Medicaid for Your Spouse Issues and Traps

Medicaid for Your Spouse Issues and Traps

You pledged “for better or worse”, “for richer or poorer”, and “in sickness and in health”. What do you do now that things are worse, your spouse is so sick he needs round the clock care that you cannot provide at home and you are facing the prospect of becoming poorer and poorer?

As families seek Medicaid to help with the cost of long term care, they should be aware of some commonly overlooked obstacles.

Place your loved one in a facility that accepts Medicaid

Independent living and many assisted living facilities do not accept Medicaid especially in their “Memory Care” sections. Some facilities will accept Medicaid, but only after the patient has paid privately for some period of time.

It is especially important to know the facility accepts Medicaid in the case of married couples. The assets that the healthy spouse is able to keep are based on the total assets that the couple has on the date of institutionalization (the “Snapshot Date”). Paying for care in a non-qualified facility may reduce the amount of funds that the healthy spouse eventually gets to keep.

Title Assets Appropriately

To qualify for Medicaid, the ill spouse can have only $2,000 in countable assets. The healthy spouse (the spouse living at home) can keep much more. In addition to the “exempt” assets (the house, one car, household goods, funeral plots, and irrevocable funeral plans), the healthy spouse can keep half of the couple’s countable assets with a minimum of ($24,720 in 2018) and a maximum of ($123,600 in 2018). It is important to retitle assets properly to maintain Medicaid eligibility and to avoid Medicaid Recovery upon the death of the healthy spouse if possible.

Assume that the married couple has a home – owned jointly with right of survivorship, joint checking, savings and investment accounts as well as IRA’s and life insurance policies naming each other as beneficiaries. The healthy spouse, using a power of attorney or guardianship if necessary, should retitle the couples assets as follows:

  • Keep the joint checking account with no more than the ill spouse’s $2,000. Deposit the ill spouse’s Social Security and other income to that account.
  • Open a new account in the healthy spouse’s name alone “payable on death” to children. Have the healthy spouse’s income deposited into the new account. Transfer excess from the joint account to this new account each month to keep the joint account at $2,000 or below. Pay the household bills from the new account.
  • Title the savings account and investment accounts in the healthy spouse’s name alone “payable on death” to the children.
  • Name the children as beneficiaries on the healthy spouse’s IRA and life insurance policy.
  • Cash out or change ownership of the ill spouse’s life insurance.
  • Cash out or annuitize the ill spouse’s IRA.
  • Title any vehicles in the name of the healthy spouse alone “transfer on death” to another family member.
  • Title the house in the healthy spouse’s name alone.
  • The healthy spouse should change her will to name children as beneficiaries.

Set up a Qualifying Income Trust for High Income Individuals

Once on Medicaid, the ill spouse’s monthly income will be used for his personal spending ($50 per month), a monthly income allowance (MIA) for the spouse at home to help meet her needs and a patient liability payment to the facility. However, if the ill spouse’s gross income is above the Special Income Limit ($2,250 in 2018) he will not qualify for Medicaid regardless of his need.

High income individuals must establish a special “Qualified Income Trust” (QIT) to filter the excess income in order to qualify. This QIT must be established and funded in the month the Medicaid Application is made. If it is not, the application will be denied. This problem is compounded by the fact that a Medicaid application can take months to process. If the QIT is not in place during those months, Medicaid will not pay.

Seeking and paying for long term care for your spouse is complex and stressful. A qualified Elder Law Attorney can help you understand the process and make a plan to protect assets and secure the best care possible for your loved one.

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Is Your Power of Attorney Right For You?

Is Your Power of Attorney Right For You?

In my opinion, a power of attorney (POA) is a more important document than a will. While a will may control what happens to my family and my possessions when I die; a POA controls what happens to ME while I’m still alive. Because the POA is needed most when I am incapacitated, it’s good to get things right.

Do I have the right POA?

Ohio has two types of POA. The healthcare POA directs who will make your medical decisions when you are unable. The financial POA gives your agent the authority to handle certain financial matters as described in the document. Both documents are important and one cannot substitute for the other.

Have I named the right agents?

The person you choose as your agent will be making important life decisions for you. Consider a person’s character and abilities to handle the duties assigned rather than their proximity to you or birth order. Remember, too, to name one or more backup agents in case your chosen agent is unable to help you when needed.

Did I give my agent the right amount of power?

Your agent can only do those acts specifically described in the document. Thus, if the POA does not say that your agent can open accounts in your name or establish a trust for you he cannot. Similarly, if the POA says that the agent can change the beneficiaries on your life insurance or transfer your house to himself he can.

Is the POA executed in the right way?

A healthcare POA requires a notary or two witnesses to observe and verify the signature. The witnesses cannot be the signer’s physician, medical caregiver or the named agent. Financial POA’s must be notarized if the agents are to be able to deal with real estate in Ohio.

Do the right people have the document?

A POA does no good unless it is used. Be sure that your agent and backup agents know they have been named and what is expected of them. Be sure that they have or know how to locate the document, itself. Although Ohio laws may recognize a photocopy, many financial institutions will demand to see an original before allowing the agent to act.

Powers of Attorney are important to your overall estate plan and should be carefully drafted to fully meet your needs and goals. Consult with your attorney to be sure that your legal documents are right for you!

Steps to Take In Fighting Financial Neglect & Exploitation

Steps to Take In Fighting Financial Neglect & Exploitation

Physical and cognitive impairments of aging can rob people of the ability to manage their finances. It can also make them more susceptible to being robbed by others. Many instances of financial neglect and exploitation go unreported because of shame, guilt, fear that the victim may lose independence or concern that the perpetrator (who may be a close friend or family member) will retaliate.

You may notice signs of financial neglect or exploitation such as confusion or fearfulness, unpaid bills, lack of medical care, unnecessary services, goods or subscriptions, missing items or cash, large or frequent withdrawals from bank accounts, or suspicious changes in property titles or legal documents. Stepping in to help can be problematic. Overstepping can cause resentment and distrust, but stepping back could mean financial ruin for the victim. So what steps should you take?

  1. Stepping Forward Without Stepping on Toes

Assuming that the victim recognizes that there is a problem, there are a number of ways you can help him to help himself.

  • Simplify – Reducing the number of transactions can make things much more manageable. Consolidate accounts, set up automatic payments of bills, limit purchases to one credit card.
  • Reduce – Get off of junk mail lists, sign up for the do not call registry, clear out and shred extraneous paperwork.
  • Organize – Sort and store important legal and financial papers and tax records, itemize and safeguard valuables and collectibles, set up a system to collect and review bills and monthly statements.
  • Monitor – Request and review credit reports annually, check references of caregivers and other service providers, work with an accountant, attorney and financial advisor, etc.
  1. Stepping It Up to Keep A Step Ahead

If your loved one’s impairments are too severe, you may need to step forward to handle things yourself. If you are named agent under a durable financial power of attorney, you are able to handle any matters listed in the document. With the “immediate” POA, either you or the principal can act. If yours is a “springing” POA, you cannot act until a certain event – usually that a doctor has certified that the principal is too ill to handle things himself.

You must present your POA to any bank or other financial institution that you deal with, have it registered or recorded and your signature accepted. Whenever you sign, be sure to write the principal’s name, sign your name and indicate that you are acting as agent under POA.

If property is in a trust, the trustee manages the assets rather than the agent under POA. Co-Trustees can both manage assets. A successor trustee can take over when the initial trustee resigns or becomes incapacitated.

  1. Stepping In

Since the POA is given by the principal, he can also take it away. And he can continue to handle his own finances as well. If your loved one’s judgement is severely impaired and he is at risk of self-neglect or exploitation, it may be necessary to bring a guardianship action through the Probate Court. This is an adversarial action in which you would need to prove to the court that the principal is incompetent and that you are an appropriate person to manage his affairs. You would need to post a bond insuring your good management and account to the court annually for your transactions. In bringing a guardianship action, you will want to have an attorney with you every step of the way.

To manage social security or VA income, you must apply directly to the agency to become a payee. Keep careful records as annual accounting’s will be required.

  1. Stepping Aside

If you find that your loved one is in severe danger or needs more help than you are able to give, you should report the neglect or exploitation to your county Adult Protective Services (APS). Anyone can make a confidential report and the APS will investigate and seek to help. Many professionals who work with seniors are “Mandatory Reporters”. Mandatory Reporters are required to report suspected abuse to the APS.

Mandatory Reporters Include:

Psychologists                                                                 Social Workers
Nurses                                                                            Counsellors
Peace Officers                                                               Clergymen
Coroners
Marriage & Family Therapists
Attorneys                                                                         Employees of:
Physicians                                                                         Ambulatory Health Facilities Osteopaths                                                                        Home Health Agencies
Podiatrists                                                                         Residential Facilities
Chiropractors                                                                   Nursing Homes
Dentists                                                                              Hospitals

As of September 29, 2018, more professionals will be added as mandatory reporters. These are marked with a star below:

Firefighters                                                                     Real Estate Brokers
Ambulance Drivers                                                            or Salesmen
Notary Public                                                                 Financial Planners
Paramedics                                                                     Investment Advisors
Pharmacists                                                                    CPA’s
Dialysis Technicians

Employees of:
Mental Health Agencies
Banks or Credit Unions

Any person who has reasonable cause to suspect elder abuse, financial or otherwise, may make a confidential report, if the report is made in good faith, the reporter will be immune from criminal or civil liability and protected from employment discrimination or retaliation.

TO REPORT ELDER ABUSE IN OHIO CONTACT YOUR COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES

OR CALL 1-855-OHIO-APS (1-855-644-6277) TOLL-FREE 24/7

 

 

Many Ways to Transfer Property at Death

Many Ways to Transfer Property at Death

They say “Where there’s a will, there’s a way”, but there are a number of ways that property can be passed at death without a will. The probate court provides a process to pass on inheritance to the next of kin of the decedent when he dies “intestate” (without a will). Property can also be passed without probate court involvement if it is held “jointly with right of survivorship” (JWROS), with a designated beneficiary or in a trust.  Ohio law even provides that title to vehicles may pass directly to a surviving spouse without probate.

The first step in sorting out a decedent’s estate is to determine what assets he owned and how they are titled. Heirs or beneficiaries can then follow the procedures required to collect the assets.

Intestate Property

The probate court oversees the process of transferring property held in a decedent’s name alone. Without a will, anyone may apply to administer the estate. The closest relatives living in Ohio have first priority to be the administrator and must be notified or sign off for someone else to administer. The administrator is generally required to post a bond (an insurance policy that he will handle his duties properly) in order to protect all the heirs. Because there is no will to grant powers, the administrator will need to get probate court authority to sell or transfer assets. Once the bills have been paid, the administrator will distribute the remaining assets to the decedent’s next of kin in accordance with the Ohio Statute. The probate process can be complicated so it is best to have an attorney assist with the administration.

Joint with Right of Survivorship

Virtually any type of property can be held jointly with another person; real estate, a bank account, even a vehicle. Just because something is held jointly doesn’t mean the survivor gets to keep the asset when an owner dies, but this is often the case. Most times, a certified death certificate and an affidavit outlining the facts is all that is needed to collect survivorship property.

Designated Beneficiaries

A person can name beneficiaries who are to receive an insurance policy, IRA, annuity, bank account, stock account, house, car or other property when the title owner dies. The designation of a beneficiary is given directly to the insurance company, bank, brokerage, county recorder or whoever keeps the record of ownership. To claim the property, the beneficiary must contact that company or agency to make the claim. Claim forms and procedures vary greatly. Making a claim may be as simple as presenting a death certificate or may involve completing multiple page claim forms that require a medallion guarantee signature from a bank or brokerage. Each beneficiary may be required to make decisions about cashing or continuing the account and withholding for taxes.

In the case of an IRA, for example, a spouse may elect to roll the IRA into her own name, name her own beneficiaries, and wait until she needs to make required minimum distributions. If multiple children inherit an IRA, they can divide it into separate inherited IRA’s and each decide whether to cash out immediately or “stretch” it out for years taking only the required minimum distributions. Each holder of an inherited IRA or inherited Roth IRA must begin taking required minimum distributions immediately and should name beneficiaries for their own account.

Trust Assets

Assets titled to a trust are administered by the surviving or successor trustee as directed by the terms of the trust. If all of the creators of the trust have died and there is no one surviving who can revoke the trust, its’ terms become irrevocable and a federal tax identification number must be assigned to the assets. The Trustee must follow proper protocols for notifying beneficiaries, managing the assets and handling the taxes. A qualified attorney and accountant may be needed to advise the Trustee.

Vehicle Transfer to Spouse

Ohio law allows a surviving spouse to transfer an unlimited number of vehicles to herself so long as the total value is less than $65,000, and so long as there is no one else who owns the vehicle jointly with right of survivorship, is designated a TOD beneficiary or is named in the will to receive the vehicle. To transfer, the spouse must take her ID, the vehicle title or registration showing VIN number, and a certified copy of the death certificate to the county BMV title office, sign an affidavit and pay a small transfer fee.

Handling the transfer of a decedent’s property can be a complicated affair under the best of circumstances. The process can take weeks or even months. Dealing with the myriad of details while grieving the loss of a loved one can seem overwhelming. An experienced attorney can help to organize, understand and control the process.

Caring for Pets

 Caring for Pets

For many people, pets are a member of the family. While one hopes children (and spouses) will eventually be able to care for themselves, pets require constant care their entire lives. If your pet should outlive you, who would take care of your beloved four legged friend?

Private Agreement

While many people feel uncomfortable talking about death, it is important to have these tough conversations beforehand. Many times the family can be thrown into crisis upon a hospital admission or a death and pets can be forgotten. Just having the conversation beforehand and having a plan in place can prevent your pets from being forgotten at home for days before someone remembers them.  Make sure someone close to you has a spare key and would know to go check on the pets if you were in the hospital or passed away unexpectedly.

Some may assume they don’t need to do any legal planning, because their family knows what their wishes are regarding their pets. While it is good to have a plan, private agreements alone often fall through. What happens if you agree your niece will take your dog, but at the time of your passing she lives in a no-pets-allowed apartment with a new baby and an allergic husband? What happens if both your sons think they are getting custody of your Siamese cat? A private agreement is not legally enforceable, and can leave your pets futures uncertain.

Wills

A will can have provisions that provide for what happens to your pets. A will can name an individual to inherit the pet, but just because you name that person, does not mean they are under any legal obligation to take the pet if they don’t want to. It may be better to allow the executor to decide who gets the pets and include stipulations that you would like your executor to consider. Do you want your pets to be kept together? Stay in the family? Have a back yard? You can add this all to a will but if terms are uncertain, the court may step in to make decisions.

Many people also include a monetary bequest to help entice a person to care for their pets and to help with costs. Keep in mind that the will only controls the initial distribution and does not monitor the long term care of your animals or the use of the money. If you leave the dog and ten-thousand dollars to your brother, he may take the dog and cash and then have the animal put down while he gambles in Vegas.

Wills can only do so much. In order to come into play, a will has to be probated, which it may not be if the rest of your estate passes outside of probate. There is also typically a waiting period while a will is being filed with the court and probated. Who will look after your pet during this period of time?

Pet Trusts

A pet trust can provide lasting protection for your pet. There are many benefits to a pet trust. First, you can name a trustee to control the money to be spent for your pet. This person does not have to be the same person who is caring for your pet. Appointing a different person to each role creates a system of checks and balances and further protects the pets from financial exploitation. For example if your sister is very bad with money but very good with animals, she can care for your pet and have your brother manage the money and pay her for the dog’s vet bills, food, and other costs.

You can also use the trust to instruct on how you would like your pet to be cared for. These instructions can be as detailed as possible to allow your pet to continue living in the manor they are accustomed. It can also ease the transition for new caregivers by knowing what routines your pet is used to. A trust allows for continued monitoring of the pet and the finances and can be used to shield against abuses. You can include requirements such as yearly vet visits, or backup trustees or guardians if the initial choice is unable to continue to care for your pet. Once your pet passes away you can leave any remaining money in the trust to your heirs or to charities.

Conclusion

Estate planning is the last act of love you can do for your family for when you’re gone. It is important to remember and plan for all members of your family including your four-legged friends. If you would like more information about how to protect your furry loved ones, call Williger Legal Group (330) 686-7777.

Caretaker Child

Caretaker Child

For many seniors, owning a home is synonymous with the American Dream. The goal is to stay in the family home, and then pass it on to the next generation. The nightmare that plagues many older Americans is being forced to sell their homes to pay the expenses of long term care. For this reason, many seniors want to transfer their homes to their child or children especially if the child resides with them.

In most instances, transferring a home to a child or other family member may cause a penalty period in which Medicaid is not available to pay for care. In certain circumstances, the transfer can be considered exempt and the penalty can be avoided. One such exempt transfer is to a “Caretaker Child”.

The “Caretaker Child” is one who resides in the parent’s home providing care for at least two years prior to the parent moving into a long term care facility such as a nursing home or applying for assistance from a Home and Community Based Services (HCBS) waiver program, such as PASSPORT. Simply residing in the house is not enough. The Caretaker Child must provide needed care which otherwise would have required the parent to go to a nursing home or apply for a HCBS Medicaid program.

The Medicaid rules are quite specific as to what a Caretaker Child must do in order for the exemption to apply.

  • The Caretaker must be a natural or adopted child.
  • The child must actually reside in the parents’ home with them.
  • The parent must require help with activities of daily living or instrumental activities of daily living (See lists) to such an extent that he or she would require nursing home care if the child were not there to help
  • The child must continuously live in the home providing the care for at least two years immediately prior to the parent going into a nursing home or applying for HCBS Medicaid help.
  • The child must continue to live in the home until the transfer is made, even if the parent is placed in the nursing home or receiving HCBS Medicaid.

To prove herself, the Caretaker Child, must provide Medicaid with documentation that she meets the definition. For the transfer of the home to be exempt from penalty, Medicaid will require written proof from the parent’s doctor and the child providing care. Medicaid will scrutinize this documentation to determine if the exemption applies. It is the family’s responsibility to keep careful records as they go.

If you hope to protect the family home via a Caretaker Child exempt transfer, it is important to begin documenting your status as early as possible.

  • Be sure that you have a proper power of attorney in place in case you become too ill to sign the deed when the time comes
  • Talk to your doctor about the kind of care required and your child’s role in providing that care.
  • List the activities and actions that your child performs to keep you safe at home.
  • Your child should keep a journal or calendar of your activities, doctor’s visits, hospital stays and changes in your condition.
  • Keep a checklist of care and services provided on a regular basis.

Contemporaneous records can help you remember all your child has done and to assemble necessary proof when needed. That documentation must show the date that the child moved into the home, the parent’s condition that required the care to stay out of the nursing home, the extent and type of care that was provided, the amount of time the child devoted to the care, and other activities such as school and work, that the child was involved in during that period.

The Caretaker Child exclusion cannot be used for early planning. It is a crisis exemption as the status of Caretaker Child can only be determined at the time the parent enters the nursing home or applies for a HCBS Waiver Program. If the child moves out before the transfer is made, the exemption is lost.

There may be adverse consequences of transferring the home that should be considered.

  • The child may not qualify for certain real estate tax exemptions that the parent had
  • Transferring to the Caretaker Child may defeat the parent’s intention to divide his property equally among all of his children.
  • Transferring the house during the parent’s lifetime may create a capital gains tax problem when the child sells the house.
    • For example, if the parent purchased the house in 1950 for $30,000 and the house is now worth $230,000, the capital gain would be $200,000. A lifetime transfer gives the child the same basis ($30,000) as the parent. If the child received the house at the parents death, the child would get a “step up” in the basis to $230,000 and there would be no capital gains when the house is sold.

The laws surrounding Medicaid and the transfer of the house are complicated and constantly changing. Seek the help of a qualified elder law and estate planning attorney who can analyze your unique situation and create a plan most appropriate for you.

Activities of Daily Living (ADL)

            ADL’s are self-care activities that everyone must perform to lead a normal, independent life.

Eating: Do you have the physical ability to swallow or chew food? Do you have trouble moving food from the plate to the mouth?

Bathing & Hygiene: Can you bathe yourself and brush your own teeth?

Dressing: Are you physically able to dress yourself and make appropriate clothing decisions?

Grooming: Can you comb your hair and trim your toenails and fingernails? Can you properly apply makeup or shave yourself?

Mobility: Can you move around without the assistance of a walker, wheelchair, or cane? Can you successfully get out of bed, get onto and off of the toilet, go up and down the stairs and sit or rise from the couch or other furniture on your own?

Toileting & Continence: Are you able to use the restroom without any assistance or handle your own ostomy bag?

Instrumental Activities of Daily Living (IADL)

IADL’s are activities a person must perform in order to live independently in a community setting during the course of a normal day.

Some examples of IADL’s include:

  • Shopping
  • Cooking
  • Washing laundry
  • Housecleaning
  • Managing medications
  • Using a telephone
  • Managing money
  • Driving
  • Handling mail

Financial Advisor

Financial Advisor’s New Fiduciary Duty

On June 9, 2017, the Department of Labor ruled that financial advisors must now act as a fiduciary for their clients. As always, with changes in the law, you may have questions as to what this means.

A fiduciary is a person (or organization) that owes the principal the highest legal duty of good faith and trust. They are legally and ethically bound to act in the principal’s best interest. Simply put, it means that financial advisors need to act in the best interest of the client. This means:

  • Fiduciaries must charge no more than a “reasonable” fee for his or her services.
  • A fiduciary should disclose all material facts, and must avoid lying to, or misleading, the client about the products they’re recommending.
  • They must act with the skill, due diligence and knowledge expected of someone familiar with the responsibilities of being a financial advisor.
  • Conflicts of interest must be avoided.

The results of this rule are that Financial Advisors may need to restructure fees or how they operate their investments to comply with the new rules. The question of what exactly a reasonable fee is, remains unclear and most companies will set their own internal practices.

While the fiduciary rule currently applies only to retirement accounts (including 401(k)s and IRAs), it may expand in the future. Until then, it is wise to ask if your advisor is a fiduciary regarding your other accounts.

To make sure that Financial Advisors are complying with new rules, it is most important to remember who your client is. In situations where financial advisors are looking at family plans between husband and wife or between parents and children, this can cause conflicts of interest if the advisor does not know who they are advising. While it seems like a simple concept on its face, the implications of having a fiduciary duty can be nuanced and complicated.

The Fiduciary rule may be new to financial advisors, but many people serve in a fiduciary for others.  Attorneys are always held to a fiduciary standard for their client. Powers of Attorney for Financial and Health Care decisions are held to the same standard. Guardians are fiduciaries and are overseen by the court to make sure they are acting in the best interest of their wards.

Like all new rules, it may require a period of adjustment, but it is another example of how we all need to work together in our individual fields to continue to improve upon protecting the best interests of our clients.