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Recent Successes And News: Month: July 2022
Why You Should Use a Lawyer for Medicaid Planning
Many seniors and their families don’t use a lawyer to plan for long-term care or Medicaid, often because they’re afraid of the cost. But an attorney can help you save money in the long run as well as make sure you are getting the best care for your loved one.
Instead of taking steps based on what you’ve heard from others, doing nothing, or enlisting a non-lawyer referred by a nursing home, you can hire an elder law attorney. Here are a few reasons why you should at least consider this option:
- No conflict of interest. When nursing homes refer the families of residents to non-lawyers to assist in preparing the Medicaid application, the preparer has dual loyalties, both to the facility that provides the referrals and to the client applying for benefits. To the extent everyone wants the Medicaid application to be successful, there’s no conflict of interest. But it’s in the nursing home’s interest that the resident pay privately for as long as possible before going on Medicaid, while it’s in the nursing home resident’s interest to protect assets for the resident’s care or for the resident’s spouse or family. An attorney hired to assist with Medicaid planning and the application has a duty of loyalty only to the client and will do his or her best to achieve the client’s goals.
- Saving money. Nursing homes can cost as much as $15,000 a month. So investing in a Medicaid plan that may cost approximately one month in order to avoid ongoing astronomical nursing home costs is well worth the investment. And most attorneys will consult with new clients at little or no cost to determine what might be achieved before the client pays a larger fee.
- Deep knowledge and experience. Professionals who work in any field on a daily basis over many years develop both the depth and breadth of experience and expertise to advise clients on how they might achieve their goals. Whether those goals are maintaining independence and dignity; preserving funds for children and grandchildren; or staying home rather than moving to assisted living or a nursing home. Less experienced advisers, however well intentioned, can’t know what they don’t know.
- Malpractice insurance. While we should expect that every professional we work with will provide outstanding service and representation, sometimes things don’t work out. Fortunately there is a remedy if an attorney makes a mistake because almost all attorneys carry malpractice insurance. This is probably not the case with other advisers in the Medicaid arena.
- Peace of mind. While it’s possible that when you consult with an elder law attorney, the attorney will advise you that in your situation there is not much you can do to preserve assets or achieve Medicaid eligibility more quickly, the consultation will provide peace of mind that you have not missed an important opportunity. In addition, if obstacles arise during the process, the attorney will be there to work with you to find the optimal solution.
Medicaid rules provide multiple opportunities for nursing home residents to preserve assets for themselves, their spouses and children and grandchildren, especially those with special needs. There are more opportunities for those who plan ahead, but even at the last minute there are almost always still steps available to preserve some assets. It’s always worth checking out whether these are steps you would like to take.
To speak with an elder law attorney at Kommer Bave & Ciccone LLP call (914) 633-7400.
How to Get Into a Nursing Home as a Medicaid Recipient
While Medicaid helps pay for nursing home care, being admitted to a nursing home as a Medicaid recipient is not always easy. There are several ways to navigate the process, depending on your situation.
With the median cost of a nursing home room being more than $250 a day, most families need help paying for long-term care. Medicaid is the primary method of covering the costs for nursing home care in the United States, but in order to qualify for Medicaid, an applicant must have limited income and assets.
Generally, nursing homes will only accept patients who can pay for their care, while Medicaid will not pay for nursing home care unless an applicant is already living in a nursing home. This creates a predicament: How to get a loved one into a nursing home in order to receive Medicaid? The following are some of the methods you can use to find a nursing home that will accept your loved one:
- Private Pay. The easiest way to get into a nursing home is to be able to pay for care while the resident’s assets are spent down in order to qualify for Medicaid. Residents who can pay privately for a few months can file a Medicaid application once they are in the nursing home and start receiving benefits when the resident’s funds are below their state’s threshold for “countable assets.” Make sure the nursing home accepts Medicaid patients — and get the timing right so that the resident doesn’t run out of funds before the Medicaid application is approved.
- Medicare. Medicare provides nursing home coverage for up to 100 days of “skilled nursing care” per illness. The patient must enter the nursing home no more than 30 days after a hospital stay that had lasted for at least three days (not counting the day of discharge). The care provided in the nursing home also must be for the same condition that caused the hospitalization (or a condition medically related to it). In addition, the patient must receive a “skilled” level of care in the nursing facility that cannot be provided at home or on an outpatient basis. And finally, Medicare covers care only for people who are likely to recover from their conditions. If a loved one meets these conditions, it is possible for them to enter a nursing home and immediately apply for Medicaid while Medicare pays in the meantime.
- Medicaid Pending. There are some nursing homes that will accept a resident who has applied for Medicaid and is awaiting a response. Unfortunately, there are only a few nursing homes that accept Medicaid pending residents without some type of payment guarantee in the event the application is denied. The nursing homes that accept Medicaid pending residents tend to be those with lower ratings for nursing home quality.
When moving into a nursing home, be careful about signing a nursing home admission agreement. Nursing homes may try to get families to agree to pay their loved one’s bills if a Medicaid application is denied. Read any agreement thoroughly and have it reviewed by your attorney.
Navigating the Medicaid process is complicated. If possible, consult with the attorneys at Kommer Bave & Ciccone LLP before entering a nursing home and applying for Medicaid.
What Is Medicaid?
Medicaid is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. In addition, it covers care in a nursing home for those who qualify.
In the absence of any other public program covering long-term care, Medicaid has become the default nursing home insurance of the middle class. Lacking access to alternatives such as paying privately or being covered by a long-term care insurance policy, most people pay out of their own pockets for long-term care until they become eligible for Medicaid.
As for home care, Medicaid has traditionally offered very little — except in New York. Although New York has previously had a robust home care program, this unfortunately has changed significantly. New York, while it does offer home care Medicaid, is struggling to meet the needs of those in the community. Recognizing that home care costs far less than nursing home care, more and more states are providing Medicaid-covered services to those who remain in their homes.
Although their names are confusingly alike, Medicaid and Medicare are quite different programs. For one thing, all retirees who receive Social Security benefits also receive Medicare as their health insurance. Medicare is an “entitlement” program. Medicaid, on the other hand, is a form of welfare — or at least that’s how it began. So to be eligible for Medicaid, you must become “impoverished” under the program’s guidelines.
Also, unlike Medicare, which is totally federal, Medicaid is a joint federal-state program. Each state operates its own Medicaid system, but this system must conform to federal guidelines in order for the state to receive federal money, which pays for about half the state’s Medicaid costs. (The state picks up the rest of the tab.) This complicates matters, since the Medicaid eligibility rules are somewhat different from state to state and they keep changing. In fact, New York’s eligibility rules are changing significantly as of October 1, 2022 to implement a 30-month look back for qualification for home care Medicaid.
To be certain of your rights, consult the elder law attorneys at Kommer Bave & Ciccone LLP. We can guide you through the complicated rules of the different programs and help you plan ahead.
Why Everyone Should Have an Estate Plan
Do you have a will? A durable power of attorney? A health care proxy? If so, no reason to read on. If not, why not? Failure to create an estate plan risks causing discord in your family for generations to come.
The following are four often stated reasons for not having an estate plan:
Just Not Getting Around to It
A discussion of why everyone needs an estate plan starts with a consideration of what “estate” means and what “estate plan” means. Your “estate” is simply everything you own: bank accounts, stock, real estate, motor vehicles, jewelry, household furniture, retirement plans, life insurance, etc.
Your estate plan is the means by which you pass your estate to the next generation. This can be accomplished through a variety of instruments. Most retirement plans and life insurance policies pass to whomever you name as beneficiaries. Property that is jointly owned passes to the surviving joint owner. Trust assets go as provided by the terms of the trust.
Only property you hold in your name comes under the instructions laid out in your will. If you don’t have a will, such property passes under the rules of “intestacy” set out in state law. In general, those rules provide that your property will be divided among your closest family members.
Problems often arise when people don’t coordinate all of these methods of passing on their estate. For example, your will may say to divide everything equally among your children. But, if you put an account in joint names with one child “for the sake of convenience,” there could be a fight about whether that account should be put back in the pool with the rest of your property.
One of the most important aspects of a will is that it names an executor or personal representative to handle the probate of your estate. Litigation can develop simply because family members cannot agree on who should take on this role.
For those with small children, the will is indispensable because it permits you to appoint a guardian in case both parents pass away. It also permits you to choose a trustee to manage your estate for the benefit of your children. This person may or may not be the same as the guardian.
But My Estate Is Small
For many individuals, especially those with smaller estates, the most important document is not the will, but a durable power of attorney. Through a durable power of attorney, you can appoint someone to handle your finances in the event that you are ever unable to do so yourself. It also permits you to choose your guardian in case one is ever needed, although one of the main purposes of a durable power of attorney is to avoid such a necessity.
Similar to a durable power of attorney, a health care proxy appoints someone you trust to make medical decisions for you in the event of your incapacity.
While a will protects your estate after you’re gone, a durable power of attorney and health care proxy protect you while you’re still here.
But I Took Care of It With Joint Accounts
Joint accounts are a poor estate planning tool. It is impossible to keep separate accounts for more than one child equal. This is especially true if you become incapacitated and no longer have control over the accounts. Trying to save a few dollars by managing your estate in this fashion runs the strong risk of causing discord in your family for generations to come. Why take the chance?
But I Don’t Want to Pay a Lawyer to Draw Up the Plan
Although there are other means besides lawyers to produce an estate plan, those other means, for example software, do not have the ability to customize your estate plan to your particular needs. For example, do you have a taxable estate? Do you own significant amounts of tax-deferred retirement plans? Do you know how to fund a revocable trust? Is there anything about your estate that is unusual, such as having a child with disabilities?
If you have any questions about your estate plan, you need to see a lawyer who can customize your estate plan and address your individual issues and/or concerns.
Consult with the attorneys at Kommer Bave & Ciccone LLP to get started on your estate plan.
The Difference Between Elder Law and Estate Planning
Elder law and estate planning serve two different — but equally vital — functions. The main difference is that elder law is focused on preserving your assets during your lifetime, while estate planning concentrates on what happens to your assets after you die.
Elder law planning is concerned with ensuring that seniors live long, healthy, and financially secure lives. It usually involves anticipating future medical needs, including long-term care. Elder law attorneys can help you develop a plan to pay for future care while preserving some of your assets. They can also assist you with qualifying for Medicaid or other benefits to pay for long-term care. In addition, elder law planning can ensure that you are protected from elder abuse or exploitation when you get older or become incapacitated. Finally, elder law covers assistance with guardianship and conservatorship, if needed.
While elder law is focused on older adults, estate planning is for everyone of all ages. Estate planning attorneys help you determine what will happen to your assets after you die. Estate planners use wills and trusts to make sure your wishes are carried out after you are gone. Your estate plan can also include naming a guardian for your young children or provisions for pets. In addition, estate planners can help you avoid probate and save on estate taxes.
Estate plans can change as your circumstances change, so it is important to keep revisiting your estate plan over the years. For example, marriages, divorces, births, and deaths, as well as changes in finances, can all call for updates to your estate plan.
To get started on your estate plan or elder law planning, contact the attorneys at Kommer Bave & Ciccone LLP.
Married Couples Need an Estate Plan
Don’t assume your estate will automatically go to your spouse when you die. If you don’t have an estate plan, your spouse may have to share your estate with other family members.
If you die without an estate plan, the state will decide where your assets go. Each state has laws that determine what will happen to your estate if you don’t have a will. If you are married, most states award one-third to one-half of your estate to your spouse, with the rest divided among your children or, if you don’t have children, to other living relatives such as your parents or siblings.
In addition, without an estate plan, you need to worry about what could happen if you become incapacitated. While your spouse may be able to access your joint bank accounts and make health care decisions for you, what happens if something happens to your spouse? It is important to have back-up plans. And even if your spouse is fine, depending on how your finances are set up, your spouse may not be able to access everything without a power of attorney authorizing it.
To avoid this, it is important to make sure you have estate planning documents in place. The most basic estate planning document is a will. If you do not have a will directing who will inherit your assets, your estate will be distributed according to state law, which, as noted, gives only a portion of your estate to your spouse. If you have children, a will is also where you can name a guardian for your children.
You may also want a trust to be a part of your estate plan. It permits you to name someone to manage your financial affairs. You can name one or more people to serve as co-trustee with you so that you can work together on your finances. This allows them to seamlessly take over in the event of your incapacity. Trusts have many options for how they can be structured and what happens with your property after your death. There are several different reasons for setting up a trust. The most common one is to avoid probate. If you establish a revocable living trust that terminates when you die, any property in the trust passes immediately to the beneficiaries. This can save your beneficiaries time and money. Certain trusts can also result in tax advantages both for the donor and the beneficiary. These could be “credit shelter” or “life insurance” trusts. Other trusts may be used to protect property from creditors or to help the donor qualify for Medicaid.
The next most important document is a durable power of attorney. A power of attorney allows a person you appoint — your “attorney-in-fact” or “agent” — to act in your place for financial purposes if and when you ever become incapacitated. Without it, if you become disabled or even unable to manage your affairs for a period of time, your finances could become disordered and your bills not paid. Which would place a greater burden on your family. They might have to go to court to seek the appointment of a guardian, which takes time and money, all of which can be avoided through a simple document.
Similar to a durable power of attorney, a health care proxy appoints an agent to make health care decisions for you when you can’t do so for yourself, whether permanently or temporarily. Again, without this document in place, your family members might be forced to go to court to be appointed guardian. A living will is also important to guide your agent in making decisions that best match your wishes.
Do not assume your spouse is automatically protected when you die. Consult with the attorneys at Kommer Bave & Ciccone LLP to make sure you have all the estate planning documents you need.
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