Elder Law: Disability & Asset Protection Planning

This article discusses the essential basic estate planning considerations and documents every senior citizen ought to have, and provides a concise overview of guardianship, nursing home, medicaid, and asset protection planning in an easy to read format.

Introduction.

Although most of us do not know when a serious disability will occur, we know that almost everyone will experience some form of disability at some time, such as from an automobile accident, or a fall or an illness. If the disability results in mental or physical incapacity, you will not be able to manage your own affairs.

Who do you want to make decisions regarding your health and your business affairs? Don't you want to be the one to decide who has this power and what they may and may not do? If you do no act, the decision may have to be made by a court, and the Court may appoint someone other than whom you would have chosen.

The following paragraphs review various planning techniques that you can employ to help you ensure that your needs and concerns are addressed.

1. Elder Abuse. Unfortunately, more and more people are taking advantage of the elderly. The abuse can be in the form of neglect, physical or psychological mistreatment. Financial abuse by family members and friends seeking to secure a personal advantage under the guise of concern and caring is an insidious abuse of the confidential and trusting relationship they have with the senior citizen. Transfers of assets or changes of beneficiary provisions may result in hardship and serious problems for the senior and cause bitter quarrels and tears apart families and friendships.

Timely and effective planning with the assistance of an elder law attorney can significantly reduce the potential for such abuse. Legal remedies exist through the courts against people who take advantage of the frail and elderly through use of coercion or manipulation, particularly where the senior's memory or ability make rational decisions without undue influence is in question. Whenever there is reason to believe elder abuse is occurring, it is important to seek legal assistance promptly.

2. Professional Guidance. Senior citizens or family members faced with a medical or other crisis may need more than powers-of-attorney. If you want to provide for the support of a disabled child, an aging parent or other loved one, consider a trust. Don't simply leave this responsibility to someone else informally. Moreover, powers-of-attorney terminate automatically upon the death of the grantor.

Trusts are a highly effective vehicle for disability planning, and there several different types, depending on what you need to accomplish. Popular trusts include revocable living trusts, family trusts, credit-shelter trusts, spendthrift trusts, irrevocable life insurance, supplemental needs and other irrevocable trusts.

Frequently, a key concern to the family is how to pay the high cost of nursing home care yet preserve assets and income to avoid impoverishment. Consultation with an attorney experienced in elder law matters can be most helpful to enable the older person and the family to recognize and understand these important issues, engage in asset protection planning and to take advantage of the benefits available under the Medicaid regulations.

3. Powers-of-Attorney. If you should become physically or mentally incapacitated, there ought to be someone you trust with clear legal authority to make decisions on your behalf. The person you appoint may be given broad powers to do whatever you could do, or limited powers to perform specific acts, depending on the circumstances. The most simple and inexpensive approach is to appoint someone you trust as your attorney-in-fact by signing a power-of-attorney.

You should have a medical power-of-attorney for health care decision making, and a general power-of-attorney for your business affairs, such as paying your bills, managing your property, and depositing your Social Security and other checks. One has to be mentally competent in order to make a power-of-attorney. Therefore, you should not wait until the illness or injury occurs. If it is too late to make a power-of-attorney, it may be necessary to apply for guardianship. Having a power-of-attorney in place will make it easier for your representative to act quickly on your behalf and avoid the stress, delay, inconvenience and expense of a guardianship proceeding. It is important that these documents be "durable," otherwise they will be ineffective when you are incapacitated.

4. Living Wills/Health Care Powers-of-Attorneys.

A living will, also known in some states as an Advance Medical Directive With Health Care Instructions, is one's declaration to the world not to keep one alive on life-support machines or by receiving nutrition through feeding tubes, in certain limited circumstances. Since State law varies regarding the language that may be used, you should consult with an attorney in your area to ensure that your Living Will complies with the requirements of your State.

In short, the Living Will applies in very limited circumstances, namely when one is terminally ill and death is imminent, or once is in a vegetative or end-stage condition with no reasonable prospects of recovery and unaware of one's surroundings. One may include special individualized health care instructions.

Since the Living Will is very limited in its scope, it is important to appoint someone you trust to make health care decisions for you when you are no longer able to do so. You appoint such a person by appointing a health care agent in an Advance Medical Directive or by granting a durable medical power-of-attorney.

5. Use of Joint Bank Accounts.

Many people add a child, relative or friend to a bank account to enable that person to take over the account and pay the bills if one should become disabled. This is not a wise approach. When you add someone to an account, that person becomes a co-owner, and has the right to withdraw and use all your funds for himself or herself. Upon your death, that person owns everything in the account, regardless of any beneficiary provisions on the account or in your Will. The better approach is to appoint the person you trust as your attorney-in-fact under a power-of-attorney. That way, the person has a fiduciary legal responsibility to manage and use the funds prudently for your benefit.

Appropriate beneficiary designations on bank accounts is an effective way to keep the funds out of your probate estate. However, you need to be careful no to give up control of your funds or expose yourself to unnecessary risk. You also want to make sure the manner in which your account is titled and designated does not undermine your estate planning objective.

6. Mental Incompetence; Incompetency. Mental incompetence relates to one's legal capacity to understand and to make rational decisions. A person who is unable to manage his or her affairs due to frailty, long-term illness, or disability, is not necessarily mentally incompetent. Frequently, such a person is mentally astute, but needs someone to manage his or her business affairs. This issue frequently arises in the context of whether the person is able to sign a Will, a deed, or a Power-of-Attorney.

The most common causes of mental incompetence include Alzheimer's Disease, dementia and strokes. Alzheimer's and dementia are degenerative diseases, and affects people differently. Sometimes a person who is on certain types of medication, or heavily medicated, may appear to be mentally incompetent, but that condition may be temporary. Also, the person may have lucid intervals during which the person is able to understand and make rational decisions.

One is not legally incompetent until a court makes that determination. For family and estate planning purposes, it is important to obtain a professional evaluation of the person's condition before determining that the person is mentally incompetent. If the person lacks the mental capacity to understand and to make rational decisions, one will need to apply for guardianship in order to have full legal authority to make business and health care decisions to act on the person's behalf. However, a guardianship may not be necessary in all circumstances.

7. What is Guardianship? Guardianship refers to the authority granted to a person by the Court to take care of a disabled person's person and/or property. If a family member or someone in need is unable to manage his or her affairs due to frailty, long-term illness, disability or mental incompetency, you can petition the court for guardianship.

A person is deemed to be competent unless a court has determined otherwise. Before making a decision, the court appoints an attorney to represent the interests of the alleged disabled person's assets and income needs to be reported to the court, and there are strict rules governing the management and accounting of the assets of the guardianship estate.

The court may, but is not required to appoint the petitioner as guardian. There is no specific test to be met for a guardianship award. The court takes into account all the facts and circumstances and uses its discretion to make an equitable determination. An experienced attorney can assist you by explaining how a court may view the particular case and what should be done to satisfy the court to increase your chances of being appointed.

A guardianship order can be obtained in a day or two in an emergency situation, otherwise the process can take a month or several months. The cost, delay and administrative inconvenience of a guardianship can be avoided by having a durable general power-of-attorney signed before one becomes incompetent.

Planning and timing is important. Everyone, and senior citizens especially, should meet with an attorney with experience in these matters to review their basis estate planning needs and plan for disability. Having a power-of-attorney in place will make it easier for your representative to act quickly on your behalf and avoid the stress, delay, inconvenience and expense of a guardianship proceeding.

8. Nursing Home Matters. While most people prefer not to enter or place a loved one in a nursing home, these are times when, despite one's best intentions, one has no alternative. Because nursing home care is so expensive, typically between $4,000 and $6,000 a month, it is essential to consider the potential impact of nursing home care on one's finances and to take advantage of whatever planning opportunities may exist. By doing so, you will maximize your options to protect the family assets and ensure that the community spouse is not left destitute.

Nursing homes have tremendous expenses, and their contracts are designed to protect the nursing home as much as possible. Although there are laws that protect nursing home residents and their families from over-bearing contracts and abuse, it is up to you to seek professional guidance and review of the contract before you sign it. You also want to be sure not to assume personal liability for the resident's nursing home expenses. By obtaining professional legal advice before you sign anything, you will allow your attorney to show you how to avail yourself of income and asset protection planning opportunities that may no longer be available after the contract has been signed.

The quality of care your loved one receives at a nursing home depends a great deal on how much time you spend visiting and talking with the caregivers. The less interest you show, the greater the likelihood of neglect.

9. Medicare vs. Medicaid. These are separate public assistance programs.

Medicare is a federal health program for the elderly and the disabled. Medicare provides temporary coverage of hospital, nursing home, home health care, hospice and other skilled care, and general medical insurance. One has to be at least 65 years old to be eligible. Medicare pays for reasonable and necessary medical services. Coverage is for a limited period, and after 20 days of full coverage, the recipient has to co-pay. Anyone who receives Social Security or railroad retirement benefits are entitled to Medicare and hospitalization insurance (Part A), and have the option of enrolling for general medical insurance (Part B). For additional information regarding eligibility, programs, coverage, etc, consult with an attorney with experience in these matters.

Medicaid, also known as Medical Assistance, is a federal program for the poor and the needy, administered by the States, with each State having its own regulations that modify and supplement the federal program. Medical Assistance is a comprehensive medical insurance program that covers long term care, including nursing home and comparable services provided by other facilities. Strict financial and medical eligibility criteria must be met. You apply for Medicaid at the local department of social services in your County. The application must be in writing and a personal interview at the Department of Social Services is required.

All of the applicant's income and resources are carefully considered, including joint accounts, and assets just in the name of one's spouse. If one gives away property, creates a medicaid qualifying trust or make transfers for less than fair value, the applicant will be subject to a penalty period during which the applicant will be ineligible for Medicaid. There are many complicated rules and traps for the unwary.

By consulting with an attorney experienced in elder law issues before a crisis develops, you will: (a) better understand how Medicaid considerations could impact your estate plan, and (b) be better able to make an informed decision and maximize the asset and income protection planning opportunities available to you. Timing is critical, and technical oversights may result in an unexpected and costly loss of eligibility. The benefits of timely and effective planning are well worth the cost of experienced professional guidance.

10. Asset Protection Planning. Asset protection is an important component of most estate planning. Traditional estate planning includes objectives such as: to avoid tax consequences; to protect the assets of minors and persons who are unable to manage money; to protect against those who might abuse one's trust; to establish a plan to preserve one's assets for retirement and for the support of loved ones. This generally is accomplished through wills, powers-of-attorney and trusts.

Asset protection planning in the context of Medicaid eligibility usually involves pre-crisis and in-crisis planning in the context of a medical emergency, or timely planning ahead to maximize opportunities to shelter income and assets for loved ones against the high cost of long-term nursing home care.

In the context of Medicaid eligibility, asset protection planning takes on a special urgency, and requires a different approach. This is because there are significant conflicts between the type of planning, arising from the rules and regulations pertaining to eligibility for Medicaid (medical assistance: long-term care). Given the high cost of nursing home care and the potentially devastating economic impact on the family, careful planning needs to be done and the plan must be implemented in a timely manner with care not to violate any of the myriad of medicaid rules and regulations that could result in ineligibility for Medicaid.

Although there are many complex rules and exceptions, basically, the applicant has to have spent down virtually all of his or her resources to be financially eligible for Medicaid. There are special rules and regulations that apply to such spend-down. Also, there are special provisions applying to spousal impoverishment, discussed below. One cannot necessarily avoid inclusion of ones assets by giving them away, transferring one's home or establishing joint accounts. Special planning techniques are employed in appropriate cases to maximize asset protection opportunities. Because of the complicated technical rules, a thorough knowledge of the rules and regulations is essential. An experienced elder law attorney will be able to explain the process to you in simple terms, identify planning opportunities, help you protect your assets and income, and reduce the stress caused by fear of impoverishment.

11. Spousal Impoverishment. Spousal impoverishment refers to the concern that the community spouse will be left destitute because of the high cost of nursing home care. Most states have special rules intended to protect the community spouse by allowing the community spouse to retain a certain amount of the families resources and income to meet her monthly support and maintenance needs. To maximize the benefits that can be made available to the community spouse and maintenance needs. To maximize the benefits that can be made available to the community spouse, one should consult with an experienced elder law attorney as soon as the possibility of nursing home care arises. If one waits until the last minute, one may have less options.

Since the State intends to provide Medicaid only when you have spent down almost everything you own, and the local department of social services' role is to verify that you have done so, you should seek independent legal advice and not depend on the advice or determination of your local department of social services, social workers or nursing home admissions directors.

12. How to Choose an Attorney.

Estate Planning requires an understanding of how various areas of law may impact one's estate, such as estate law, probate law, tax law, marital law, real estate law, and Medicaid law, among others. If you want to ensure that your needs and concerns are effectively considered and your rights and options clearly explained to you, it makes sense to consult with an attorney with experience in elder law matters. While most attorneys can prepare simple deeds, wills and powers-of-attorney, you need more than a product. You need to a thorough professional review of your resources, needs and objectives by someone who understands, cares and will give you the peace of mind you're looking for. Experience and excellence does cost a little more, but it is well worth it. Can you afford not to do it right?

Conclusion

Consulting with an experienced estate planning professional is the first step to determining what really needs to be done. Then, you will be able to make an informed decision and enjoy the benefit of being guided by someone who understands your needs and concerns. Ignorance may be bliss in certain instances, but in the case of estate planning, you may never know just how much the failure to act actually costs you.

A caring estate planning professional will not rush you into making a decision or pressure you to do something you are not comfortable with. Procrastination is your greatest enemy. Act now by scheduling a comprehensive estate planning meeting. Once you understand what needs to be done, you can proceed with Peace of Mind of knowing that your concerns will be addressed.

Experienced; Contact Information

Rob Goldman Legal Solutions is dedicated to helping individuals and business solve life's challenges by providing clear explanations and practical solutions at an affordable price. With over 15 years of experience, Rob Goldman has the knowledge and practical experience to guide you in the most important decision-making process. A member of the National Academy of Elder Law Attorneys ("NAELA"), Rob Goldman is committed to providing seniors and families with Peace of Mind.

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