Don't Make These 7 Medicaid, Long Term Care Planning Mistakes

Don’t Make these 7 Medicaid/Long-Term Care Planning Mistakes

 Proper planning is required to obtain Medicaid assistance. When people encounter chronic illnesses and face depleting financial resources, consulting with a certified elder law attorney will help you avoid long term care planning and asset preservation pitfalls:

1. Transferring the house: People who transfer their home to their children will find themselves ineligible for Medicaid. The Medicaid agency can look at your financial records and gifts for the prior 5 years. The house does not count as a resource if it is valued at under $536,000.00.

2. Making gifts: Gifting will delay you receiving Medicaid. If you make gifts after you become ill you are going to have a very difficult time convincing the Medicaid agency that you did not do it just to become eligible for Medicaid.

3. Buying an annuity: An annuity is not the right answer for everyone especially single people or widows/widowers.. Since 2008 federal law requires the annuity to name the state Medicaid agency as beneficiary (unless you have a spouse or disabled child). This means any remaining value of the annuity will be paid to the Medicaid agency, not to your family.

4. Using a family member's social security number: If you have a joint account with a family member and only use that family member's social security number, that will not avoid the account being a counted resource by Medicaid. As a joint owner either half or all of the account will be treated as yours (if the other joint owner did not contribute anything to the account you may be treated as owning 100%).

5. Filing an application when you have excess resources: Your application will be denied if you have more than $2,000.00 for single people or more than $115,920.00 if married in countable resources. Learn how special needs trusts, pooled trusts, rental property, spousal refusal and other planning options can help you qualify and preserve assets.

6. Filing an application when you have too much income: Your application will be denied if your gross monthly income in Florida exceeds $2,163.00 (includes social security retirement, pensions, IRA distributions). You need an attorney to draft a qualified income trust before you apply otherwise it will delay approval and you will have to pay privately for your care.

7. Filing an application without legal representation: Don't file a Medicaid application without first having your situation reviewed by a board certified elder law attorney. I can spot potential problems and tell you how to avoid them which can save you time and money and give you peace of mind.

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Tipe for Choosing a Nursing Home for Your Loved One

Tips for Choosing a Nursing Home for Your Loved One

While no one ever envisions themselves moving to a nursing home, sometimes a change in medical condition and finances may lead to that as an option.  Whether you are shopping for a car or choosing a nursing home, you want to do your homework.  If you do not know anything about nursing homes it can be a challenge to know what questions to ask or, research. 
When looking at nursing homes here are some tips and suggestions for you to use before you sign an admissions agreement:

1.  Visiting Potential Nursing Homes: While you may want to go during normal business hours for a tour consider going back a second time later during the afternoon or early evening. Pay close attention to the number of staff compared to the number of residents (is the facility properly staffed).  Watch to see how long it takes a staff member to respond to a resident ringing the call bell.  If you see a resident's family member visiting, ask them if they would be willing to answer some questions about their loved one's experience and the quality of services provided.

2.  Avoid Financially Guaranteeing Payment: If your loved one is unable to sign the admissions agreement and you are signing beware of language that may make your personally liable for payment. Many nursing homes still use language such as 'responsible party.' If you see those words cross them out before you sign.  It is a violation of federal law for a nursing home to condition admitting a person on someone else guarantying payment.  Before signing an admissions agreement have it reviewed by an attorney for this and other reasons.

3.  Review the Facility's Ratings: You can read inspection reports that are posted by the Agency for Healthcare Administration. The reports will tell you whether a facility was cited, for what and if it was corrected, and other concerns.  Click here to run a search and compare inspection ratings.  The Center for Medicare & Medicaid Services (CMS) has also developed a rating system for nursing homes. You can access it by clicking here. CMS also has helpful tips and a checklist you can use.
Be an informed consumer so that you can make the best decision for your loved one.

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Social Security and Marriage Equality Act of 2014

                                   The Social Security and Marriage Equality Act of 2014

On May 8, 2014, Senator Patty Murray from Washington sponsored the Social Security and Marriage Equality Act of 2014 (SAME).  The objective of the bill (s. 2305) is to amend the Social Security Act so that same-sex married couples will be entitled to social security benefits based on place of celebration and not place of residence at the time the application for benefits is filed.  If passed, its proposed effective date is June 26, 2013, the same date the United States Supreme Court issued the Windsor decision finding section 3 of DOMA unconstitutional.

The Social Security Administration (SSA) is currently accepting applications for benefits from same-sex married couples.  However, if the couple is residing in a non-recognition state the application will be held and not processed.  This is because SSA law is still based on the law where the applicant resides at the time the application is filed.  So in a state like Florida that does not recognize same-sex marriage, regardless of where the marriage was performed, the social security application will not be processed. This is creating an inconsistent and unequal result for the LGBT community.  Change is necessary.

There is a similar bill (H.R. 4664) pending which you can read by clicking here.  You can track the progress of the bills at Congress' website 'GovTrack.us' .   I encourage you to read my blogs regularly to stay informed on the progress of this bill and many other important issues!

On July 17^th a Florida Keys (Monroe County) Judge Overturned the Same Sex Marriage Ban in Florida.

We want to be your trusted advisor through life. Please visit my website and sign up for our complimentary e-newsletter, check our calendar for events you may want to attend, and join me for my monthly Tele-seminar held the 4th Thursday of each month at 1pm.

Florida: The Perfect Home with the Perfect Partner

                         FLORIDA: THE PERFECT HOME WITH THE PERFECT PARTNER

     Many people are drawn to live and work in Florida because of its beautiful weather.  Other people are drawn to Florida because it has no state income tax.  If you are a married same-sex couple (SSC) or, have a domestic partnership or civil union there are several important real estate ownership issues you should consider before buying Florida real estate.

 

     Florida is currently a non-recognition state despite last year's U.S. Supreme Court decision in Windsor that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  Even if a SSC is married in a recognition state and then resides in Florida they will not receive all of the state benefits as a heterosexual married couple who buys real estate.  While many people are confident that either the state or federal courts will strike down the Florida DOMA statute here is what you need to know now to properly plan ahead:

 

1. Avoiding a Large Real Estate Tax Bill: Without proper planning, the surviving same-sex partner will get hit with a large real estate tax bill when their spouse or, partner dies.  One way to avoid this is to title the ownership in both spouses/partners names as "joint tenants with rights of survivorship (JTWROS)." One benefit of doing this will be to avoid the court process called probate when one co-owner dies.
2. Homestead Exemption: If the property is titled as JTWROS be sure that both of you file an application for Florida Homestead Tax Exemption. The benefit is that the surviving owner will receive the Save Our Homes protection click here to learn more and avoid a tax hike when the co-owner dies. 
3. Strengthen Your Legal Plan: Even if your home is titled jointly with your spouse or partner it is still important that you have a well-drafted Durable Power of Attorney that gives your spouse or partner legal permission to make real estate decisions for you if you become physically or cognitively incapacitated.  Being a joint owner (regardless of sexual orientation) does not give you permission to sign a deed to sell the property, or sign a mortgage or note to obtain a loan or refinance a loan on behalf of your incapacitated loved one.  Be sure to include this document when creating a life care plan.

There are many different options when it comes to ownership of Florida real estate.  Each type of ownership has different benefits and limitations.  Be sure to receive legal advice that is tailored to you and your spouse/partner's goals.

VA Pension Should Not Impede Medicaid Eligibility

Veteran's Aid & Attendance Income Should Not Impede Medicaid Eligibility

 If you, your spouse or your parent have recently qualified for a VA Improved Pension (VAIP) read about pension benefits and are also applying for or receiving Medicaid assistance you need to know your rights. 

A portion of the benefit may represent Aid & Attendance (A&A) which under the federal and Florida Medicaid rules is not countable income.  Veterans or their spouses who need the aid and assistance of another individual and who have limited assets and limited income (which can be reduced by showing payment of unreimbursable medical expenses) may be eligible to receive benefits.  'Unreimbursable medical expenses' (UMEs) are not paid for by insurance.  They can include:

1.    co-pays

2.    deductibles

3.     rent at an assisted living facility

4.    the cost of a home health aide

5.    adult garments

6.    over-the-counter (non-prescriptive) supplies or vitamins

7.    therapies (i.e. acupuncture); and much more. 

 Why is this so important? Without proper documentation from the Veteran's Administration (VA) learn more, the Department of Children & Families (DCF) may improperly tell you that you have too much income to qualify for Medicaid unless you agree to create a qualified income trust (QIT) and transfer the pension into the trust.  Do not assume that DCF is correct - it can cost you time, money and loss of your Medicaid benefits and your room at the assisted living facility.

Florida is one of a few states that impose a monthly gross income limit in order to qualify for Medicaid assistance.  Currently, the monthly gross income limit is $2,163.00 for an individual. Click here to learn more 'Gross income' includes sources such as: Social Security retirement; Social Security Disability Income; I.R.A. distribution; 401(k) distribution; pensions from employment.  If an applicant's monthly gross income exceeds the limit, that person will not qualify for Medicaid unless an attorney prepares a QIT and it is properly funded each month (with the amount of income exceeding the state limit).  There is a fee for an attorney to prepare the QIT.  Why spend money if you don't have to? 

It is important that you advocate for having the VA issue a letter stating what portion of the check represents reimbursement for medical expenses.  The portion of the payment that represents unreimbursed medical expenses (UME) is not countable income. That letter must then be submitted to DCF as proof that your income or your loved one's income is below the Medicaid monthly income limit.  If you do not obtain a letter detailing the breakdown between the different VA programs then DCF will assume that the full amount of the check is countable income and decide that you do not qualify for Medicaid.

 If you find yourself running into a road block call our firm to assist you.  We will be happy to advocate on your behalf with the VA and DCF. 

We want to be your trusted advisor through life.

PLANNING TIPS FROM THE ALZHEIMER'S CONFERENCE

                                        Planning Tips from the Alzheimer's Conference

I had the pleasure of sitting on a panel at The Annual Southeast Florida Alzheimer's Education Conference on May 15, 2014 at Florida International University. Click here for more information about the SE Florida Alzheimer's Association.  The panel included David Treece, Financial Advisor http://www.davidtreece.com/, Juan Ceballos an insurance counselor helping Florida consumers with the new Medicaid Managed Care Program, and Dora Gonzalez with the Dade County Alliance for Aging, Inc. http://www.allianceforaging.org/.  The panel provided information and tips on legal and financial planning and navigating the new Florida Medicaid system.

 

      Here are the legal planning tips I shared with the conference attendees: 

1. Take Responsibility: When diagnosed with a cognitive impairment, or even a medical condition, it can feel as if your life is out of your control.  There are things you can control and choices you can make that determine how you experience this change in your life.  If you have existing legal documents have them reviewed right away to make sure they are up-to-date and continue to meet your goals.  If you do not have any legal documents schedule a consultation with a qualified elder law attorney and create a legal plan to manage your financial and medical affairs.  If you are a family member or, a caregiver and you think that the patient lacks capacity take the initiative to obtain legal advice about becoming a guardian.
2. Do Not Delay:   Delay only results in fewer planning options and possibly more expense.  No one has a crystal ball where we can predict how long the 'window of opportunity' will remain open when a person has a cognitive impairment.  A person must have a certain level of understanding and awareness (competency) in order to sign legal documents.  It has nothing to do with whether the person can hold a pen and sign their name. This is why planning at the earliest possible time is recommended.
3. Be An Informed Consumer:  Beware non-lawyers that hold themselves out to the public as being able to counsel you about qualifying for government benefits such as Medicaid and Veteran Benefits. Scammers can be very convincing in their appearance and advertising by using pictures such as the American flag or the American eagle which give the appearance that they are trustworthy or somehow connected to a government agency.  Do not entrust your finances or your decisions to them.  The Veterans Administration requires individuals to be 'accredited' in order to counsel veterans and assist them in filing a claim.   VA Accreditation  No one including accredited individuals are permitted to charge a fee for assisting a veteran in applying for benefits; a fee may only be charged for counseling and appealing once the VA has issued a notice denying the application.
4. Social Security Compassionate Allowances: If a person under age 65 finds themselves unable to work due to a disability consider applying for Social Security Disability Insurance (SSDI).   Click here.  SSA has developed a list of illnesses called "Compassionate Allowances" and if an applicant has a diagnosis on the list the application is processed immediately.  Alzheimer's is now a condition on this list.Click here for a list of compassionate allowance conditions.
5. Obtain advice tailored to your needs:  Avoid seeking advice from neighbors or friends.  Do not look to cut corners by going on the Internet or, to a stationary store to create your legal documents.  Invest the time and money in having a qualified elder law attorney create a plan to help you achieve your goals.
   
   We would like to be your trusted advisor through life and guide you through the process of creating a plan to help make the aging process easier including should you or your loved one have a chronic illness.

 

 

 

DIY Legal Planning? Don't Try This at Home

                   D.I.Y.?  Don't Try This Yourself At Home

The death of a loved one is a life-changing event filled with emotion and can be traumatic.  Is there anything that can help ease the pain and promote the healing process? Absolutely - proper advance legal planning can make all the difference.

Imagine that someone close to you decided to write their own Last Will & Testament rather than seek the advice of a skilled and experience estate planning attorney.  The old adage "penny-wise and pound-foolish" would apply.  Relying on a stationary store form, Legal Zoom or, an internet site frequently results in creating a problem for the beneficiaries.

Look no further than your backyard.  A Florida woman used an E-Z Legal Form to create a Last Will & Testament.  Ms. Aldrich was very specific in identifying the type of assets (i.e. her house, car, life insurance, bank accounts) she wanted distributed to her sister or, if her sister predeceased her then to her brother.  However, her Last Will & Testament failed to contain a paragraph (known as a residuary clause) directing the disposition of all her other property.  Before Ms. Aldrich died, her sister died and left Ms. Aldrich $122,000.00 in cash and land.  Ms. Aldrich opened a new bank account and deposited the cash into it.  Ms. Aldrich did not revise her Will to include the property she inherited from her sister. Sometime during the last year of her life she wrote a hand-written note stating that all her worldly possessions should pass to her brother. We can see that Ms. Aldrich recognized the need to take action to devise (bequeath) the cash and land. This note did not meet the legal standards to be recognized as a 'codicil' to her Will.

The family became divided. Her brother believed that he should inherit all Ms. Aldrich's assets. Ms. Aldirch's nieces (children of a deceased brother) argued that they should receive a portion of the cash and land. The case went to the Florida Supreme Court read the case who decided that the property Ms. Aldrich inherited from her sister was to be distributed based on the Florida law of intestacy (dying without a Will).    That property would be distributed to her heirs who included both her living brother and nieces. If Ms. Aldrich had taken the time to consult with a lawyer after she inherited from her sister's estate, a proper Last Will & Testament could have been prepared and signed.  The cost of the 'form' Will may have been less expensive than a Will prepared by a qualified attorney, but the long run it cost more due to the legal fees incurred in the litigation as well as the dissension it created in the extended family. This is a real life danger of using a pre-printed form with no legal advice. It is not tailored to each person's unique situation.

One very important lesson to learn from Ms. Aldrich is to seek the advice of a skilled attorney and update your estate plan when there are major life changes such as:

1. a marriage

2. a divorce

3. a birth

4. a death

5. receipt of an inheritance

6. receipt of a lawsuit settlement

Our firm counsels people of all ages through the aging process. Young people over age 18 are legally adults and should have incapacity and estate planning documents so they and their families may have peace of mind.

We want to be your Trusted Advisor Through Life.