Category Archives: Long Term Care Planning

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
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Pooled Trusts & Medicaid Planning

Pooled Trusts & Medicaid Planning

A powerful tool for Medicaid planning that we are seeing more use from is a Pooled Trust. A Pooled Trust (sometimes referred to as a (d)(4)(C) trust) is a very specific type of trust used to help disabled individuals qualify for the government benefits they need while maintaining some funds set aside for things they may want to preserve the quality of life they are used to. A pooled trust is one of many tools an elder law attorney can use to help a person qualify for Medicaid. There are many different types of trust, and it is important to make sure you have the right trust for your situation. If used in the wrong way, a trust can actually cause more harm than good.

Basics of Medicaid

Medicaid is a needs-based governmental program to help people who cannot afford to pay for their medical care. In order to qualify for Medicaid, one must have less than $2,000 in assets. Once qualified for Medicaid, a person gets to keep $50 per month for personal spending. The rest of their income goes to pay the initial cost of the nursing home. Medicaid then picks up the tab for whatever that income does not cover that month. With the average monthly nursing home cost ranging between $7,000 – $8,000 a month, Medicaid is often the only choice for senior citizens in need of care.

Basics of Pooled Trusts

One thing all trusts have in common is that there are at least three parties to a trust; the Settlor, the Trustee, and the Beneficiary. The Settlor is the person who funds the trust. The Trustee is the person who manages the trust. The Beneficiary is the person who benefits from the trust. Often there is a primary beneficiary and then contingent beneficiaries named for after the primary has passed away.

The purpose of a Pooled Trust is to pay for items or services not provided by Medicaid. These items and services are not meant to replace SSI or Medicaid benefits but rather enhance the life of the beneficiary by supplementing them.

Pooled Trusts must be irrevocable, which means once they are set up and funded, there is no way a person can demand their money back. If they could, the trust would not qualify for Medicaid purposes.

Who can be the Settlor?

Pooled Trusts are unique in that the trust itself is already set up. An individual opts to join into an already established trust. Pooled Trusts get their name from fact that the funds in the trust are “pooled” with funds of other disabled individuals into one main trust and each individual gets their own account when they opt in. The account must be set up solely for one disabled individual’s benefit and must be funded with the individual’s assets. The person who sets up the account can be the disabled individual herself, or her power of attorney, parent, grandparent, legal guardian, or the court.

Who can be the Trustee?

The trust must be managed by a nonprofit organization. Currently in Ohio there are three companies that specialize in pooled trusts to choose from:

  • The Community Fund Management Foundation (CFMF) in Cleveland
  • The Disability Foundation in Dayton
  • The Ohio McGivney Pooled Special Needs Trust in Columbus

Separate from the trustee, who manages the funds, is the Designated Advocate, often a spouse or power of attorney, who represents the beneficiary and submits requests for money on behalf of the beneficiary.

Who can be the Beneficiary?

The primary beneficiary must be the disabled individual. “Disabled” is defined in rules adopted by ODJFS. There is currently no age limit in the state of Ohio on who can be a beneficiary. There can be no other primary beneficiaries named on the account, including the spouse or children.

Once the primary beneficiary has died, the pooled trust must contain an express provision for reimbursement to the state of Ohio for Medicaid services provided. If there are still excess funds remaining in the account once Medicaid has been paid back, those remaining funds may go to the spouse or other named remainder beneficiaries.

Funding the Pooled Trust

The trust is funded exclusively with the individual’s assets. The trust cannot receive funds from people other than the individual. A pooled trust is funded exclusively with cash. You would not put a house or personal property in a pooled trust. Assets that would otherwise be countable for Medicaid can be transferred into the pooled trust penalty free. Excess funds can later be added as they become available such as an inheritance or a lawsuit settlement. The individual can fund the trust with assets or irrevocably assign his or her income to the pooled trust. Generally there is a required minimum initial deposit of at least $5,000 to set up a pooled trust, however there is a method to fund pooled trusts with less.

Getting Money out of the Pooled Trust

Once the trust is set up and the Beneficiary is on Medicaid, the Designated Advocate represents the Beneficiary and submits forms (including receipts) to the pooled trust to request money from the trust account for the Beneficiary’s supplemental services. Once a request is approved, the Trustee releases the money from the trust account for payment to the vendor, service provider, or Designated Advocate. Cash can never be distributed directly to the Beneficiary.

Distribution requests can be submitted at any time and there is no limit on the number of distribution requests that can be submitted. The entire process may take three to four weeks from the date the request is issued. If there is an emergency, an emergency distribution request can be made at any time, but there is a fee. Reoccurring payments can be set up if the amount of the item or service remains the same, for example, a distribution request can be made for cable TV or other such common expenditure each month.

Money distributed from a trust account must be used for supplemental services for the sole benefit of the Beneficiary. The trust cannot provide for other people in the beneficiary’s life, such as for example, tuition for a child. A request may be denied if the Trustee feels it would interfere with the beneficiary’s governmental benefits, if they do not have proper documents and receipts, or if they feel the request is unreasonable.

A pooled trust can be used only to pay for supplemental services. It cannot be used for food and shelter. Supplemental services are those items or services that will not be paid for by insurance or a government program, but supplement and can enhance the quality of life of an individual with a disability. Examples include:

  • Dental Care
  • Plastic, cosmetic surgery or non-necessary medical procedures
  • Psychological support services
  • Recreation and transportation
  • Differentials in cost between housing and shelter
  • Supplemental nursing care and similar care which public assistance programs may not otherwise provide, including payments to those providing services in the home
  • Telephone and television services
  • Electric wheelchair and other mobility aids
  • Mechanical bed
  • Periodic outings and vacations, including costs incurred by caretaker companions
  • Hair and nail care
  • Stamps and writing supplies
  • More sophisticated medical, dental or diagnostic treatment, including experimental treatment, for which there are not funds otherwise available
  • Private rehabilitative training
  • Payments to bring in family and friends for visitation if the trustee deems that appropriate and reasonable
  • Private case management to assist the primary beneficiary, or to aid the trustee in the trustee’s duties
  • Medication or drugs prescribed by a physician
  • Drug and/or alcohol treatment
  • Prepay funeral and burial expenses
  • Companions for reading, driving and cultural experiences

A Pooled Trust is one of many tools that can help a person qualify for Medicaid while maintaining some funds that enhance the beneficiary’s life. It can be a powerful tool in your long term care plan. Because all types of trusts are complex, consult your attorney if you feel a Pooled Trust would be advantageous to you or someone you love.

The Split Gift & Annuity Plan (Creating and then Curing Penalties

 The Split Gift & Annuity Plan
(Creating and then Curing Penalties)

Long Term Care Medicaid is a welfare based program. This means that in order to qualify for Medicaid a person must not only have a medical need, but they must also financially qualify by having less than $2,000 in countable assets. A person, who has more than $2,000 in assets, can expect to pay privately until the money runs out and they qualify financially for Medicaid.

Many seniors are distressed by the idea of their life savings being drained to pay for final expensive days in a nursing home. They worry about how they will get by with only $50 in income once they are on Medicaid, and they wanted to leave behind an inheritance for their children. In some cases it may be possible to do emergency plans that can protect a portion of the assets from being spent down for Medicaid. We call this strategy a Split Gift & Annuity Plan.

Reducing assets to $2,000 can be accomplished by either giving away the assets or turning the assets into income for the Medicaid Applicant. The Split Gift Annuity Plan uses a combination of both techniques to shelter some of the assets while still providing payment for the applicant’s care.

Who This Plan is Good For

  • Single clients about to receive nursing home care with children, or others who they trust and want to inherit.
  • Clients who do not have other penalty free transfers available to them.
  • Clients who have already pre-purchased funerals, spent down assets, and still have assets left over.
  • Clients with at least $100,000 in assets half of which are liquid.

Making the Gift

The government does not want to encourage people who could pay for their care to give away their assets, so they penalize gifts.  Making gifts is not illegal, but is discouraged through the rules of Medicaid. Any gifts made within five years of your Medicaid application (the “look back” period) will cause a period of Medicaid ineligibility. Gifts made more than 60 months before your application need not be reported and will not be penalized. Once the gift is made, it will be penalized unless it is returned in full. A partial return of the gift will not shorten the penalty period.

Gifts made within this “look back” period will cause you to be ineligible for Medicaid for one month for every $6,327 transferred.  In other words, if you were to transfer $63,270, you would be ineligible for full Medicaid for 10 months ($63,270 divided by $6,327= 10 months).

During this penalty period when you are on Restrictive Medicaid, Medicaid does not pay for your nursing home care. This means you need to find another way to pay for your nursing home bill. However, the clock on the penalty period does not start until you are otherwise qualified for Medicaid (remember you must have less than $2,000 to qualify). With less than $2,000 in assets, there must be another way to pay for care during the penalty period without returning the gift. To accomplish this, we use a Medicaid Qualified Annuity.

Paying During the Penalty Period

During the penalty period, you will be required to come up with the funds for this nursing home bill elsewhere. Your regular income from Social Security or pensions will presumably cover part of the costs, but presumably you will still need some other way to supplement your income to afford your nursing home bill. To accomplish this, you use a portion of your assets not gifted away to purchase a Medicaid Qualified Annuity to pay for your care during the penalty period. Each month, the annuity will provide a guaranteed payment. Once the penalty period has passed, your annuity will run out and Medicaid will kick in and pay for all your care. The gifted assets will then be in your children’s hands, and Medicaid will not be able to come back for them.

Dealing with High Income

Medicaid has income limits that do not allow people to qualify for Medicaid without a special type of trust. If a person’s income is over $2,199, in order to qualify for Medicaid they will need to place their excess income in a Qualified Income Trust (QIT). Because the annuity will raise the applicant’s income over the limit, a QIT will need to be set up during the penalty period. Many people do not need the QIT after the penalty period has passed. For more information, please ask your attorney.

Possible Problems

While the Split-Gift Annuity Plan can work very well when used appropriately, there are some risks involved. There can be tax consequences. The people who receive the gift may run into issues while holding onto it. Sometimes a change in the applicant’s health or a death can interfere with the plan.

Because assets need to be liquid in order for this type of plan to work, you may be required to cash out assets. This may cause unfavorable income tax consequences. If IRA or 401K assets are liquidated, every dollar is taxable.  Withdrawing a large sum may also put you into a higher tax bracket. Accumulated income on deferred annuities and savings bonds are taxable. You may also have capital gains if you liquidate appreciated assets.  Depending on your circumstances, the cost of medical care may be deducted from your taxes.

Once the applicant gives away their assets, they lose all control over them. A gift to your children means that the funds transferred belong to them, no matter what promises they may make to hold them for you. The funds are vulnerable in the event of a child’s death, divorce, a lawsuit, bankruptcy, or the child’s decision to simply use the funds for herself. If these issues are a concern, a special type of trust can protect against some of these possibilities.

Another thing to consider is the applicant’s health. If an annuity is calculated for 10 months, but the applicant goes into the hospital for a month, they don’t need the money to cover nursing home costs during that time and will have too many assets to continue to qualify for Medicaid. Sixty-eight percent of nursing home stays last less than three months, however many last significantly longer than this. Sometimes if the applicant is in very poor health and may pass away before the penalty period would pass, it may make more sense to pay privately to avoid tax burdens and administrative costs.

It is important to remember Medicaid law is complex and dynamic. Not every plan will work for every situation. There may be better options available to you and your family. You should always consult a qualified elder law attorney before attempting any Medicaid transfer plan.

Hypothetical Example

Claire needs long term care. Her nursing home costs $7,500 a month. She has $126,540 in assets. She receives $1,250 in income each month. She has two children, Annie and Bobby. Under the supervision of her attorney, Claire splits her assets in half and gifts half ($63,270) to her two children, and uses the other half to purchase herself a Medicaid Qualified Annuity that pays her an income of $6,250 a month guaranteed for ten months.

She then applies for Medicaid, and is put on Restrictive Medicaid for ten months (due to the gift). During the penalty period she uses the annuity and her income to pay privately for her care for ten months. Because her income is high, she will need a Qualified Income Trust during this period.

At the end of the ten months the annuity is all used up. Her income drops back down to $1,250 a month and Medicaid pays for her care. The children have a bank account in their names with $63,270 in it. They use this to pay for any extra things Claire may need during her life time. When Claire dies, they divide the bank account as an inheritance.

 

Home Is Where The Care Is

HOME IS WHERE THE CARE IS

Home is where the heart is. Though you may love your home, the day may come when you are unable to receive the care you need there. Sometimes living in the home is no longer practical or safe. The home may be too hard to navigate or too isolated and sometimes healthcare needs just exceed what can be provided at home.

Many seniors’ biggest fear is leaving their homes. Some fear leaving home will mean a total loss of independence. They fear that if they leave home, they will be “locked away” in a nursing home. The good news is there are many options available for seniors besides nursing home care. When facing a housing change you need to be asking the right questions. What level of care do you need? Who will provide the care? Where can you get this care? How will you pay for this care?

STAYING AT HOME

Sometimes staying in the home is the best option, whether for financial or emotional reasons. Accepting care in the home early can help prolong the period of time seniors can remain safely in their homes. The next question is what resources do you have available to you to allow you to remain in your home while still getting the care you need. Some people are low in funds, but rich in family. Some people may not have family in the area, but can afford to pay for care in the home. There are also some low cost home services available for those who qualify.

Care Taker Child Services

If you are lucky enough to have a child or grandchild in the area whom is able to care for you, you may receive basic care from them. Sometimes it’s enough for your children to split up duties and visit or call every day. Sometimes someone may need to move into the senior’s home to make sure 24/7 care is provided or the senior may choose to go live with relatives in their home.

Care contracts can be very helpful in laying out the terms of who is expected to pay and do what. Drawing up a care contract early on can ensure both parties know what they are getting into, and make things clear to other family members that no fraud is taking place. A good care contract can also serve to transfer funds within the rules of Medicaid. Medicaid also has certain exceptions for transferring the home to caretaker children and rules for mother-in-law suites. You should consult with an elder law attorney if you are considering moving in with a relative.

Home Care Services

Some people don’t have family nearby who are able to help. A senior who would like to remain at home may consider hiring in some home services. There are two types of Home Services; Home Care and Home Health Care. Home Care services offer personal care and can be provided by any agency or individual. Home Health Care deals with medical issues, and requires licensed skilled nursing. Many times, some combination of the two is needed.

It can be hard for seniors who have saved their whole life to pay for work they’re used to doing, but it can ease burdens and prevent injury. Just about everything can be hired out these days. Lawn services, cleaning services, meal prep and taxis are usually the first thoughts, but anything consisting of assistance with personal hygiene, dressing or feeding, nutritional or support functions can be hired. Medical needs can also require services which include skilled nursing care, speech, physical or occupational therapy or home health aide services.

When hiring someone to come into your home it is important that you find a good fit. Check to make sure an agency is licensed and bonded and runs background checks on their workers. Usually these services are private pay, or offered through a church, a specialty charity, or by friends. If you cannot afford to pay for these services, you may be able to qualify through a welfare program such as PASSPORT. Consult with your elder law attorney to see if you qualify for assistance.

Adult Daycare

Adult Daycare is group supervision for elderly persons in a community facility. It provides social, recreational and sometimes health services. Seniors go to a location for the daytime and come home in the evenings. This setup works particularly well for seniors who need full time supervision and live with a working child or spouse.

There are three main types of Adult Daycare. Adult Social Daycare provides meals, recreation, organized social activities and some minor health related services. Adult Health Daycare provides some social activities, and more intensive health and therapy services. Specialized Adult Daycare Centers serve only specific care recipients such as those with diagnosed dementia.

Ohio does not license and regulate adult day care. Because of this, there may be a great difference between individual centers; do your research. Costs vary greatly and can range from $25 to over $100 per day. Adult Daycare is not usually covered by Medicare and is usually private pay. Some financial assistance may be available through other programs (e.g. Medicaid, Older Americans Act, Veterans’ Health Administration).

SENIOR FACILITIES

Sometimes staying at home is no longer an option. When this is the case, most people automatically think “Nursing Home” but depending on the level of care needed, there may be less expensive and less intrusive options for facilities

Independent Facilities

If staying at home is no longer feasible because of isolation or transportation, but the senior is still very high functioning, an Independent Living Facility may be a great option. Independent living is any housing arrangement designed exclusively for seniors, generally those aged 55 and over.

The senior has their own private space which is a part of a larger senior community. Housing varies widely, from apartment-style living to freestanding homes. While residents live independently, most communities offer amenities, activities, and services. Since independent living facilities are aimed at older adults who need little or no assistance with activities of daily living, most do not offer medical care or nursing staff however, as with regular housing, though, you can hire in-home help separately as required.

Costs can vary widely with independent living. Average monthly cost of independent living ranges from about $1,500 to $3,500. Medicare does not cover the cost of independent living.  Some long term insurance with home care benefits may contribute to independent living expenses. Most people pay privately. There is subsidized housing for low-income seniors available.

Assisted living facilities

For those seniors who are unable to perform activities of daily living or who have a cognitive impairment beyond the point of independent living, Assisted Living is the next step up after independent living, but still is a step below a nursing home.

Assisted living residences vary considerably. Most provide meals, laundry, housekeeping, transportation, and social activities. They also offer personal care, like assistance with eating, bathing, grooming and personal hygiene. Some nursing care is also provided, including medication administration and dressing changes.

Costs for Assisted Living can vary widely, even within a facility, depending on the amount of care needed. Costs generally range from $2,000 to $4,000 per month and vary depending on the size of the living area chosen, location and the amount of care needed. Basic room and board is set at one fee, and as you add on extra services costs go up. If a senior moves to an assisted living facility, she should budget expecting costs to go up as their need for care increases over time.

Medicare does not cover the cost of assisted living. Most people private pay for assisted living facilities. Ohio’s Assisted Living Waiver Program pays the costs of care in an assisted living facility for certain people with Medicaid, allowing the consumer to use his or her resources to cover “room and board” expenses. Individuals who meet certain medical and financial criteria may be eligible for Ohio’s Assisted Living Waiver Program. Unfortunately, very few assisted living facilities accept Medicaid and even if they do, there may be a limited amount of “Medicaid qualified beds”. If looking at an assisted living, consult with your elder law attorney on payment and planning options.

Nursing Homes

Nursing Homes offer full 24/7 care for seniors. The senior may have a private, semi private, or shared room. The facility provides all meals and social activities. Some have locked units for people suffering from dementia and wandering. Each nursing home has its own personality, so it is important to shop around for a good fit. You may need to get on a waiting list ahead of time. While some seniors live at a nursing home for an extended period, more than half of all nursing home stays are for three months or less.

Nursing Homes must be licensed by the state of Ohio. There is a wide range in costs between different nursing homes, but statewide, the average cost of a nursing home is more than $6,000 per month (though costs may be significantly higher). Medicare does not cover the cost of a nursing home (other than for limited rehabilitation). Long Term Care Insurance or Private Pay are often used to cover nursing home stays.

Many people staying long term in a nursing home facility cannot afford to private pay for long.  Because of this, Medicaid is the primary payer for over 63 percent of nursing facilities. In order have Medicaid pay, you need to have spent your assets down to a qualifying level, and need to be receiving care in a nursing home that accepts Medicaid and has a Medicaid bed open. It is important that if you are looking to move into a nursing home for long term care to consult with your elder law attorney. There are many legal strategies available to help qualify for Medicaid while possibly protecting some assets.

Continuing Care Retirement Communities (CCRCs)

Continuing Care Retirement Communities offer a spectrum of care from independent living to nursing home care in the same community. A senior may start out in independent living in an onsite condo, and then transfer to the nursing home facility later on depending on need. People like CCRC’s because they can age in the same place. They can be especially good for spouses who would like to stay together, but may need different levels of care.

CCRCs are almost always private pay. On top of this, most CCRCs generally require a large entrance fee which covers some of the costs associated with higher care levels later on. Once this large entrance fee is paid, residents then pay a monthly rent, which increases as care levels increase. If a senior decides to move elsewhere later on, it can be difficult to recover the entrance fee. Consult your elder law attorney on the pros and cons of CCRCs and how you might pay for care at one.

VA Contract Home & Services

The VA offers everything from full nursing home care, to home care, and financial assistance for eligible veterans. All of the options listed above may have some VA alternative for eligible veterans. Funding may be partly private, but the VA helps financially provided the senior meets their financial, medical, and service requirements.

The VA has its own private contract nursing home known as the Ohio Veterans Home in Sandusky. This is a contract home that is a 427-bed nursing home facility. It offers two levels of care: standard care for those veterans in need of any intermediate level of care, and special care for veterans with Alzheimer’s disease and other types of dementia. Unlike other nursing homes, the VA contract home is mostly populated by men. For more info, call toll free (866) 644-6838

SHORT TERM SOLUTIONS

Sometimes you are not looking for a long term solution you just need help “right now” in the moment. There are short term solutions available to seniors looking for help while they make other arrangements.

Respite Care

Respite Care is a short-term stay at a senior community, usually an assisted living or memory care community. It is not a long term solution, but can be a great living option for an elderly or disabled person who needs some day-to-day supportive services, but still desires social stimulation, engagement and activities. It can provide a good for break for caregivers, so that they know the senior is receiving good care while they are out of town, or unable to be available for a period of time. It can also be a good way to ease into a transition or try out different facilities. Many nursing homes and assisted living offer short term stays. It is almost always private pay, but Medicare may cover up to 100 days if the short term stay is for rehab.

Hospitals

Hospitals are not a feasible long term care solution. They are for short term emergencies generally. A hospital can be a good solution to caring for a senior with health or mental problems while placement is being arranged at a nursing home or assisted living. When a hospital inpatient is staying at the hospital and there is no medical necessity for being in there, this is considered an “alternate level of care”.

Hospice Care

Hospice is a program for persons who are terminally ill and have a life expectancy of six months or less. Hospice can treat patients in their home, a nursing home, or a hospital. Hospice offers palliative care only, which is specialized medical care for people with serious illness. It focuses on providing relief from the symptoms and stress of a serious illness.

The goal of hospice is to improve quality of life for both the patient and the family. Services extend outside of medical care. Hospice services also may include; running errands, preparing light meals, staying with a patient to give family members a break, lending emotional support, companionship, grief counseling, “make a wish” type programs, and more.

In order to qualify for hospice, a doctor has to certify that you are terminally ill and have a life expectancy of six months or less. Hospice care is then provided for two 90-day benefit periods, followed by unlimited number of 60-day benefit periods. You have the right to change providers only once during each benefit period. At the start of each period, the doctor must re-certify that you’re terminally ill so you can continue to get hospice care. If you get better or go into remission, you can “fail out” of Hospice. Once you choose hospice care, your hospice benefit should cover everything you need, other than room and board, which is still paid privately. Hospice is covered by your Medicare, Medicaid and insurance completely.

As people age, the level of care they need can change. There are many places where seniors can get the care they need. It is not just a question of home vs. nursing home. The important thing is that people have access to the help they need and know their options. When considering care and housing for yourself or a loved one, please call your elder law attorney to discuss your specific situation and what your options may be.

Major Changes in Ohio’s Medicaid Laws – The 1634 Transition

Major Change in Ohio’s Medicaid Laws
The 1634 Transition

“The world hates change, yet it is the only thing that has brought progress.”
–Charles Kettering

A change to Ohio’s system of qualifying for need based public benefits is long overdue. The current system is fragmented and complex requiring needy individuals who are aged, blind or disabled to navigate a maze of different agencies, policies and procedures to qualify for SSI, Medicaid, and other programs. 

SSI Ohio Medicaid
OOD – Opportunity for Ohioans with Disabilities ODM – Ohio Department of Medicaid
Resources – $2,000 Resources – $1,500
Income – $743 Income – $634

STREAMLINING QUALIFICATION

On July 1, 2016 Ohio will streamline its Medicaid system by using the same eligibility requirements for Medicaid as are used by the Social Security Administration to determine eligibility for SSI. Only one application will be necessary and those qualified for SSI will automatically qualify for Medicaid.

ELIMINATION OF SPENDDOWN

Under the present Medicaid system, individuals with income higher than the qualifying level can “spenddown” their excess income on medical expenses each month in order to qualify. Spenddown can be made in a variety of ways and expenses are sometimes grouped together making individuals qualified in some months, but not in others.

Reoccurring Expenses “Pay In” Delayed
Established monthly costs or unpaid medical bills that meet spend down Pay excess assets directly to Medicaid by the 15th of the month Expenses are “incurred” in the month whether or not the person pays the bill

The “spenddown” system is inordinately complex both for the applicant and for the Medicaid worker who must review the bills and payments used to determine eligibility month by month. Depending on the type of spend down, the system is also patently unfair as some people may be forced to pay up front while others may “incur” bills that are never paid.

THE 1643 TRANSITION

Effective July 1 there will be no spenddown option. Those with income more than the qualifying level will no longer be eligible for Medicaid benefits. ($733/month for community Medicaid –$2,199/month for institutional Medicaid)

The majority of Ohioans receiving Medicaid will not be affected by the change. Some who are will leave Medicaid and seek medical coverage through the exchange or through Medicare. Individuals with severe and persistent mental illness will be covered under a new state plan with an income cap of 300% of the Federal Benefit Rate ($2,199 in 2016).

“What we call progress is the exchange of one nuisance for another nuisance.”
–Havelock Ellis

QUALIFIED INCOME TRUSTS (Miller Trusts)

In place of monthly spenddown, individuals with too high an income to qualify for Medicaid must place their excess income in a Qualified Income Trust (QIT) each month. Income properly placed in the QIT is disregarded and the individual will qualify for Medicaid.

Ohio has issued regulations regarding the qualification and operation of QIT’s and has engaged the services of Automated Health System to educate applicants and facilitate the establishment of QIT’s. These services will be provided free of charge for those already on Medicaid who will lose their benefits because of excess income when the transition occurs on July 1 (an estimated 30,000 people).

A QIT can only be used to establish Medicaid eligibility by a primary beneficiary who is eligible for LTC Services by the Ohio Medicaid Program.

  • Inpatient care in an institution such as a nursing home
  • Home and Community Based Services
  • Program for All-Inclusive Care for the Elderly (PACE) Services

WRITING THE QIT

The Trust itself must meet all the statutory requirements:

  • Established by primary beneficiary, his agent or guardian
  • Irrevocable
  • Primary beneficiary cannot serve as trustee
  • Medicaid payback on the death of the primary beneficiary

FUNDING THE QIT

Trustee must establish a QIT account with a bank, credit union or other financial institution.

  • Only the primary beneficiary’s income can be placed in the QIT account
  • No other property or resources can be put into the QIT account (income received in one month and held into the next month is then considered a resource)
  • The primary beneficiary cannot assign his income directly to the QIT account, but must first receive the income then move it to the QIT in the same month
  • The primary beneficiary can put some of all of his income into the QIT, but all of the income from any one source must be put into the QIT account
  • The source of the income must be reported to Medicaid

DISTRIBUTING FROM THE QIT

  • Each month after the excess income is deposited into the trust account, distributions must be made as follows:
    • Personal allowances for the beneficiary
    • Maintenance allowance for the beneficiary’s spouse or dependents
    • Medical expenses incurred by the beneficiary
    • Up to $15 for bank fees, attorney fees, or other administrative costs
OLD
Income Social Security – $2,050

Pension – $1,000

 

$50 PSA

$1,000 MIA

$2,000 NH

Resources $1,500 Medicaid ^

 

NEW
Income Social Security – $2,050

Pension – $1,000

 

QIT

$2,050

$1,000

$50 PSA

1,000 MIA

$15 Bank

$1,985 NH

Resources $2,000   Medicaid ^

PENALITIES

  • If the QIT is not established, the beneficiary cannot qualify for Medicaid
  • If the QIT document is not drafted correctly, everything in the QIT account will be considered available resources
  • If the verifying information is not provided to Medicaid every month, the income will be considered available and the beneficiary will be ineligible for Medicaid – any payments made by Medicaid during a period of ineligibility are subject to recovery
  • Any funds other than the permitted income put into the QIT account will be considered an improper transfer
  • Any distributions made from the QIT account other than those permitted will be considered an improper transfer

Some questions remain regarding the QIT process. Who will establish the QIT’s for disabled individuals who do not have an agent or guardian? Who will arrange for the transfer of their income to the QIT each month? Who will serve as Trustee for those who have no one?

“Any change, even a change for the better, is always accompanied by drawbacks and discomforts.
–Arnold Bennett

Achieving A Better Life Experience – ABLE Accounts

Achieving A Better Life Experience – ABLE Accounts

2016 could be a banner year for Ohioans with disabilities and their families as our Treasurer of State rolls out a program to establish ABLE accounts. These tax advantaged savings accounts will allow individuals with special needs and their families to save for “qualified disability expenses” in the same way that a 529 plan allows families to set aside money for college expenses.  The funds accumulated in the ABLE account will not disqualify the beneficiary for needs-based public benefits such as SSI, Medicaid, Section 8 Housing, and food stamps.

Why would an ABLE account be needed?

Public benefits such as SSI and Medicaid are “needs-based”. In order to qualify, a person must have limited assets. To avoid jeopardizing their benefits, people live in a chronic state of poverty. They cannot save for big purchases.

The ABLE account can allow beneficiaries with small savings to qualify for Medicaid. It can give those on SSDI or SSI recipients with part time jobs an easy place to accumulate excess earnings. Family members will be able to make small gifts to encourage independence.

Who qualifies for an ABLE account?

To qualify for an ABLE account an individual must be disabled as defined by Social Security standards and the disability must have begun prior to the age of 26. Contributions can be made by anyone (the account beneficiary, family or friends).

What expenditures are allowed?

A “qualified disability expense” can include education, housing, transportation, employment training and support, assistive technology, health care expenses or financial management costs. These expenses can enhance the beneficiary’s quality of life by providing goods and services not covered by public benefits.

Are there limits as to how much money can be put in the ABLE account?

Each beneficiary can have only one ABLE account. Total contributions to the account can be no more than the annual gift tax exclusion ($14,000 in 2016). If the ABLE account balance exceeds $100,000, SSI income will be suspended until it is reduced, but other programs won’t be affected. Each state that adopts an ABLE program will set a maximum limit on the account.

What happens when the ABLE account beneficiary dies?

When the beneficiary dies, the money in the account must be used to reimburse the state for expenses paid by Medicaid.

How is an ABLE account different than a Special Needs Trust or Pooled Trust?

The ABLE account will cost less to establish and maintain than a Special Needs Trust or Pooled Trust and will allow beneficiaries to control their own money. This will make the ABLE accounts much more flexible and accessible. Funds in the account may also be more susceptible to misuse and penalty as they will lack the oversight of a Trustee. Trusts will still be better suited for large personal injury awards and inheritances.

Where can I establish an ABLE account?

You will be able to establish an ABLE account in any state that has an established program, but only one account can be established per beneficiary. Each state will determine which financial institutions will administer the ABLE accounts.

At the present time, no state has a fully developed ABLE plan. Ohio is on track to have one of the first.

ABLE accounts will be a valuable new resource for qualified beneficiaries and their families. Consult a knowledgeable elder law or estate planning attorney to discuss how they will coordinate with trusts, guardianship’s, and other legal issues affecting people with special needs.

 

 

Visit the website for additional information: http://www.stableaccount.com/

I Do, But I Don’t-Modifying Estate Plans in the Face of Catastrophic Illness

By far, the most popular estate plan that I draft is what I refer to as the “I Love You” plan.  Husband executes a will leaving everything to wife. Wife executes a will leaving everything to husband.  Everything is left to children in equal shares when both parents die. For good measure, we title the assets jointly with right of survivorship (house, bank accounts, stocks, bonds) or designate the spouse as beneficiary (IRA’s, life insurance, annuities) so that there isn’t even a probate estate when the first spouse dies. Simple, effective and so popular that the “I Love You” plan is the one chosen by Ohio’s descent and distribution statute for those who never got around to writing a will. Why is this plan so popular? It’s because that is what most people want.

The problem comes when one spouse becomes ill or debilitated to the point he cannot care for himself. The spouse may become so ill as to require nursing home care now or in  the  future,  especially  if  the  caregiver  spouse  passes  away  first.  Then,  the  “I  Love You” plan becomes the worst of all possible plans because leaving everything to the ill spouse,  in  essence,  means  leaving  everything  to  the  nursing  home  to  pay  for  the spouse’s care. Planning ahead is essential to protect assets for the family.

Even more important than a will, which distributes assets at death, each spouse should execute  health  care  and  financial  powers  of  attorney.    These  documents,  prepared when both spouses are competent, appoint someone (usually the husband or wife with children  named  as  backups)  to  direct  medical  care  and  manage  finances  when  an individual loses capacity.

In  planning  for  potential  nursing  home  placement,  it  is  important  to  give  the  financial agent the power to transfer assets within the rules of Medicaid. With such a document, assets  can  be  moved  into  the  name  of  the  healthy  spouse  as  required  for  Medicaid qualification. To  qualify  for Medicaid, a  nursing  home  patient  can keep  only  $1500  in countable  assets.  This  is  usually  kept  in  the  checking  account  where  the  patient’s pension  and  Social  Security  checks  are  deposited.  The  healthy  spouse  may  keep
considerably  more  countable  assets  (with  a  minimum  of  $20,328  and  a  maximum  of 101,640 in 2007). These assets should be placed in the name of the healthy spouse alone “payable on death” to the children.

As long as the healthy spouse continues to live in the house, it is an “exempt” asset for Medicaid purposes regardless of which spouse’s name is on the deed. However, if the ill  spouse  is  on  Medicaid  and  passes  away  with  an  interest  in  the  house,  his  or  her share will be subject to Medicaid Recovery. A lien will be placed on the house which will be collected upon the death of the healthy spouse. Placing the house in the name of the healthy  spouse  before  a  nursing  home  admission  or  application  for  Medicaid  home waiver program may protect the house from Medicaid Recovery.

Once the house is in the name of the healthy spouse, he or she should also execute a new  will  excluding  the  ill  spouse.  If  the  healthy  spouse  should  then  die  first,  the  ill spouse would be required to elect to take only that part of the estate available under the law, preserving at least a portion of the assets for the children.

It seems only natural for most married couples to establish an “I Love You” estate plan, but the financial burdens of a catastrophic illness can quickly change both our lives and our plans. Be prepared.  Review your estate plan with your attorney every two to five years and whenever you have a major life change such as a birth, death, divorce, major illness or disability in the family. It’s the best way to say “I Love You”.