Elder Law vs. Estate Planning

Many people have difficulty describing the difference between what a traditional estate planning attorney offers his or her clients versus what an elder law attorney offers his or her clients.

The easy answer is that an estate planning attorney addresses the common issue of what happens to one’s assets at death.  In a traditional estate planning setting, much emphasis is placed on minimizing estate taxes, as well as insuring the most efficient and least restrictive means of transferring wealth to others.

For years this “what happens when I die approach” has been all that people have been familiar with.  But as people are living longer and the cost for healthcare is rising, the more appropriate question that should be posed to senior clients is “what happens if you live”.  More specifically, what will happen if you live but are not healthy and need to rely on others for assistance, either temporarily or permanently. The potential costs for community based care and care in a skilled nursing facility can be daunting and can quickly deplete a nest egg.

To put it another way, a traditional estate plan will make sure that your assets are passed in the manner you desire.  However, it neglects to address the more important issue: will you have any assets left to pass on to others when you meet your demise.  A lengthy illness, hospital and/or nursing home stay could leave your spouse and other heirs with nothing.

A long-term care plan can accomplish both goals: (1) distributing assets in the manner you choose, while (2) insuring that there are assets available to do so.

For additional information, please visit my website (www.daviaulaw.com).  If you or a loved one have concerns about whether your assets are or can be protected, contact me at (508) 797-3010 or e-mail me at nick@daviaulaw.com). 

Who will make critical life decisions for you if you cannot?

There is no substitute for being properly prepared when disaster strikes. Even in the course of ordinary life, it can become increasingly difficult for us as we get older to manage our own affairs. But this is especially true in cases of stroke, Alzheimer's and other mentally debilitating conditions. Fortunately, Massachusetts law allows residents to choose who they want to have control over their personal affairs should they lose the ability to do so,

A durable power of attorney is a document that allows you to give another person (called an "attorney-in-fact") the authority to make banking, real estate and other financial decisions on your behalf. It can be broad in its granting of authority or limited to specific aspects of your financial dealings. The goal of the instrument is to allow you to choose the person who will control your personal affairs in the event you are unable, instead of leaving it to the state to appoint a conservator.

How the state of Massachusetts defines durable power of attorney?

The Massachusetts statute defining a durable power of attorney says that the document must be in writing and must include the words, "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time," or "This power of attorney shall become effective upon the disability or incapacity of the principal," or similar words that convey the same idea. Unless a termination date is stated in writing, the agreement ends at the end of your life.

Why you need a health care proxy, too?

While a durable power of attorney provides significant security relating to financial matters, health care choices are another important consideration. A health care proxy is a document that allows you to name the person (called a "health care agent") you want to make life and death decisions for you should you be unable to do so yourself due to accident or illness. A designated health care agent would then be given access to your confidential medical information to make critical decisions.

Unlike a durable power of attorney, which is effectively immediately, a health care proxy does not take effect until a physician determines - and states that determination in writing - that you are unable to make or communicate decisions relating to your medical care. Massachusetts is one of only three states that recognize health care proxies instead of living wills. If you have a living will that appoints a health care agent, you need a proxy in Massachusetts. If you live in another state part of the year or travel often, you should have both.

Take the time now to get your critical affairs in order

Coupling a health care proxy with a durable power of attorney ensures that no matter what, you maintain some level of control over your life. Taking the time to prepare now will save you and your family significant heartache during a time of crisis. No matter your age or situation in life, contact an experienced estate planning attorney to discuss these critical documents to ensure your life remains in your hands.

http://www.daviaulaw.com/Articles/Who-will-make-critical-life-decisions-for-you-if-you-cannot.shtml 

For more information, please visit my website: www.daviaulaw.com or contact my office at (508) 797-3010. 

MassHealth Eligibility for Adult Day Health Participants

Adult Day Health programs are a lesser known alternative to providing care to an aging or disabled family member.  These programs offer a win/win situation for everyone in the family—from the client or member who attends the program to the family member who has primary responsibility as caregiver. Adult day Health programs afford the participant the opportunity for socialization, companionship, daily activities, exercise, nutrition, emotional support, nursing, and personal care, in addition to so much more.  It also permits much-needed respite for the caregiver, providing a break from the physical, psychological and emotional demands of providing care at home.

Nationwide, the average cost to attend an adult day health center is approximately $65.00 per day.  This of course depends on the level of care provided, as well as other factors such as meals, transportation and additional needs of each particular participant.  In Massachusetts, however, Medicaid or MassHealth provides a unique opportunity to its members for participating in an adult day health program.  As most people know, in order to shelter assets from the cost of the long-term care, a five (5) year look back period applies; meaning that someone would need to transfer assets out of his or her name more than five (5) years prior to needing care in a skilled nursing facility.  By comparison, financial eligibility for a Community MassHealth program, such as an adult day health center, does not encompass a five (5) year look back period.  This means that an individual could essentially be eligible overnight after making the requisite transfers. 

In order to be financially eligible for a Community MassHealth program, such as participation in an adult day health program, a MassHealth member is allowed to retain $2,000.00 or less in countable assets (principal residence and one motor vehicle are considered non-countable assets).  This allows a great opportunity for individuals to receive the care that they need in the community, as well as attempt to shelter and transfer to future generations assets which they have accumulated over the course of their lives.   

For more information on adult day health programs, please visit my website (www.daviaulaw.com), e-mail me (nick@daviaulaw.com), or call my office (508-797-3010).

Also, visit my estate planning blog at http://worcesterestateplanning.blogspot.com/.

Medicare v. Medicaid – A long-term care perspective

Based on the similarity of their names, confusing Medicare with Medicaid is easy. However, there are stark differences between what the programs provide to their respective participants.

Medicare is a national health insurance program for which most people 65 years of age and older can qualify.  It is most notably known for its difference coverages: Part A (hospital and other outpatient services), Part B (physician visits), and Part D (prescription drugs).  With respect to long term care coverage, Medicare will only pay for a stay in a nursing home care provisionally after a hospital stay of at least three days. In a best case scenario, Medicare will cover up to 100 days of skilled nursing facility care for rehabilitation. 

Medicaid, on the other hand, is a public benefit or entitlement program that is primarily funded by the federal government and administered by each state.  Medicaid is known as MassHealth in Massachusetts.  Upon qualification both financially and medically, Medicaid will pay for long-term care in a nursing home for as long as the resident requires said care.  If eligible for Medicaid, the nursing home resident will only be required to pay his or her monthly income to the long-term care facility less any allowable deductions.

Unfortunately, the majority of nursing home residents enter a facility without having done any planning which forces them to private pay until they are destitute.  In this way, many spend themselves into abject poverty even though, through appropriate planning, eligibility for Medicaid could have been obtained sooner and could have preserved their assets for a spouse at home or future generations.

Proper planning would consist of utilizing the 100 days of Medicare coverage coupled with Medicaid coverage, which can be obtained retroactively up to three months prior to submission of an application for benefits.  As I always like to say, “Plan in Advance to give your loved ones a chance or procrastinate and leave it up to the state!”

For more information, please visit my website: www.daviaulaw.com, e-mail me (nick@daviaulaw.com) or call me at (508) 797-3010.

Check out my estate planning blog too:  http://worcesterestateplanning.blogspot.com/

MassHealth Advocacy: When Free Isn’t Always for Me

I regularly encounter clients that ask me why should I pay you to assist with the completion and submission of a MassHealth application for my loved one.  I hear that “I can complete the application myself” or “a social worker at the hospital or nursing home where my family member is told me they would do it for free.”

First off, and sometimes the most integral part of what I do, is become the conduit between my client and both the nursing home and Medicaid office.  I can alleviate the stress of dealing with nursing home administrators and MassHealth allowing you to focus on what’s most important: that you have adequate time to visit with your loved one and ensuring that he/she is getting the best and most appropriate care possible.

Secondly, rather than simply taking your pertinent financial information and inputting it into the self-explanatory application, I will take stock of what it is that your loved one owns, put together a plan to maximize the preservation of those assets, assist you in any permissible spend down or transfer of assets, and then submit the application to MassHealth.  This is extremely important, as I have NEVER come across a person who has walked into my office financial eligible for MassHealth.  In almost all instances, some planning is necessary to obtain eligibility.  Too many times, I have seen individuals unnecessarily pay privately for care, when with a little restructuring; they would have been eligible in a short period of time.

Lastly, I am an advocate for your loved one.  I have your loved one’s best interest at heart.  I will take advantage of any opportunity the regulations afford to shelter assets and protect them for either a spouse at home or future generations.

So the next time that you hear someone say that they are applying for MassHealth herself or that he has someone that will complete the application for free, remind that person that you get what you pay for!

“Plan in advance in advance to give your loved ones a chance, or procrastinate or leave it up to the state!”

For more information on MassHealth Advocacy, please visit my website: www.daviaulaw.com or contact me at nick@daviaulaw.com or (508) 797-3010.

Check out my estate planning blog too:  http://worcesterestateplanning.blogspot.com/

Caregiver Contracts – An Unused Tool in Medicaid Planning

Most people are willing to care for a parent or loved one without any promise of compensation.  Not that this unconditional love should go unrecognized, but what if the caregiver could be fairly compensated and the recipient of the care could be spending down his or her assets in a permissible way so that the elder may be able to qualify for Medicaid long-term care coverage in the future.

This growing trend in Medicaid planning acknowledges that a caregiver has most likely compromised his or her ability to make a living to provide care for his or her parent or loved one.  Also, having the contract in place usually alleviates concerns amongst family members as the duties and responsibilities of the caregiver as listed in painstaking detail.

Before creating a caregiver contract, one should consider the following:

·        Seeking the services of an experienced elder law attorney, especially if future qualification for Medicaid is the ultimate goal.

·        What are the Caregiving Duties? The agreement should list with specificity any and all services to be provided either now or in the future (i.e., transportation to doctor’s appointments, cleaning services, laundry, etc.).

·        How will I be paid? Make sure the compensation is reasonable and in accord with what professionals in the field are charging.  For example, someone with a medical background who can provide medical care can probably charge more than someone without a medical background who is merely providing custodial care.

·        What are the tax consequences? The caregiver must report payment under the agreement on his or her tax return.

As I always like to say, “Plan in Advance to give your loved ones a chance or procrastinate and leave it up to the state!”

For more information, please visit my website: www.daviaulaw.com, e-mail me (nick@daviaulaw.com) or call me at (508) 797-3010.