Tuesday, July 31, 2012
Big News! We are proud to announce:
"Protect & Defend," co-authored by Evan Farr, was just released and has already made it on 4 Best Seller lists and ranked #1 in two categories! This book is making waves!
Many of the rights we enjoy as American citizens are unforeseen. Evan Farr, one of the foremost national experts on elder law and Medicaid, has teamed up with attorneys across the nation to explain these unforeseen rights.
Evan Farr's chapter is devoted to the Living Trust Plus™ Asset Protection Trust and is written in layman's terms for an easy read, though the subject matter is complex. It is meant to provide the general public with information about the capabilities and features of the Living Trust Plus™ and is an excellent tool for licensed Living Trust Plus™ attorneys to give to their own prospective clients who would appreciate additional information on the trust's true asset protection powers.
Co-Authors Include: About the Author: Yael N. Lazar, Esq., Mary King, Cary B. Bryson, Nick Nemeth, Roderick Polston, John P. Willis, IV, Anthony Parent, Jeffrey T. .Jones, James K. Gilland, John A. Cimino, Debra S. Shifrin, Francis M. Jackson, Ken Hardison, Michael Ponce, Jeffrey Andrew Luhrsen, Mark Carleton Blane, Donald Grey Lowry, George F. McCranie, IV, Damon Pendleton, Ben Glass, Gary Martin Hays, Brad Lakin, Mark Torok, Ken Nunn, Robert Dallas and Lance Drury
Friday, September 16, 2011
Medicaid complexity is a real problem. For those not familiar with program specifics, Medicaid - not Medicare - is the program Americans rely on to receive their long-term care. Long-term care is extraordinarily expensive – in fact, it is the single most expensive creditor Americans are likely to face. Unfortunately, understanding the various Medicaid rules is a monumental task for the average layperson, and to properly qualify for the program and protect one's assets, it often it takes an experienced professional and a complicated asset protection plan.
Why is Medicaid so complex? One reason may be due to the fact that Medicaid is a joint state and federal program, and planning to receive (either for you or for a client) this public benefit often involves tax planning, too. Proper Medicaid planning requires an understanding of several complex bodies of law.
While some of these quotes are humorous, it is no laughing matter that Americans, by and large, do not realize that Medicaid is available to the middle class. Protecting assets from long-term care expenses can enable a family to pass an inheritance on to their children that otherwise would not have been available; it allows for the recipient to enjoy an enhanced qualify of life while alive; and it gives peace of mind and security to the family members.
Here is a glance at what the courts have had to say about Medicaid complexity over the last thirty-five years.
The Second Circuit commented the absurdity of any law or regulation 7 subsections deep. For example:
“As program after program has evolved, there has developed a degree of complexity . . . regulations which makes them almost unintelligible to the uninitiated . . . [a] draftsman who has gotten himself into a position requiring anything like [§139a(a)(10)(A)(ii)(VIII)(cc)] should make a fresh start.” Friedman v. Berger, 547 F.2d 724 (2nd Cir. 1976).
The United States Supreme Court has called the Medicaid laws:
“an aggravated assault on the English language, resistant to attempts to understand it.” Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).
The Second Circuit calls the Medicaid statute one of:
“unparalleled complexity” in DeJesus v. Perales, 770 F.2d 316, 321 (2nd Cir. 1985).
In a case arising out of Maine, the District Court called Section 1396a(a)17) of the Medicaid statute:
“a virtually impenetrable thicket of legalese and gobbledygook.” Lamore v. Ives, 1991 WL 193601 (D.Me.)
The Fourth Circuit called the Medicaid Act:
“one of the most completely impenetrable texts within human experience” and
“dense reading of the most tortuous kind.” Rehab. Association of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994).
Medicaid complexity is a problem for all Americans. Most Americans will need some form of long-term care, and of those that do, such care may be a nursing home stay. The average private nursing home room costs nearly six-figures every year, and the average nursing home stay is close to three years. Medicaid is available to anyone who can qualify; unfortunately, there are many public misperceptions when it comes to Medicaid. Contrary to public belief, a person does not need to be "poor" to qualify.
At this point in time, the laws are so complex that it is recommended that any person contemplating long-term care speak with an experienced elder law attorney.
Image: Master isolated images / FreeDigitalPhotos.net
Wednesday, September 14, 2011
Since the Deficit Reduction Act of 2005, one of the most important strategies for Elder Law Attorneys and their clients has been the “Transfer and Cure” Strategy.
We all know that an uncompensated transfer (i.e. a gift) triggers a Medicaid penalty period (i.e., a period of ineligibility for Medicaid), and a penalty period normally means the client will end up waiting longer to receive Medicaid to pay for his or her long-term care. However, in most states the penalty period can be reduced (or “cured”) if the transferee somehow "cures" part of the transfer. This might be by giving some money back to the Medicaid applicant (either in a lump sum or over a period of time), using some of the gifted money to pay certain bills of the nursing home resident, or through other means.
This all gives rise to certain important questions, such as:
- “when should you use the “Transfer and Cure” strategy?” and
- "how much money can ultimately be protected by using this strategy?" and
- "what are the relevant variables that need to be considered when using this strategy?"
As a general rule, this strategy can be used for most unmarried clients. The amount this strategy can protect is typically between 40% and 60% of the client's assets. How much and how quickly to cure depends on many factors, including the cost of the care that the elder is receiving and the elder's monthly income.
Friday, September 02, 2011
The afflicted person may or may not be aware that they are having difficulties. Lists and other reminders can help their changing ability to remember. A routine schedule and routine ways of doing tasks can also be helpful.
Often the person and caregiver do not realize there is a health problem at this point. They may feel that fatigue, extra stress, fickleness, stubbornness or laziness are causing the problems.
Symptoms to look for
Memory Loss: The elder may begin to have problems recalling daily events, while long-term memory remains intact. S/he may repeat questions or recent comments, get lost in conversations and misplace things;
Disorientation: There is often a decline in the sense of direction. The elder may get lost in a familiar neighborhood or be unable to follow directions to the store. There may be a decline in the sense of time, such as being unable to remember appointments or the actual date;
Apraxia: The elder may forget how to use a tool or find it difficult to use tools or equipment, such as appliances, a toothbrush or eating utensils;
Anomia: The person may forget the right word or name of a person. The words may feel at the tip of the tongue, but the speaker is not able to say them;
Personality Changes: The person may seem different. S/he may be more withdrawn, frustrated, irritable, mellow, sensitive or inconsiderate of others;
Trouble With Routines: There is less ability to keep up with the daily routine at work or at home. S/he may forget what bills have been paid, or be able to handle office finances or telephone calls. At home, they may find it difficult to use a checkbook or prepare meals;
Decline in Grooming: There is a decline in grooming or personal hygiene. A previously well-groomed person may be untidy, unbathed or have uncombed hair.
Closely related words are substituted for forgotten words. When you can’t make out what a person with Alzheimer’s disease needs, point to the objects in question while asking questions like: "Do you want your purse? Your comb?" The person will have trouble understanding and following directions. Keep your sentences short and your directions clear. "Mother, fold the scarf." "Put the scarf in the drawer." "Close the drawer."
Tips and Techniques
Discuss important business during the morning when everyone is fresh;
- Focus on one topic at a time;
- Use specific words, names of people and objects;
- Do not use pronouns or general language;
- Words or events may be forgotten. Don’t take it personally if birthdays or other special events are forgotten.
Behavioral problems often occur early in the disease, before a caregiver is even aware that the person is afflicted. For instance, the person may become easily angered when a mistake is made due to memory loss. One person may lash out verbally at the caregiver when it is pointed out that she forgot to pay a bill. Another may become very angry when he asks why a favorite relative hasn’t visited lately and is told she was just there the day before.
Thursday, September 01, 2011
If you know or suspect you are at a high risk for developing cancer – or if you are one of the brave individuals or families already battling the disease – I cannot stress enough how critical it is for you implement a proper Asset Protection Plan as soon as you can. Even for those individuals who are not facing imminent crisis, planning is just as critical.
Asset Protection Planning and Incapacity Planning are the vital legal services where an Elder Law attorney guides the individual (or couple) through the complex Medicaid qualification, application, and approval processes. It may be necessary to employ a complex set of asset protection strategies, saving hundreds of thousands of dollars in many cases.
Example: The median net worth of the average 65 year-old is $232,000. If you live in Northern Virginian, the average cost of a private nursing home room in 2010 was nearly $100,000.
If planning is engaged in soon enough, assets can be 100% protected from nursing home creditors, lawsuits, and general creditors. The good news is, even if someone is already in a nursing home paying the monthly bill, their remaining assets can be protected!
“RAP” – Recognize the Risks, Abstain & Prevent, and Plan for the Future.
Here is the truth: Proper planning can protect the assets from nursing home creditors, allowing Americans from all walks of life to legally and ethically qualify for Medicaid and Veterans Benefits, passing on an inheritance if they so choose, and enjoy the standard of living and quality of life they prefer.
With proper planning, a spouse who is able to stay at home can keep all of the couple's assets and much or all income while Medicaid pays for the nursing home. The most important goal is typically to ensure that the spouse remaining at home is able to live the remaining years of his or her life in utmost dignity and not have to suffer a drastic reduction in his or her standard of living.
Tuesday, August 30, 2011
For some couples, the woman is THE decision maker, and there’s nothing wrong with that. For example, in nearly 8 out of 10 cases where married couples purchase a vehicle, it is the woman who makes the final decision. And because women outlive men by 5.4 years on average, women frequently make decisions that have long lasting effects upon their children, their spouse, and even their parents.
3 tips to help you initiate discussing parents long-term care:
Tip 1: Explain that Elder Law attorneys are not “regular” lawyers
Elder Law attorneys have deliberately selected a career in a specialized area of law to serve elders. Moreover, The Rules of Professional Conduct require lawyers to act in the best interests of their clients. The client of an Elder Law attorney is the elder. Not the children. The best Elder Law attorneys are equipped to facilitate familial harmony; they place the client’s concerns at the forefront of any discussion, and they orchestrate a plan that can protect a nest egg from the catastrophic expenses of long term care and improve quality of life. An inheritance is nice – and usually a much larger inheritance is a by-product of the plan devised by an excellent Elder Law attorney – but the first thing I explain to families I meet with is that the inheritance is not the focus. My client’s quality and dignity of life is priority #1.
Tip 2: Gather information with your parents, if possible, in a no obligation, zero pressure environment.
Parents love to do things with their kids, and adult children likewise value the time they have with their aging parents. One easy way to spend time with your parents while gathering information is to attend a free seminar hosted by a local Elder Law attorney. Don’t be afraid to research, communicate, and explain important statistics to your parents.
Tip 3: Explain easy-to-understand statistics.
Did you know that if you are over age 65: you have a 7.2% chance of having an auto accident every year; a 6.15% chance of needing to file a homeowner’s insurance claim; and a 70% chance of needing long-term care? Over half of those who need long-term care will require a nursing home.
Here is the statistic you must be concerned with: only 13% of drivers are uninsured, just 15% of homeowners are uninsured, but a whopping 90% of senior citizens are uninsured and unprotected against long term care needs. Why is it important to plan for long term care? Primarily because the expenses of long term care are catastrophic and can wipe out a nest-egg in less than a year. 50% of couples and 70% of singles are impoverished (broke) after one year of entering a nursing home.
Medicaid is a government program meant for those who plan for it. I encourage you to attend a free seminar on the subject, as it is shocking that so many smart people do not realize that Medicaid – not Medicare – can be used to pay for long term care.
One common misconception is, “We don’t need to plan for our long term care yet, we’re only 65.” Almost half of all long-term care claimants are under age 65 at the time of disability. Every day that goes by without a plan, the family is risking possible delay or even forfeiture of government benefits that are meant to pay for catastrophic long term care costs.
Talking to your parents about their long term care options can be understandably difficult, and no other generation has had to simultaneously balance so many familial responsibilities at one time. But there is a new breed of Estate Planning and Elder Law that takes a family-friendly, solution-based approach making it easier to discuss difficult subjects.
Image: worradmu / FreeDigitalPhotos.net
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