Posts filed under 'Elder Law Planning'
November 4th, 2011
This fall, Partners in Care, one of the premier providers of home care and geriatric care management in New York City, has been hosting a series of free online seminars focused on helping you make difficult elder care decisions.
The next online seminar, “The Financial Realities of Home Care” takes place on November 16 at 1 PM EST. It will be moderated by Mary Alice Williams, an Emmy Award-winning television journalist and health educator. The online seminar includes an informative presentation by three experts in the home care field, followed by an interactive question and answer session.
The three panelists for the online seminar will be Marki Flannery, the President of Partners in Care; Paula Brancato, a representative of Northwestern Mutual and an expert in long-term care insurance; and Elder Law attorney David Cutner, a founding partner of Lamson & Cutner, P.C.
Individuals interested in learning about the costs of long-term care, and how to plan and pay for it, should plan on joining the seminar, which can be viewed conveniently and privately on your own computer. You’ll have an opportunity to send your own questions to members of the panel, and the seminar is free.
You can register for the seminar at www.caregiverseminar.org
September 26th, 2011
Lamson & Cutner has published a New Updated Second Edition of its popular and highly regarded “25 Strategies to Prevent Financial Ruin from Long-Term Health Care Costs.” A copy of the informative Special Report is available free of charge. Click here to access a free download of the report, or contact the law firm by email or telephone to obtain a printed hard copy. If you represent an agency or organization that provides assistance or services to the elderly or disabled, please call Lamson & Cutner for delivery of multiple copies that you can provide to your population and their families.
While the “25 Strategies” Special Report deals with complex legal issues and strategies, you will find that it is clearly written and easy to understand. David Cutner, the principal author of the report, explains: “I believe it is important to de-mystify the legal process, and state in plain language what we do and how we do it. It makes no sense for attorneys to speak to clients in the same way they speak to other attorneys or judges. Clients are entitled to understand what is involved when they seek our advice, so they can make an informed decision about what is best for them.”
September 15th, 2011
The NYS Department of Health has finally issued long-awaited regulations implementing changes in New York law regarding recovery and reimbursement from estates of Medicaid recipients. These changes have been very controversial because the law’s new definition of what constitutes the “estate” is in conflict with other, long-established, laws affecting estates, trusts, and real estate. In essence, under the new laws and regulations, Medicaid will seek to recover from non-probate assets, i.e., assets that have never been considered to be part of a decedent’s estate, or even to exist at all after death. A prime example is that Medicaid will seek to recover the value of life interests in real estate (which, under real estate law, are extinguished upon death). Lamson & Cutner is currently analyzing the new regulations, and will be posting additional advisories once we have a clear view of their implications.
April 4th, 2011
Two of the New York Medicaid Redesign Team’s proposals that were most damaging to the elderly and their spouses, and to the parents of disabled children, were not included in the final budget approved by the Legislature on March 30, 2011.
We can all breathe a sigh of relief that New York is not going to impose a “look back” period for gifts and transfers for Community Medicaid or Medicaid Home Care, which would have caused devastating penalties. In addition, spousal refusal and parental refusal for community based Medicaid will not be eliminated. Both of these proposals are discussed in an earlier post on this Blog.
At the same time, however, the Legislature enacted an amendment to the definition of an individual’s “estate” for Medicaid purposes, with the obvious purpose of expanding Medicaid’s ability to recover greater amounts from the estates of Medicaid recipients. The expanded definition now includes retained life estates, jointly held property, and interests in trusts.
We believe that the expanded definition is problematical in a number of respects, and will likely lead to litigation. Unfortunately, it may be some time before we have clarity from the courts regarding the reach of these definitional changes.
In the meanwhile, it may be important to have your estate plan reviewed by an Elder Law attorney.
November 30th, 2010
Many seniors currently need assistance paying their bills and managing their finances, or may need help sometime in the future. It’s important to have a trustworthy person authorized to manage your finances should you be unable to do so yourself.
For many seniors, adding a child or other loved one as co-owner on bank and brokerage accounts can be an easy and convenient way of managing those assets and making sure bills are paid on time. However, many seniors do not take into account the possible risks and potential consequences of joint ownership, and the other available alternatives that may be more in line with their objectives.
First, be aware that a joint owner will have complete access to your bank account and has the right to make an unlimited amount of withdrawals, even if it is your money in the account. A joint owner can write checks and withdraw money without your permission. This is why it is imperative to name an individual who you trust will act in your best interest.
Second, once your co-owner’s name is on the account, your money will be vulnerable to his or her creditors. For instance, if your co-owner goes through a divorce, has a business failure, or gets sued, your money will be exposed to those claims.
Third, when you die, the assets in a jointly-owned account will automatically become the property of the surviving owner. A joint owner generally has a ‘right of survivorship,’ so the assets will pass directly to him or her at your death. This can be a desirable and convenient way of passing assets at death, as long as it is in line with your wishes. However, the results can be disastrous if your intention is for the money to pass to someone else, or to be divided among several beneficiaries according to the terms of your will.
Additionally, as Elder Law attorneys, we are always concerned with possible Medicaid implications. Many people erroneously believe that Medicaid will view a joint account as being owned half by the Medicaid applicant and half by the other owner. However, Medicaid presumes that the entire account belongs to the Medicaid applicant, and the burden is on the applicant to prove otherwise. Therefore, joint ownership does not protect any portion of an account from Medicaid’s rules unless it can be proven that money in the joint account belongs to someone other than the Medicaid applicant.
A joint account may be appropriate in certain situations, however, there are several alternatives to joint accounts that can protect you and your assets in different ways.
One simple alternative is to sign a durable power of attorney, and file it with the financial institutions where your accounts are held. Your agent under your power of attorney would be able to manage your finances on your behalf, including making withdrawals and writing checks without your permission, but the assets would be owned by you alone. Your agent would have a legal duty to manage your finances on your behalf and in your best interest.
Also, if you are the sole owner on the account and have a power of attorney, you should designate beneficiaries to avoid lengthy and costly probate proceedings. By using “in trust for” (also known as “ITF”), “pay on death” (also known as “POD”) or “for the benefit of” (also known as “FBO”) designations on your accounts, your money will pass directly to the beneficiaries that you have listed after you pass away, but they will have no ownership interest during your lifetime.
Although they are beneficial for assistance with managing your assets while you are alive and distributing your assets after death, neither a power of attorney nor an ITF designation will protect your money should you need to apply for Medicaid benefits. In almost all situations, the best and most protective vehicle for safeguarding your assets is going to be a trust. A trust is a legal entity that is created in order to assume ownership of your assets and property, and hold them for your benefit during your life and for your beneficiaries after your death. A Trustee is named to manage the funds in the trust according to the terms of the document.
Once your assets are transferred to the trust neither you nor the Trustee is the owner of the funds, thereby allowing you to become financially eligible for Medicaid benefits. Additionally, the trust protects your money from your – and your Trustee’s – creditors (including Medicaid). At your death, the trust assets pass to the beneficiaries you designate within the trust agreement itself. There are several types of trusts available to protect assets and property from potential creditors, avoid probate, and keep your assets safe and available for you even if you need to apply for Medicaid services.
As you can see, there are many ways to title your assets in order to place yourself in the best possible position according to your particular needs and comfort level. It’s important that you speak to an Elder Law attorney about planning for a time when you may be incapable of managing your own affairs and placing you in the most advantageous position possible should you need to apply for Medicaid. Elder Law attorneys will work closely with you to devise a plan that works for you and in which your priorities are tantamount. If you would like advice about your specific situation, call us today at (212) 447-8690.
October 19th, 2009
A book review in The Wall Street Journal of the 2009 memoir, Welcome to the Departure Lounge: Adventures in Mothering Mother, explores the challenges in caring for elderly parents. The author or the book, Meg Federico, is a journalist who chronicles her experiences with an ailing mother and stepfather in the later years of their lives.
New York State’s highest court has referred to long-term health care costs as “ruinously expensive.” Although the review points out that Ms. Federico’s parents were affluent, the costs and sometimes unforeseen expenses associated with their care were extraordinary: “At one point, the annual budget for Addie and Walter’s care is $400,000.” They receive care in their home, with their needs attended to by a team of personal aides.
Affluent families often operate under the misconception that a mother or father cannot qualify for Medicaid because of their substantial assets or income. This is simply untrue. With proper planning, parents can transfer their assets and obtain benefits that can provide for their needs during the remainder of their lives. This is the unique advantage what Elder Law has to offer seniors and their loved ones. Heirs can receive what is left when a parent is gone.
The WSJ article clearly portrays the family’s difficulties in confronting dementia and Alzheimer’s Disease. Ms. Federico travels back and forth between her home in Canada and her parent’s house in New Jersey to assist with and coordinate their care. In a situation like this one, an Elder Law attorney can help you with presenting your case to Medicaid that both parents require home care aides.
The creation of one or more trusts may be an important part of the plan to protect your parents’ assets. With trusts, multiple objectives can be achieved, including Medicaid eligibility, protection of assets from future creditors, avoiding probate, reducing taxes, and continuous management.
You can learn more about Trusts in Strategy # 8 and # 9 in Lamson & Cutner’s free Special Report, 25 Strategies to Prevent Financial Ruin from Long-Term Health Care Costs.
May 14th, 2007
David Cutner announces that he and Carole Lamson have formed Lamson & Cutner, P.C., a law firm solely dedicated to providing a lifeline to the elderly and disabled. The firm combines resources of the founding partners’ former firms, and includes four experienced Elder Law attorneys, four experienced paralegals, and support staff.
The Best Elder Law Blog will be operated by Lamson & Cutner, P.C.
The firm’s mission is to dispel the lament “I can’t qualify for Medicaid. I have too much money.” Or, “I have too much income.” The firm’s response is “YES, YOU CAN QUALIFY” for valuable Medicaid and other public benefits with proper planning. If you need home care, or nursing home care, do not let incorrect assumptions about eligibility stand in your way of obtaining benefits. In addition, it is never too late to start planning, even if your needs are urgent and immediate.
Home care, or nursing home care, can be ruinously expensive. You do not have to “spend down” all of your hard-earned life’s savings, or jeopardize your home, in order to qualify for Medicaid. An experienced Elder Law attorney can inform you of your rights, and you can decide whether Medicaid planning is appropriate for you and your family.
At a minimum, Lamson & Cutner, P.C., recommends that the elderly or disabled should consult an experienced Elder Law attorney about creating a Durable Power of Attorney and a Health Care Proxy. These documents are essential for making sure that your wishes concerning your finances and property, and your health care, are carried out.
Look for further discussion about these issues in future postings on The Best Elder Law Blog, and review the firm’s website, www.lamson-cutner.com, for up-to-date information on issues of concern to the elderly and disabled.
