Consider using a Trust Be for Long-Term Care

November 20, 2023

More than a few seniors who are retired or nearing retirement lose sleep worrying over being able to afford the expense of long-term care, including nursing home care, which can cost thousands monthly. The fallback option for many Americans is Medicaid; according to a recent article, “Long-Term-Care planning using trusts,” from the Journal of Accountancy., Medicaid is a joint federal-state program requiring spending down assets. One option is to consider using a trust for long-term care.

To be eligible for long-term care through Medicaid, a person’s “countable” assets must fall below an extremely low ceiling—in some states, no more than $2,000, with some provisions in some states protecting the “well” spouse. States vary in terms of which assets are counted, with many exempting a primary residence, for example.

For many people, planning for Medicaid for long-term care may consider the use of an irrevocable trust. The basic idea is this: by transferring assets to an irrevocable trust at least five years before applying for Medicaid for long-term care, the Medicaid agency will not count those assets in determining whether Medicaid’s asset ceiling is satisfied.

If the planning is done wrong, there is a risk of not qualifying, thereby defeating the objective of creating the irrevocable trust. In addition, any tax planning may be undone, causing liquidity and other problems.

Some people plan to qualify for Medicaid even though they have asset levels as high as $2 million or more. Much of this may be the family’s primary residence, especially in locations like New York City, with its elevated real estate market. Costs at nursing homes are equally high, with nursing homes costing private-pay patients upwards of $20,000 a month, or $250,000 per year.

Timing is a key part of planning for Medicaid. Many estate planning attorneys recommend clients consider planning in their mid-to-late 60s or early 70s to move assets into a Medicaid Asset Preservation Trust, also called a Medicaid Asset Protection Trust.

This is because of Medicaid’s five-year lookback period. Most states have a five-year look-back period for both nursing home and home health care. If any transfer of countable assets has been made within the preceding five years of applying for long-term-care Medicaid, there will be a penalty period when the person or their family must pay for the care. The penalty is typically measured by the length of time the transferred assets could have paid for care, based on the average costs of the state or the region.

While there is no way to know when a person will need long-term care, statistically speaking, a person in their mid-to-late 60s or early 70s can expect to be healthy enough to satisfy the five-year lookback.

Why not simply make gifts to children during this time to become eligible for Medicaid? For one reason, there’s no way to prevent a child from spending money given to them for safekeeping. A trust will protect assets from a child’s creditors, and if the child should undergo a divorce, the assets won’t end up in the ex-spouse’s bank accounts.

Using a trust for Medicaid planning could be combined with gifts made to children or assets placed in trust for children, depending on the individual’s financial and familial circumstances.

The creation of a Medicaid Asset Preservation Trust is critical. The estate planning attorney must seek to accomplish two things: one, to say to Medicaid that the settlor, or creator of the trust, no longer owns the assets. At the same time, the IRS must see that the settlor still owns these assets and, therefore, receives a basis step-up at death.

If you are considering a trust for long-term care, an experienced estate planning attorney will be needed to advise you and create a Medicaid Asset Preservation Trust to meet the Medicaid and IRS requirements. If you would like to learn more about long-term care planning, please visit our previous posts.

Reference: Journal of Accountancy (Oc. 9, 2023) “Long-Term-Care planning using trusts”

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RLT can Help with Planning for Incapacity

November 14, 2023

Planning for potential disability and mental incapacity is part of a comprehensive estate plan. Women, in particular, are at a higher risk of becoming disabled, with 44% of women 65 and older having a disability. Most people understand the value of an estate plan. Nevertheless, few know how to that a Revocable Living Trust, or RLT, can help with planning for incapacity, as explained in the article “Incapacity Planning: The Hidden Power Of A Revocable Trust” from Financial Advisor.

Revocable Living Trusts are highly effective tools to protect assets against failing capacity. Although everyone should have both, they can be more powerful and efficient than a financial Power of Attorney. An RLT offers the freedom and flexibility to manage your assets while you can and provides a safety net if you lose capacity by naming a co-trustee who can immediately and easily step in and manage the assets.

Cognitive decline manifests in various ways. Incapacity is not always readily determined, so the trust must include a strong provision detailing when the co-trustee is empowered to take over. It’s common to require a medical professional to determine incapacity. However, what happens if a person suffering cognitive decline resists seeing a doctor, especially if they feel their autonomy is at risk?

Do you need an RLT if you already have a financial Power of Attorney? Yes, for several reasons.

You can express your intentions regarding the management and use of trust assets through the trust. A POA typically authorizes the agent to act on your behalf without specific direction or guidance. A POA authorizes someone to act on your behalf with financial transactions, such as selling a home, representing you and signing documents. The co-trustee is the only one with access to assets owned by the trust, while the POA can manage assets outside of the trust. Having both the POA and RLT is the best option.

Trustees are often viewed as more credible than a POA because RLTs are created with attorney involvement. POAs are often involved in lawsuits for fraud and elder abuse.

Suppose there is an instance of fraud or identity theft. In that case, RLTs provide another layer of protection, since the trust has its own taxpayer ID independent of your taxpayer ID and Social Security number.

Your co-trustee can be the same person as your POA.

Adding a trusted family member as a joint owner to accounts and property provides some protection without the expense of creating a trust. However, it does not create a fiduciary obligation, enforceable by law, for the joint owner to act in the original owner’s best interest. Only POAs or trustees are bound by this requirement.

Once a POA is in place, it is wise to share it with all institutions holding accounts. Most of them require a review and approval process before accepting a POA. Don’t wait until it’s needed, when it will be too late because of incapacity, to have a new one created.

If you know that planning for incapacity is in your family’s future, consider how an RLT can help. Talk with your estate planning attorney about planning to create an RLT and POA to ensure that your assets will be protected in case of incapacity. If you would like to learn more about incapacity planning, please visit our previous posts.

Reference: Financial Advisor (Oct. 18, 2023) “Incapacity Planning: The Hidden Power Of A Revocable Trust”

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You Need Two Kinds of Power of Attorney Documents

November 7, 2023

Wills and trusts are used to establish directions about what should happen to your property upon death and who you want to carry out those directions, explains an article from Coeur d’Alene/Post Falls Press, “Power of attorney documents come in two main varieties—do you have both?” However, the estate planning documents addressing what you want while you are still living but have become incapacitated are just as important. To some people, they are more important than wills and trusts. You need two kinds of Power of Attorney documents to have all of your bases covered.

A comprehensive estate plan should address both life and death, including incapacity. This is done through Power of Attorney documents. One is for health care, and the other is for financial and legal purposes.

A Power of Attorney document is used to name a decision maker, often called your “Agent” or “Attorney in Fact,” if you cannot make your own decisions while living. You can use the POA document to state the scope and limits the agent will have in making decisions for you. A custom-made POA allows you to get as specific as you wish—for instance, authorizing your agent to pay bills and maintain your home but not to sell it.

The financial POA document gives the chosen agent the legal authority to make financial decisions on your behalf. In contrast, a Health Care Power of Attorney document gives your agent the legal authority to make healthcare decisions on your behalf.

By having both types of POA in place, a person you choose can make decisions on your behalf.

Suppose you become incapacitated and don’t have either Power of Attorney documents. In that case, someone (typically a spouse, adult child, or another family member) will need to apply through the court system to become a court-appointed “guardian” and “conservator” to obtain the authority the Power of Attorney documents would have given to them.

This can become a time-consuming, expensive and stressful process. The court might decide the person applying for these roles is not a good candidate, and instead of a family member, name a complete stranger to either of these roles.

The guardianship/conservator court process is far less private than simply having an experienced estate planning attorney prepare these documents. While the records of the legal proceedings and the actual courtroom hearings are often sealed in a guardianship/conservatorship court process, there is still a lot of personal information about your life, health and finances shared with multiple attorneys, the judge, a social worker and any other “interested parties” the court decides should be involved with the process.

For peace of mind, have an experienced estate planning attorney explain why you need two kinds of power of attorney documents. Preparing these documents when creating or updating your estate plan is a far better way to plan for incapacity. If you would like to learn more about powers of attorney, please visit our previous posts.

Reference: Coeur d’Alene/Post Falls Press (Oct. 11, 2023) “Power of attorney documents come in two main varieties—do you have both?”

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Estate Planning can help address Nursing Homes Costs

October 26, 2023

Estate planning can help address nursing home costs. Figures from a Bureau of Labor Statistics (BLS) report published recently showed that the growth in the price of nursing homes and adult care has been especially volatile this year, reports Kiplinger’s recent article entitled, “Nursing Home Costs Soared in July.”

The national average cost of nursing homes rarely declines. The cost declined for just five months in the last quarter century (the months between 1997 and 2022). Therefore, it’s surprising to see three months of decline in 2023 (April, May, and June). Nonetheless, the total 1.2% percent dip in those three months was more than offset by the 2.4% cost increase in July.

It’s hard to determine if the July price jump was an aberration or indicative of future price increases. This unusual volatility likely shows an industry struggling to regroup after the disruptions of the pandemic, which severely impacted nursing.

Nursing home and adult care is very expensive. Most people spend over $7,000 in out-of-pocket costs yearly.

This high cost is likely due to several factors, and the increased demand from a rapidly aging population, inflation and a shortage of qualified nurses top the list.

However, there is some good news: the U.S. Government plans to direct more funding to support the nursing workforce, though the effect of the program will take time to show up in the preparedness and availability of nurses.

For most active, middle-aged people, it’s hard to imagine that you might need significant nursing care one day. However, research shows that 70% of adults who survive to age 65 need at least some long-term support before they die, and 48% receive some paid care, according to a study by The Urban Institute.

The key is to pay attention to financial planning. A senior’s thoughtfulness will let her family move them to a high-quality nursing home and likely be covered financially for a long time.

Could your family say the same thing? Do you know the range of costs in your area?

For example, the typical annual cost of a nursing home ranges from $59,495 for a shared room in Louisiana to a yearly cost of $380,000 in parts of Alaska.

While Medicare may cover some expenses, partnering with a professional is wise to get your long-term care planning on the right track. Estate planning can help address nursing home costs. If you have children, you’ll be doing them an enormous favor. If you would like to learn more about elder care, please visit our previous posts.

Reference: Kiplinger (Aug. 16, 2023) “Nursing Home Costs Soared in July”

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Immediate Annuity might be a useful Option for Retirees

October 12, 2023

An immediate annuity might be a useful option for retirees who want to add funds for ongoing expenses or are concerned about outliving their savings. They can provide a sense of security during volatile markets. However, the downsides must be considered.

An immediate annuity is, in simplest terms, an insurance plan created with a lump sum payment designed to pay a guaranteed amount for a set period. In the first quarter of 2023, sales hit $3.3 billion in the first quarter of 2023, as reported in a recent article from U.S. News & World Report, “The Pros and Cons of Immediate Annuities.” This figure, representing single premium annuities, increased by 120% for this segment from the first quarter of 2022.

Set up as an insurance plan, an immediate annuity is funded with an initial amount, and payouts begin. The funds might come from savings accounts, a 401(k) or an IRA. The tradeoffs are in the form of fees and growth limitations on the total assets if you decide to cancel the payments and retain the account balance.

Other types of annuities may be more appropriate, including deferred annuities, where the money is invested, and payouts begin later. These are useful for individuals who want market protection and have only an occasional or reasonable need for cash.

When purchasing an immediate annuity, the insurer will look at factors including the annuitant’s age and how long the payments will last. From an income perspective, you can calculate your fixed expenses and use this amount to determine your needed income.

Some annuities include a rising income stream to keep pace with inflation.

An immediate annuity might be a useful option for retirees. Payouts depend on the timeline and details of each annuity. In many cases, you can start getting payouts within a month of the deposit. However, usually you have to take it within the first 12 months. You can also ask to have payments made monthly, quarterly, or annually. You’ll also select a payout period, which may consist of a certain number of years or for the rest of your life. Many people prefer the lifetime annuity plan, meaning their payments will continue for as long as they live. If you would like to learn more about annuities in estate planning, please visit our previous posts.

Reference: U.S. News & World Report (Sep. 5, 2023) “The Pros and Cons of Immediate Annuities”

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Consider Hiring a Lawyer for Medicaid Applications

August 24, 2023

Medicaid can be a complicated and ponderous process to navigate. As with many government programs, it is easy to make mistakes that could potentially devastate your family’s finances. You might consider hiring a lawyer for Medicaid applications. Film Daily’s recent article, “Do You Need a Lawyer to Apply for Medicaid?” says that hiring a lawyer for Medicaid applications can provide many benefits. Let’s look at some of the big ones:

Expert Knowledge: Attorneys specializing in Medicaid are well-versed in the complex rules and regulations of the program. They stay updated with policy changes and can provide accurate guidance based on your unique circumstances.

Maximizing Eligibility: An experienced elder law lawyer can help structure your finances and assets to maximize your eligibility for Medicaid. They can also advise you on strategies to protect your assets, while satisfying the program’s requirements.

Streamlined Application Process: A Medicaid application can involve a ton of paperwork and documentation. A lawyer can help you gather the necessary information, complete the application correctly and submit it on time, reducing the chances of delays or mistakes.

Handling Complex Situations: If your situation is complicated, like owning a business or having multiple sources of income, a Medicaid lawyer can work through the intricacies and ensure that all relevant information is presented correctly in your application.

Appeals and Legal Support: If your application is denied or there are other issues, a lawyer can represent you in appeals or hearings. They can advocate for your rights and help resolve any disputes that arise during the application process.

While hiring a lawyer when applying for Medicaid is not mandatory, their expertise can be invaluable in navigating the complexities of the program.

A lawyer specializing in Medicaid can provide guidance, streamline the application process, and help you maximize your eligibility.

Sit down as a family and consider hiring a lawyer for your Medicaid applications. Depending on your circumstances, hiring a Medicaid attorney can be beneficial in complex financial situations, long-term care planning, dealing with denied applications, or staying informed about changing regulations.

With the right legal support, you can also increase your chances of a successful Medicaid application. If you would like to learn more about Medicaid and estate planning, please visit our previous posts.

Reference: Film Daily (July 25, 2023) “Do You Need a Lawyer to Apply for Medicaid?”

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An Attorney can help when applying for Medicaid

August 16, 2023

Medicaid is a vital program that provides healthcare coverage for individuals and families with limited income and resources. Hiring an attorney can help when applying for Medicaid. Their expertise can be invaluable in ensuring a smooth and successful application process.

Film Daily’s recent article, “Do You Need a Lawyer to Apply for Medicaid?” says that applying for Medicaid involves gathering the necessary documentation, filling out an application form and submitting it to the state Medicaid agency.

The application typically requires information about your income, assets, household composition and medical expenses. It’s important to provide accurate and complete information to avoid delays or potential issues with your case.

A lawyer specializing in Medicaid can walk you through the application process, ensure that you meet all of the requirements and provide the correct documentation.

A Medicaid planning lawyer can also help you understand any legal implications and address any concerns that may come up during the application process.

Here are some scenarios where hiring a lawyer might be a wise move:

Complicated Financial Situations: If you have complex financial arrangements or significant assets, a Medicaid planning lawyer can help you navigate the Medicaid eligibility requirements while protecting your interests.
Long-Term Care Planning: If you or a loved one requires long-term care services, a lawyer with expertise in elder law and Medicaid planning can help you develop a strategy to protect your assets while accessing the necessary healthcare services.
Denied or Delayed Applications: If your Medicaid application has been denied or delayed, a Medicaid planning lawyer can help you appeal the decision or address any issues that may have caused the delay.
Changing Regulations: The program rules and policies can change over time. An experienced Medicaid lawyer can ensure that you stay informed about any updates that may affect your eligibility or benefits.

Consider hiring an Elder Law attorney to help when applying for Medicaid. He or she may be the difference between receiving benefits and being denied. If you are interested in learning more about Medicaid planning, please visit our previous posts.

Reference: Film Daily (July 25, 2023) “Do You Need a Lawyer to Apply for Medicaid?”

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Checklist Helps Put Affairs in Order

August 15, 2023

As the Baby Boomer generation ages, so too come the very real conversations around end-of-life planning. It can be a daunting and emotionally difficult subject. A checklist helps put your affairs in order and provides you and your loved ones with some peace of mind. National Institute on Aging’s recent article, “Getting Your Affairs in Order Checklist: Documents to Prepare for the Future,” has some steps to consider when getting your affairs in order.

Plan for your estate and finances. Common documents include a will and a power of attorney. A will states how your property, money and other assets will be distributed and managed when you die. A power of attorney for finances names someone who will make financial decisions for you when you are unable.
Plan for your future health care. Many people choose to prepare advance directives, which are legal documents that provide instructions for medical care and only go into effect if you can’t communicate your wishes due to disease or severe injury. A living will tells doctors how you want to be treated if you can’t make your own decisions about emergency treatment. A power of attorney for health care names your health care proxy. This individual can make health care decisions for you if you cannot communicate these yourself.
Put your important papers and copies of legal documents in one place. You can set up a file, put everything in a desk or dresser drawer, or list the information and location of papers in a notebook. Consider getting a fireproof and waterproof safe to store your documents for added security.
Tell someone you know and trust the location of your important papers. Someone you trust should know where to find your documents in case of an emergency.
Talk to your family and physician about advance care planning. A doctor can help you understand future health decisions and plan the kinds of care or treatment you may want. Discussing this with your doctor is free through Medicare during your annual wellness visit, and private health insurance may also cover this. Share your decisions with your loved ones to help avoid any surprises about your wishes.
Give permission in advance to discuss your condition with your caregiver. You can give your caregiver permission to talk with your doctor, lawyer, insurance provider, credit card company, or bank. This is different from naming a health care proxy. A health care proxy can only make decisions if you cannot communicate them.
Review your plans regularly. Look over your plans at least once yearly and when any major life event occurs, like a divorce, move, or major change in your health.

A checklist helps put your affairs in order and gives you and your loved ones a roadmap to address any changes or issues that come up in the future. If you would like to learn more about end-of-life planning, please visit our previous posts.

Reference: National Institute on Aging (July 25, 2023) “Getting Your Affairs in Order Checklist: Documents to Prepare for the Future”

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Important to Evaluate your Planning before a Second Marriage

August 7, 2023

Second marriage, goes the saying, is the triumph of hope over experience. It’s a happy event for everyone, but different from the first time around. You might have created an estate plan during your first marriage. Still, chances are your life is a lot more complicated this time, especially if you both have children from prior marriages and more assets than when you were first starting out as a young adult. It is important to evaluate your planning before a second marriage. This is why a recent article from The Bristol Press is aptly titled “Plan your estate before you remarry.”

Here are some pointers to protect you and your new spouse-to-be:

Take an inventory of all assets and liabilities. This includes assets and debts, life insurance policies, retirement plans, credit card debt and anything you own. It’s important to be open and honest about your debts and assets, so that both people know exactly what they are marrying. Once you are married, you may be liable for your partner’s debts. Your credit scores may be impacted as well.

Decide how you are going to handle finances. Once you know what your partner is bringing to the marriage, you’ll want to make clear, unemotional decisions about how you’ll address your wealth. Are you willing to combine all of your assets? Do you want to keep your investment accounts separate?

For example, if one person is selling a home to move into the home owned by the other person, what costs, if any, will they contribute to the cost of the house? If one person has significant debt, do you want to combine finances or make joint purchases? These are not always easy issues. However, they shouldn’t be ignored.

Decide what you want to happen when you die. You and your future spouse should meet with an experienced estate planning attorney to create a will, Power of Attorney, Health Care Proxy and other documents. This lets you map exactly where you want your assets to go when you die. If there are children from prior marriages, you’ll want to ensure they are not disinherited when you die. This can be addressed through a number of options, including creating a trust for your children, making them beneficiaries of life insurance policies, or giving children joint ownership of property.

Even if there are no children, there may be family heirlooms or items with sentimental value you want to keep in the family, perhaps passing to a cousin, nephew, or niece. Discuss this with your future spouse and ensure that it’s included in your will.

Meet with an estate planning attorney. You should take this step even if you don’t have many assets. If you have children, it’s even more important. You’ll want to update your will and any other estate planning documents. If you have significant assets, you may decide to have a prenuptial or postnuptial agreement. The estate planning attorney will also help you determine whether you need a trust to protect your children.

If you had planning done in the past, it is important to sit down with an estate planning attorney to evaluate it in before to a second marriage. If you would like to learn more about estate planning for blended families, please visit our previous posts.

Reference: The Bristol Press (July 14, 2023) “Plan your estate before you remarry”

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Costly Social Security Mistakes to Avoid

August 2, 2023

Social security was created to do just what it’s title intends – to help bring some financial security to seniors beyond retirement age. With so many ways to claim benefits, especially if you are married or were divorced at some point in your life, small mistakes can add up to a big difference in the amount of Social Security benefits you receive, says a recent article, “11 Social Security Mistakes That Can Cost You a Fortune” from Nasdaq. With so many Americans relying on social security benefits to help supplement their lives, there are some costly social security mistakes to avoid.

Not checking your earnings record during your working life can add up to significant losses. Even if you’re decades away from claiming, you should check your earnings record annually since this is what Social Security benefits are based on. Common mistakes include employers recording incorrect earnings or earnings not showing up because you changed your name and the name change wasn’t processed correctly.

Check your statement annually to avoid losing the right number of benefits because of earnings record mistakes. If you see an error, send proof of your earnings to the Social Security Administration. You might submit your W-2 form if you’re a salaried employee or your tax return if you are self-employed. Once the SSA verifies your claim, your record will be corrected. This is a “sooner is better than later” task because you may not have a paper trail going back 30 years.

Another mistake people make is not working long enough. To qualify for Social Security, you need at least 40 work credits. Taxpayers earn up to four credits each year based on earnings. For example, in 2023, you must earn $1,640 to earn one credit or $6,560 to earn four credits. Benefits are calculated based on the average of the 35 highest earning years. If you haven’t worked for 35 years, $0 will be averaged for each year you don’t have earnings.

It’s wise to do the calculations for Social Security before retiring. As you approach your retirement date, check your earnings statement first to be sure you have enough credits to qualify for Social Security. If you don’t have 35 years, consider working another year or two. If you worked at a job where you weren’t paying into Social Security, adding another year of work could ensure you qualify and may also boost your monthly benefit amount.

Taking Social Security too early can take a big bite out of benefits. While everyone eligible can start taking benefits at age 62, for everyone born after 1959, the reduction for benefits at age 62 is 30%. This lower benefit is permanent and won’t increase until you reach Full Retirement Age (FRA). It’s best to wait at least until FRA. If you can wait past FRA, your benefits could increase by as much as 8% per year up to age 70.

Another mistake is waiting too long to claim benefits. If you live to the average life expectancy, it won’t matter if you claim benefits too early or late. The amount of the benefit reduction for claiming early and the increase in delaying a claim evens out. But if you are in poor health or have cash flow trouble, a benefit check at a younger age could be the right move.

If you file for Social Security benefits solely on your earnings record, you might miss out on a larger benefit. Let’s say you were a stay-at-home parent while your spouse worked. You may not have enough work credits to qualify, or your benefits may be small. However, you could still qualify for benefits under your spouse’s work record. Check to see how much you would be eligible to receive under your spouse’s work record before deciding how to claim benefits.

If divorced, you might claim benefits under your ex-spouse’s earnings record if you meet all the requirements. Suppose the marriage lasted at least ten years. In that case, you are 62 or older, unmarried, and your ex-spouse is eligible to receive Social Security retirement or disability benefits. Your benefit from your work is less than what you would receive under your ex-spouse’s earnings record; it’s worth exploring this option.

If you are married, it’s best to coordinate claiming strategies with your spouse. A low-earning spouse could start claiming benefits based on the higher-earning spouse’s income at full retirement age. Meanwhile, the higher-earning spouse delays benefits to increase retirement credits.

Finally, remember that up to 85% of Social Security benefits could be subject to federal income taxes if you earn substantial income from wages or dividends. The percentage of benefits subject to income taxes depends on the couple’s combined income, which includes the household Adjusted Gross Income (AGI), any nontaxable interest income, and half of your Social Security benefits. The best way to avoid these costly social security mistakes it to make sure you are working closely with your estate planning attorney and financial advisor or CPA. If you would like to learn more about social security benefits and estate planning, please visit our previous posts.

Reference: Nasdaq (July 2, 2023) “11 Social Security Mistakes That Can Cost You a Fortune”

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Category: Elder Law

Consider using a Trust Be for Long-Term Care

RLT can Help with Planning for Incapacity

You Need Two Kinds of Power of Attorney Documents

Estate Planning can help address Nursing Homes Costs

Immediate Annuity might be a useful Option for Retirees

Consider Hiring a Lawyer for Medicaid Applications

An Attorney can help when applying for Medicaid

Important to Evaluate your Planning before a Second Marriage

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