Saturday, October 3, 2009 @ 6:57pm

Medicaid Qualification

Is property conveyed by a single person to a safe harbor trust subject to the five year transfer penalty for purposes of qualifying for Medicaid coverage? If so, what are the advantages of a safe harbor trust as compared to simply gifting the estate property?

For a single person the act of transferring property is what starts the five year penalty. Which makes the owner of the property the wrong individual to create the trust unless the trust will name someone other than the transferor as the beneficiary. For those who want to remove assets out of their own estates for asset protection purposes would need to first gift the assets out of the estate to someone they trust; it is that transferee who will then create the safe harbor trust and place the gifted assets in the trust (subject to planning around a concept in law referred to as the step-transaction theory). The purpose would be for the transferee to want to protect the assets from his/her own creditors for the benefit of the named beneficiary (hopefully the transferor) and from title XIX benefits (Medicaid benefits).

For example, a parent might gift a home to a child. The child could consider that unless he put the home in a trust it would be vulnerable to his creditors (accident claim creditors, divorcing spouse etc.) By creating a trust he would remove the asset out of his own estate and thereby be able to afford a level of protection in the home for the parent who gifted the home in the first place.

Alternatively, the parent could place the home in the safe harbor trust naming the child as the exclusive beneficiary. Clearly nothing would stop the child from allowing the parent to use the home even though it is not owned by the parent. Either way, the gift out of the parent’s name subjects the transfer to the five year rule.

Friday, September 4, 2009 @ 12:00pm

Moving Elderly Parents closer to us !

One of my client Vicky calls to ask for advice regarding her aging father living in North Dakota in a nursing home. Stepmother rarely visits Dad in the nursing home and daughter would like to bring Dad to Washington so she can help care for him. Vicki relates that in a previous conversation when she had suggested the move, her dad had raised concerns over not being able to see his wife and thus refused the move. Stepmom has the power of attorney over Dad and may not be cooperative. Dad has been married to stepmom for several years.

Here is my advice to Vicky, you are dealing with a sticky wicket. I admire your dedication to your father. But the fact is that so long as your dad has any capacity to understand the issue and form an opinion about it, you will have no say-so. This is about your dad, not you. Your dad made the decision to marry your stepmom and give her the authority to make decisions on his behalf if he became incapacitated. People do strange things. As hard as it is for you to see your dad alone in the nursing home without visits from your stepmom, that is the choice your dad has made. Legally, you can seek guardianship over your dad, but guardianship will be granted only if you are able to show that your stepmom is negligent in her duties as agent under the power of attorney to your dad. Not visiting your dad regularly may not be enough for you to be successful. My advice would be to discuss this issue with your dad and stepmom and propose that you are willing to relieve your stepmom of the overwhelming responsibility of caring for your dad. I am sure that somewhere deep down, your stepmom knows that she is not being a good support person and may be willing to give up her role as agent under power of attorney. If that does not work, I would have you think hard about your legal right to seek guardianship. Unless your dad approves and will not suffer from losing his ability to see your stepmom, I would advise against it. What is the point of moving your dad if he is going to be miserable? He will likely resent your involvement and die a broken-hearted man. Resolve yourself to visiting your dad as often as you can and letting him know how special he is. And keep working on a solution that is acceptable to your stepmom as well.

Next, should you decide to move your dad, involve a care manager from the start to help you understand your options about his care. If you are willing to bring him to your home, the care manager will assist in developing a care plan that will allow this to happen without becoming overly burdensome to you alone. If living at home is not an option, the care manager will guide you through the process of selecting an appropriate housing alternative that will address your dad’s needs and resolve your concerns.

Tuesday, August 18, 2009 @ 7:48am

Threat Over Health Care Reform

Last Friday, someone left a threating message on my office phone because I deal with living wills, which help people make life-or-death decisions beforehand - in case they are ever put on life support.

But somehow, confused people believe I am promoting the violence and confrontations at recent town hall meetings about health care reform.

The anonymous caller said, "People like me need to be stopped because I are enabling a person who is planning to cause violence in our country. And my organization will be protested this weekend and they are going to go after me."

I deal with living wills, estate planning, medicare and medicaid advice - not health care reform.

"And they are ignorant, some people are, saying I talk about the same thing that the administration is talking about - so I must be part of the whole gestapo regime, which is not the case.

"This is nonsense. My wife looks at it, and she's afraid for our safety now."

I am glad that no protest actually materialized at my seminar in Bellevue. Maybe because I-405 was closed due to construction work....

"What we need to be doing is coming together to help people age better and live better." "I have no skin in the game as to whether the administration does with the health care plan. It will be what it will be."

There is one element of Obama's plan that's like a living will - it lets you decide your own fate if you're incapacitated.

Opponents say the plan calls for "death panels" that would make that decision, but today the president denied again that there is such a thing in place.

I will encourage people not to wait for the government to make that decision for us. Be responsible and act today, make your own decision and have a living will in place for yourself.

KOMO News was kind enough to interview me on the subject. Click the link to read more about it. www.komonews.com/news/53313202.html

Sunday, June 21, 2009 @ 12:02pm

Group Health is discharging my mom !!!

As an Elder Law Attorney, I experience first hand the same pain, anguish, struggle and frustration a family goes through while taking care of their loved one. Our health care system is so broken and complicated that it has simply forgotten the notion it was created on. Every one is treated as one fit size all regardless of individual necessities and requirements.

This week i received an email from one of my loyal radio show listener, who herself is a psychiatric nurse practitioner for last 30 years & taking care of her elderly mother. Her mother is right now at a rehab facility and she has Group Health Insurance. Rehab facility and Group health managed care wants to discharge her mother even though she cannot transfer by herself and may even have torn her shoulder rotator cuff in the fall which had not even been addressed yet.

Daughter thinks Group Health is not meeting their fiduciary duty & wants to discharge her mom, even when it is not safe for her mom to be discharged.....Daughter is struggling & fighting with the system, simply to maintain the quality, safety and dignity of her mom's life.

Under the law, Group Health can only discharge mom if it is safe for her to be discharged. I suggested the daughter to hire the services of a care mangers (social workers) to interface with the medical community and try and work with them in developing the discharge plan. If they are given a hard time then I will write a letter as an attorney requesting their cooperation and informing them that their planned discharge will place mom in physical jeopardy for which they may have liability. If they still insist in discharging then they have to give a written notice to mom and mom will have the right to request review. While the review is pending, Group Health must pay for the care of mom. However, if the review is unfavorable to mom then mom would have to pay for the days out of her own pocket.

I also suggested daughter to have a backup plan that is to work on Medicaid and or VA benefits while trying to push the Medicare days. The ideal way to deal with this situation will be to have care managers meet the Group Health folks and get an idea of what needs to be done to ensure the safety & quality of life for mom before discharging her and simultaneously review mom's estate for VA and Medicaid benefits......

Tuesday, June 16, 2009 @ 9:32am

Why Plan Your Estate ?

The knowledge that we will eventually die is one of the things that distinguishes humans from other living beings. At the same time, no one likes to swell on the prospect of his or her own death. But if you, your parents and other loved ones postpone planning until it is too late, you runt the risk that your intended beneficiaries - those you love the most - may not receive all that you would hope.

We should begin a discussion of estate planning with a consideration of what "estate" and "estate plan" mean. An "estate" is simply everything a person owns: bank accounts, stock, real estate, motor vehicles, jewelry, household furniture, retirement plans, life insurance. An "estate plan" is the means by which the estate is passed to the next generation. This can be accomplished through a variety of instruments. Most retirement plans and life insurance policies pass to named beneficiaries, chosen when you take out the policy or at a later date. Property that is jointly owned passes to the surviving joint owner. Trust assets are distributed according to the terms of the trust. Property held in an individuals name alone comes under the instructions laid out in a will, or in the absence of will, under the rules of "intestacy" set out in state law.

Problems often arise when people don't coordinate all of these methods of passing on their estate. A well-drafted estate plan also permits you to save as much as possible on taxes, court costs and attorneys' fees. Most importantly, it affords the comfort that your love ones can mourn your loss without being simultaneously burdened with unnecessary red tape and financial confusion.........

Thursday, June 11, 2009 @ 8:43am

Should I have a Will or Trust ?

This is one of most common question I get asked all the time from my clients & radio listener, should i have a Will or Trust ? Let me start by explaining the difference between a Will & Trust .

Will & Trust do exactly the same that who gets what when I die. But they work totally differently.

Will is a very simple document, where I write down my wishes, name the beneficiaries of my estate & let my family members know who gets what when I die. And when I die, my estate will go through probate. Lot of people are scared of probate process. I am hear to tell you that probate isn't a scary process. It usually takes 4-5 months to complete the whole process & during the process all my creditors will be notified & required to submit any claim if they are owed any money before the assets from my estate are transferred to my beneficiaries. Once the probate process is complete, no one can come to the beneficiaries of my estate and claim their inheritance.

On the other hand Trust is a business arrangement, it basically says i can avoid probate when i die, if i don't owe any money to anyone. When I create a trust, i give up the ownership of all my assets ( like house, cars, stocks, bank account etc) to the trust. One of the biggest benefit of Trust is protecting my assets from creditors. Trusts are private documents and only those individuals with direct interest in the Trust have any right to know of Trust assets and distribution.

In my personal opinion, i will create a Trust if my estate is worth more than 4 million dollar, i am in a second marriage situation, my kids will fight over the inheritance, or i have real estate in more than one state. Other than that Will should do fine for me ...............

Wednesday, April 22, 2009 @ 10:31pm

WE CAN ALL MAKE LIVING LONGER A REALITY - AND IT's QUITE EASY! HERE's HOW . . .

Last week I reported on a study that discussed how changes around the home can improve life expectancy by almost 3 years in the life of an elder living at home. However, that is not the only answer to increased life expectancy. According to a study commissioned by Donate Life America, though the majority of Americans express their intent to donate life saving organs, few actually register as organ donors. If one is to believe the information available on Donate Life America's website:

• More than 1,500 of our Northwest neighbors - and nearly 100,000 men, women and children nationwide are currently in need of life-saving organ transplants.
• Every 13 minutes another person is added to the national organ transplant waiting list.
• An average of 18 people die each day from the lack of available organs for transplant.
• In 2007, LifeCenter Northwest carried out 148 organ donor and donor family's wishes saving the lives of 475 of our Northwest neighbors.
• One donor can save or enhance the lives of over 50 people.
• More than 46,000 cornea transplants are performed every year, returning the gift of sight to those who have lost their vision.
• More than 1 million tissue transplants are done each year and the need for surgical tissue has been steadily rising.

http://www.donatelifetoday.com/content/understanding-donation/statistics

Contrary to popular belief that organs of the aged are fatigued and unusable, many organs can be donated by almost anyone. For example, almost anyone can donate their corneas, even individuals with diabetes or cancer, and tissue including skin can be donated by most people to treat burn victims.

How difficult is it to register to donate organs and help save the life of someone in need? It's as simple as going to the local department of licensing where you obtained your driver's license and letting them know that you wish to register as an organ donor. Too much hassle to drive there? An easier way may be to simply click here and complete the simple process online. https://www.donatelifetoday.com/register_online/sign_up.php.

Sunday, April 12, 2009 @ 11:14pm

WITH LITTLE ADJUSTMENT SENIORS LIVING AT HOME SHOWN TO INCREASE LIFE BY 3.5 YEARS!

Living independently and living longer have been cherished goals for as long as mankind has existed. Medicine has made significant leaps allowing us to live longer today than at any time in history. And now with a little help you may be able to add another 3.5 years to your life.

The March issue of the Journal of the American Geriatrics Society (http://www3.interscience.wiley.com/journal/122235309/issue) reports results of research conducted at Thomas Jefferson University in Philadelphia involving 319 individuals with an average age of 79. The individuals were still living at home and were starting to encounter some functional challenges ranging from picking up objects, opening jars, to more severe challenges such as getting in and out of the bath tub or being able to button clothing.

The individuals were divided into two groups: an intervention group that participated in occupational and physical therapy sessions designed to instruct participants in compensatory strategies, home modifications, home safety, fall recovery techniques, and balance and muscle strength exercises; and a control group that received no additional treatment. Members of the intervention group gained an average of 3.5 years compared to the control group.

Surprised? Shouldn't be! It is just common sense that being able to maintain balance and gait, learning how to cope with physical disabilities and removing potential hazards that can easily lead to innocent accidents, can allow individuals to maintain their independence. And the added years could be attributed to not having to face the loss of independence and the indignities of nursing home stays. Simple as that!
The real question should not be whether or not it might be possible to increase life spans: Rather, it should be why do most individuals insist on refusing intervention that could allow them to thrive better? And all in the name of maintaining independence.

Where can one access such assistance or guidance? A starting point could be your primary care physician. However, unless a physician has studied this issue and is familiar with the issues identified in the study mentioned above you may have to seek out a geriatrician and provide him a copy of the research. Alternatively, some communities equip their fire departments with the ability to conduct home safety studies. However, such studies may be inadequate to assess needs beyond the home safety needs. If the physician or local services are inadequate, a more appropriate alternative might be private Geriatric Care Management companies that specialize in coordinating services for seniors dealing with incapacity. You can locate a geriatric care manager at www.caremanager.org or by calling (520)881-8008.

Tuesday, April 7, 2009 @ 7:57pm

Rajiv Nagaich - Enthusiastic About Improving Clients Lives

What is that flying high? A bird? A kite? A flying carpet? No, none of these - it is our own fellow Elder Law Attorney Rajiv Nagaich: Flying high with a burst of energy about the prospects of being able to help his clients live a better life - one client at a time.

Click on the link to read the article on Rajiv Nagaich, to be published on the National Academy of Elder Law Attorneys magazine, with his photo on the cover page of the magazine.

www.agingoptions.com/documents/Rajiv%20Nagaich%20-%20NAELA%20News.pdf

Monday, February 9, 2009 @ 8:40pm

What is Elder Law ?

Most simply put, elder law is a legal speciality focusing on the legal needs of seniors. But that begs the question a bit. What are those legal needs? How do they differ from the legal needs of non-seniors? How do we define'seniors'?

Unfortunately, many of the legal issues seniors face arise from their loss of mental capacity or the onset of physical incapacity. The increased likelihood that we will need care as we age, especially after age 85, the failure of the American health care system to provide for such care under standard insurance, the high cost of such long-term care, and the complicated and piecemeal public 'system' of subsidizing long-term care combine to create the need for legal expertise to guide seniors either experiencing or anticipating long-term care needs. This is the core service of elder law.

However, elder law also includes more standard estate planning, simply with an eye towards the future need for long-term care, and more urgency given the higher age and likely sooner death of the client. Elder law also includes guardianships and conservatorship proceedings over seniors who may have lost or be losing their mental capacity (or defense against such proceedings), protection of seniors from those who may take advantage of them, the resolution of disputes with nursing homes and assisted living facilities over care and related issues, and the resolution of disputes among family members about the care of their parents and the financial cost of such care.

The term 'eniors' often refers to anyone over age 65. While individuals age at different rates, as a group there's a huge difference between those between 65 and 85 and those over 85. The vast majority of those in the first age group are healthy and enjoying their so-called 'golden years', while over half of those in the latter group need some assistance getting through the day. In fact, often it is those in the first group who are caring for their parents in the second group. Elder law attorneys help those in the first group prepare for their post-golden years, and help those in the second group deal with the legal and health care issues they come up against.