know about long-term care?

Living longer also increases the chances of living it alone because living longer may mean outliving a spouse. According to the Joint Center for Housing Studies of Harvard University, “In 2018, women comprised 74% of solo households age 80 and over.”

The first step is to review your retirement projections. It’s wise to look at “what-if” scenarios: What-if the husband passes early? How does that impact their retirement? What if a female client lives to 100? Will she have enough to live on? What if a single woman needs long-term care for dementia? Alzheimer’s and dementia can last for years, eating up a retiree’s nest egg.

Medicare and Medicaid. Government programs, such as Medicare and Medicaid, are complicated. For instance, Medicare may cover some long-term care expenses, but only for the first 100 days. Medicare doesn’t pay for custodial care (at home long-term care). Medicaid pays for long-term care. However, you must qualify financially.

Planning for long-term care. If a woman has a high retirement success rate, she may want to self-insure her future long-term care expenses. This can mean setting up a designated long-term care investment account solely to be used for future long-term care expenses. If a woman has a modest degree of retirement success, she may want to lower her current expenses to save more for the future. She may also want to look at long-term care insurance.

Social Security. Women can also think about waiting to claim Social Security until age 70. If women live longer, the extra benefits accrued by waiting can help with long-term care. Women with a higher-earning husband may want to ask the higher-earning spouse to delay until age 70, if possible. When the higher-earning spouse dies, the widow can step into the higher benefit. The average break-even age is generally around 77-83 for Social Security. If an individual can live longer than 83, the more dollars and sense it makes to delay collecting until age 70.

Estate Planning. Having a comprehensive estate plan is a must. Women (and men) should have a power of attorney (POA). A POA gives a trusted agent the ability to write checks and send money to pay for long-term care.

When it comes to long-term care, women should know their own health and the potential drain on the retirement savings. Work with a financial advisor and estate planning attorney to make sure your later years are secure.

If you would like to learn more about long-term care, please visit our previous posts.

Reference: Kiplinger (July 11, 2021) “A Woman’s Guide to Long-Term Care”

Women should plan for Long-Term Care

August 13, 2021

Women face some unique challenges as they get older. The Population Reference Bureau, a Washington based think tank, says women live about seven years longer than men. This living longer means planning for a longer retirement. While that may sound nice, a longer retirement increases the chances of needing long-term care. Thus, women should consider how to plan for long-term care.

Kiplinger’s recent article entitled “A Woman’s Guide to Long-Term Care” explains that living longer also increases the chances of going it alone and outliving your spouse. According to the Joint Center for Housing Studies of Harvard University, in 2018 women made up nearly three-quarters (74%) of solo households age 80 and over.

Ability to pay. Long-term care is costly. For example, the average private room at a long-term care facility is more than $13,000/month in Connecticut and about $11,000/month in Naples, Florida. There are some ways to keep the cost down, such as paying for care at home. Home health care is about $5,000/month in Naples, Florida. Multiply these numbers by 1.44 years, which is the average duration of care for women. These numbers can get big fast.

Medicare and Medicaid. Medicare may cover some long-term care expenses, but only for the first 100 days. Medicare does not pay for custodial care (at home long-term care). Medicaid pays for long-term care, but you have to qualify financially. Spending down an estate to qualify for Medicaid is one way to pay for long-term care but ask an experienced Medicaid Attorney about how to do this.

Make Some Retirement Projections. First, consider an ideal scenario where perhaps both spouses live long happy lives, and no long-term care is needed. Then, ask yourself “what-if” questions, such as What if my husband passes early and how does that affect retirement? What if a single woman needs long-term care for dementia?

Planning for Long-Term Care. If a female client has a modest degree of retirement success, she may want to decrease current expenses to save more for the future. Moreover, she may want to look into long-term care insurance.

Waiting to Take Social Security. Women can also consider waiting to claim Social Security until age 70. If women live longer, the extra benefits accrued by waiting can help with long-term care. Women with a higher-earning husband may want to encourage the higher-earning spouse to delay until age 70, if that makes sense. When the higher-earning spouse dies, the surviving spouse can step into the higher benefit. The average break-even age is generally around age 77-83 for Social Security. If an individual can live longer than 83, the more dollars and sense it makes to delay claiming benefits until age 70.

Estate Planning. Having the right estate documents is a must. Both women and men should have a power of attorney (POA). This legal document gives a trusted person the authority to write checks and send money to pay for long-term care.

Living longer means women should plan for long-term care. Work with your estate planning attorney and financial advisor to craft a plan that ensures you are well cared for should long-term care be needed.

If you would like to learn more about long-term care, and other related issues, please visit our previous posts.

Reference: Kiplinger (July 11, 2021) “A Woman’s Guide to Long-Term Care”

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Qualifying for Medicaid can be complicated

August 11, 2021

Qualifying for Medicaid can be complicated. Take this cautionary story for example. An 84-year-old retired police officer recently took a fall in his home and injured his spinal cord. He retired from the police force more than 20 years ago and received a lump sum. Currently, he gets more than $2,000 per month from his pension and Social Security.

How does this retired police officer spend down to qualify for Medicaid, since he is now a paraplegic?

State programs provide health care services in the community and in long-term care facilities. The most common, Medicaid, provides health coverage to millions of Americans, including eligible elderly adults and people with disabilities.

Medicaid is administered by states, according to federal requirements. The program is funded jointly by states and the federal government.

Nj.com’s recent article entitled “How can this retired police officer qualify for Medicaid?” advises that long-term services and supports are available to those who are determined to be clinically and financially eligible. A person is clinically eligible, if he or she needs assistance with three or more activities of daily living, such as dressing, bathing, eating, personal hygiene and walking.

Financial eligibility means that the Medicaid applicant has fewer than $2,000 in countable assets and a gross monthly income of less than $2,382 per month in 2021. The applicant’s principal place of residence and a vehicle generally do not count as assets in the calculation. If an applicant’s gross monthly income exceeds $2,382 per month, he or she can create and fund a Qualified Income Trust with the excess income that is over the limit.

The options for spending down assets to qualify for Medicaid can be complicated and are based to a larger extent on the applicant’s current and future living needs and the amount that has to be spent down.

Consult with an elder law attorney or Medicaid planning lawyer to determine the best way to spend down, in light of an applicant’s specific situation.

If you would like to learn more about Medicaid planning, please visit our previous posts.

Reference: nj.com (July 19, 2021) “How can this retired police officer qualify for Medicaid?”

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Protect Assets and maintain Medicaid Eligibility

June 17, 2021

Medicaid is a welfare program with strict income and wealth limits to qualify, explains Kiplinger’s recent article entitled “You Can Keep Some Assets While Qualifying for Medicaid. Here’s How.” This is a different program from Medicare, the national health insurance program for people 65 and over that largely doesn’t cover long-term care. There are a few ways to protect assets and maintain Medicaid eligibility.

If you can afford your own care, you’ll have more options because all facilities don’t take Medicaid. Even so, couples with ample savings may deplete all their wealth for the other spouse to pay for a long stay in a nursing home. However, you can save some assets for a spouse and qualify for Medicaid using strategies from an Elder Law or Medicaid Planning Attorney.

You can allocate as much as $3,259.50 of your monthly income to a spouse, whose income isn’t considered, and still maintain Medicaid eligibility. Your assets must be $2,000 or less, with a spouse allowed to keep up to $130,380. However, cash, bank accounts, real estate other than a primary residence, and investments (including those in an IRA or 401(k)) count as assets. However, you can keep a personal residence, non-luxury personal belongings (like clothes and home appliances), one vehicle, engagement and wedding rings and a prepaid burial plot.

However, your spouse may not have enough to live on. You could boost a spouse’s income with a Medicaid-compliant annuity. These turn your savings into a stream of future retirement income for you and your spouse and don’t count as an asset. You can purchase an annuity at any time, but to be Medicaid compliant, the annuity payments must begin right away with the state named as the beneficiary after you and your spouse pass away.

Another option is a Miller Trust for yourself, which is an irrevocable trust that’s used exclusively to maintain Medicaid eligibility. If your income from Social Security, pensions and other sources is higher than Medicaid’s limit but not enough to pay for nursing home care, the excess income can go into a Miller Trust. This allows you to qualify for Medicaid, while keeping some extra money in the trust for your own care. The funds can be used for items that Medicare doesn’t cover.

These strategies are designed to protect assets or income for couples; leaving an asset to other heirs is more difficult. Once you and your spouse pass away, the state government must recover Medicaid costs from your estate, when possible. This may be through a lien on your home, reimbursement from a Miller Trust, or seizing assets during the probate process, before they’re distributed to your family.

Note that any assets given away within five years of a Medicaid application date still count toward eligibility. Property transferred to heirs earlier than that is okay. One strategy is to create an irrevocable trust on behalf of your children and transfer property that way. You will lose control of the trust’s assets, so your heirs should be willing to help you out financially, if you need it. Work with an estate planning attorney to craft a plan that protects assets and maintains Medicaid eligibility.

If you would like to learn more about Medicaid planning, please visit our previous posts.

Reference: Kiplinger (May 24, 2021) “You Can Keep Some Assets While Qualifying for Medicaid. Here’s How”

Can I Be Paid as a Caregiver?

June 9, 2021

AARP’s recent article entitled “Can I Get Paid to Be a Caregiver for a Family Member?” says that roughly 53 million Americans provide care without pay to an ailing or aging loved one. They do so for an average of nearly 24 hours per week. The study was done by the “Caregiving in the U.S. 2020” report by AARP and the National Alliance for Caregiving (NAC). This begs the question: Can I be paid as a caregiver?

Medicaid. All 50 states and DC have self-directed Medicaid services for long-term care. These programs let states grant waivers that allow qualified people to manage their own long-term home-care services, as an alternative to the traditional model where services are managed by an agency. In some states, that can include paying a family member as a caregiver. The benefits, coverage, eligibility, and rules differ from state to state.

Veterans have four plans for which they may qualify:

Veteran Directed Care. This plan lets qualified former service members manage their own long-term services and supports. It is available in 37 states, DC, and Puerto Rico for veterans of all ages who are enrolled in the Veterans Health Administration health care system and need the level of care a nursing facility provides but want to live at home or the home of a loved one.

Aid and Attendance (A&A) benefits. This program supplements a military pension to help cover the cost of paying for a caregiver, who may be a family member. These benefits are available to veterans who qualify for VA pensions and meet certain criteria. In addition, surviving spouses of qualifying veterans may be eligible for this benefit.

Housebound benefits. Vets who get a military pension and are substantially confined to their immediate premises because of permanent disability can apply for a monthly pension supplement.

Program of Comprehensive Assistance for Family Caregivers. This program allows for a monthly stipend to a vet’s family member to be paid as a caregiver to provide assistance with everyday activities because of a traumatic injury sustained in the line of duty on or after Sept. 11, 2001.

Other caregiver benefits through the program include the following:

Access to health insurance and mental health services, including counseling
Comprehensive training
Lodging and travel expenses incurred when accompanying vets going through care; and
Up to 30 days of respite care per year.

Payment by a family member. If the person requiring assistance is mentally sound and has sufficient financial resources, that person can pay a family member for the same services a professional home health care worker would provide.

So yes, under certain criteria, you can qualify to be paid as a caregiver. It is best to work carefully with an Elder Law attorney who has experience managing Medicaid and VA issues.

Reference: AARP (May 15, 2021) “Can I Get Paid to Be a Caregiver for a Family Member?”

What are the Early Signs of Dementia?

June 8, 2021

Many adult children are finally seeing their parents in person for the first time since the beginning of the COVID crisis. While it is a comfort to spend time together, you might notice changes in a parent’s behavior that was not apparent on the phone or Zoom. Could this be a sign of cognitive decline? What are the early signs of dementia?

Dementia can diminish focus, the ability to pay attention, language skills, problem-solving and visual perception. It can make it hard for a senior to control his or her emotions and lead to personality changes, says AARP’s recent article entitled “7 Early Warning Signs of Dementia You Shouldn’t Ignore.”

The article provides some of the warning signs identified by dementia experts and mental health organizations:

Difficulty with everyday tasks. Those with dementia may find it increasingly tough to do things, like keep track of monthly bills or follow a recipe while cooking. They also may find it hard to concentrate on tasks, take much longer to do them, or have difficulty completing them.
Repetition. Asking a question, hearing the answer, then repeating the same question a few minutes later, or telling the same story about a recent event multiple times, are causes for concern.
Communication issues. See if a senior has trouble joining in conversations or following along with them, stops abruptly in the middle of a thought, or struggles to think of words or the name of objects.
Getting lost. Those with dementia may have difficulty with visual and spatial abilities.
Changes in personality. A senior who starts acting unusually anxious, confused, fearful or suspicious; becomes upset easily; or loses interest in activities and appears depressed is cause for concern.
Confusion about time and place. Those who forget where they are or can’t remember how they got there should raise a red flag. You should also be concerned if a person becomes disoriented about time (asking on a Friday if it is Monday or Tuesday).
Troubling behavior. If a senior appears to have greater poor judgment when handling money or neglects grooming and cleanliness, it’s a concern.

Here are some of the methods that doctors use to diagnose early signs of dementia:

Cognitive and neuropsychological tests assess language and math skills, memory, problem-solving and other kinds of mental functioning.
Lab tests can help rule out non-dementia causes for the symptoms.
Brain scans like a CT, MRI, or PET imaging can detect changes in brain structure and function. They can identify strokes, tumors and other problems that can cause dementia.
Psychiatric evaluation can determine if a mental health condition is causing or impacting symptoms.
Genetic tests are critical, especially if someone is showing symptoms before age 60. The early onset form of Alzheimer’s is strongly associated with a person’s genes.

Stay aware of these early signs of dementia and make a plan for addressing your parent’s needs as they decline. Work with an Elder Law attorney to learn what you can do to ensure your loved ones are cared for in their later years.

If you would like to learn more about dementia and other cognitive issues, please visit our previous posts.

Reference: AARP (May 4, 2021) “7 Early Warning Signs of Dementia You Shouldn’t Ignore”

Category: Long Term Care Insurance

Talking to Parents about Estate Planning

Estate Planning for Special Needs Children

Understanding how a Conservatorship Works

Qualifying for Medicaid can be complicated

Can I Be Paid as a Caregiver?

What are the Early Signs of Dementia?

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