Caregiver Conversations?

Often holidays are a time when family and friends get together and this being the case, it can be a good time to initiate conversations with loved ones about difficult topics, one of which is end of life wishes.  

Encouraging your loved one, not only to speak to you, but to speak to all family members about his/her wishes so that everyone is on the same page can minimize your stress down the road.                                                                                                                           

More Gifting & Medicaid-Related Misconceptions

Speaking of gifting, many people think that they cannot give anything away and receive Medicaid.  

 

Others are under the impression that inheritances are protected if the other spouse goes into a nursing home, or that "protected" assets pursuant to a prenuptial agreement will not be countable if the other goes into a nursing home.

However, these common assumptions are NOT true.

 

The Medicaid rules do provide some exceptions to the disqualification rules and therefore, some asset transfers are not penalized. For information relating to these exceptions, it is important to consult an attorney who is familiar with the laws of Medicaid.

Gifting Misconceptions

Many people are under the impression that individuals are allowed to make annual gifts of $14,000.00 (current annual gift tax exemption) to their children every year without any consequences.

However, this tidbit of "common knowledge" is false!

Although there are no consequences to making a $14,000.00 gift from a federal gift tax perspective, there is an entirely different set of rules from a Medicaid perspective which can create adverse consequences. Making gifts to your children every year could have a significant impact on the your and/or your spouse's eligibility for Medicaid. Under the Medicaid rules, there is a five (5) year disqualification period for all gifts made and there are no minimum gift amounts.    This being the case, if you are contemplating giving a gift to a child or to another third party, it is important to consult not only with your accountant, but also with an elder law attorney so that you have an understanding of the impact of that gift on Medicaid eligibility.

Guardianships Can Apply to Anyone at Any Age

People often think about guardianships as applying to children, but they can apply to anyone at any age.  

For example, did you know that when your child turns eighteen (18) years of age, you no longer have the legal authority to make heath care and financial decisions for him or her unless your child appoints you to act for him or her? 

  

Do you know that the same is true for your spouse as well, and that if you do not have a document that allows your spouse to do so, your spouse cannot access your retirement accounts, or the cash in your life insurance policy, if needed? 

 

The legal documents that allow you to make decisions for someone else are called a health care power of attorney and a financial power of attorney.  These documents can significantly minimize stress for family and friends down the road. It is also important that these documents be drafted correctly. 

Were you also aware that in New Hampshire an agent under a financial power of attorney cannot make gifts unless the document specifically grants the agent the power to do so?  

An adequate gifting provision can be a very important tool with respect to long term care planning and the protection of the healthy spouse. If a person does not execute those documents prior to becoming incapacitated, or if the documents do not contain the correct language to allow for planning, a guardianship over that person becomes necessary. Guardianships can be stressful, time consuming and costly. For those reasons, we recommend that everyone 18 years or older execute these documents.

Legal Update on Healthcare Cost & Liability

Earlier this year, we updated you on a bill in the New Hampshire legislature that provided assisted living facilities and nursing home facilities with added legal rights to pursue recovery of costs of care rendered to a resident of such a facility.  

 

As we mentioned above, that bill is now law. Under the new law, causes of action by the facility include the following:

• if a fiduciary is negligent in filing and completing a timely application for Medicaid on the resident's behalf, the fiduciary shall be liable;
• if the fiduciary fails to pay the resident's cost share to the facility, the fiduciary shall be liable; or
• if the resident is not able to receive Medicaid assistance due to a transfer of the resident's assets within the five (5) year Medicaid look back period, the person who received the assets from the resident shall be liable at the Medicaid rate for services incurred during the asset transfer disqualification period.

New Care Givers - Part 4

We have been posting ideas for newer family care givers, with hopes of helping people more easily adapt to these life-changing situations.

 

Along those lines, you might find it helpful to take advantage of community resources such as Meals on Wheels and adult day care programs.

 

These resources are available so that you don't have to do everything yourself, and to give you a break.

 

You can also see if there are caregiver classes and workshops offered in your community your local Caregiver Resource Center or Area Agency on Aging. These education programs will help you feel more confident and make the time you spend caregiving easier for both you and your loved one.

New Care Givers - Part 3

Continuing with our caregiver theme, if you're just starting out as a family caregiver, it's hard to know where to begin.

In our previous post we identified two initial steps you might consider taking to get started in a positive and productive way. 

Another suggestion you might find helpful is to invite family and close friends to come together and discuss your loved one's care. If possible, your loved one should be included in the meeting.

When you convene, you might list the tasks that are needed so they can be more easily divided up. Let everyone discuss their concerns, as well as how much and what kind of help each person can offer.

As the primary caregiver, it's best for you to focus on accepting what assistance your friends and family are offering, even if it's not exactly what you had in mind.

New Care Givers - Part 2

As noted in our previous post, if you're just starting out as a family caregiver, it's hard to know where to begin. Here are two initial steps you might consider taking:

1. Start with a diagnosis.  If your loved-one is going through a noticeable personality change, has become more forgetful, or seems consistently out-of-sorts, take them to a physician.
2. Talk with your loved-one about their situation, health, financial circumstances and health-care wishes or expectations. If he or she is able to complete a Durable Power of Attorney for finances and healthcare, assist them in meeting with an elder law specialist to create these documents.

Are You a New Caregiver?

Recent statistics indicate almost one-quarter of American households provide care to relatives or friends age 50 or older.

If you're just starting out as a family caregiver, it's hard to know where to begin. Perhaps you've only recently realized that a loved one needs assistance, and is no longer as self-sufficient as he or she once was; or perhaps there has been a sudden change in a loved-one's health.

If so, it's time to consider and take certain action steps.

You might begin by taking stock of the people, services and information that will help you care for your loved one. The earlier you find support, the better.

 

We will share additional ideas for new caregivers over the next few posts.

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Fiduciary Defined

Sometimes people ask for a more clear definition of the term fiduciary, and we came upon this straightforward definition recently and thought we would share it with you.

A fiduciary is an individual, corporation or association holding assets for another party, often with the legal authority and duty to make decisions regarding financial matters on behalf of the other party.

It is usually best to consult your attorney or a trusted advisor if you feel you or your family could benefit by entering into a fiduciary relationship.

Could Your Family Benefit From a Fiduciary?

Over the past several years we have frequently been called-upon to serve in a fiduciary capacity for clients.

As you may know, a fiduciary is a legal or ethical relationship of trust between two or more parties; one party acts in a fiduciary capacity to the other one, who vests their confidence, good faith, reliance and trust to the fiduciary, whose aid, advice or protection is sought in some matter.

In such a relation, good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts. A fiduciary duty is the highest standard of care at either equity or law.

Several of our earlier posts have referenced the challenges many families face when caring for aging parents or settling their estates. Should your family encounter stress or discomfort due to these or similar circumstances, it can be comforting to know that a trusted advisor such as your estate planning or elder law attorney can also serve in a fiduciary capacity.

Caregiver Series: Three More Critical Areas of Focus

As many of you are well aware, caregiving can be an emotional rollercoaster and there is often the inclination to forget one’s own needs.  

In one of our April posts we noted three areas in which caregivers should take care of themselves. Here are three additional and equally-important considerations for family caregivers:

1. Join a support group.
2. In addition to talking to your loved one's physician about the needs of your loved one, talk to your physician about your needs and what is going on with you.
3. Manage your stress, exercise, get respite and take time for you.

  

Son Liable for Nursing Home Bill Under Filial Responsibility Law

A Pennsylvania appeals court recently found a son liable for his mother's $93,000 nursing home bill under the state's filial responsibility law.

His mother entered a nursing home for rehabilitation following a car accident. She later left the nursing home and moved out of the country, leaving a large portion of her bills unpaid. She filed an application for Medicaid, which is still pending.

The nursing home sued the son, under the state's filial support law, which requires a child to provide support for an indigent parent. The trial court entered a verdict in favor of the nursing home, despite the son's appeal arguing the court improperly put the burden of proving his inability to support his mother on him, and that the court should have considered alternate forms of payment such as Medicaid.

However, the verdict stood, as the Superior Court stated the law does not require the court to consider other sources of income or to stay its determination pending the resolution of a Medicaid claim.

Read full article...

Impact of American Taxpayer's Relief Act (ATRA)... "Portability"

One of the most significant changes associated with The American Taxpayer's Relief Act (ATRA) is that the "portability" of the federal estate tax exemption between married couples has become permanent and inflation-adjustable. 

While this is generally good news for married people (in 2013, a married couple can pass on up to $10.5 million to their heirs free from federal estate taxes), there are potential complications in situations involving second or third marriages.

Surviving spouses might also be required to file certain IRS forms, or run the risk of losing the deceased spouse's exemption.

Three Important Areas of Focus for Caregivers

As we've noted in previous posts, caregiving can be an emotional rollercoaster and there is often the inclination to forget one’s own needs.  

Here are three important areas in which caregivers should take care of themselves:

1. Ask for and accept help, you cannot do it alone.  It can take a village.  There are many resources available.  Don’t wait until you are exhausted and overwhelmed. 
2. Information is power; Be proactive, see an elder law attorney, review and discuss finances with a financial advisor; research benefits such as Veteran’s benefits and explore options such as daycare and home assistance.
3. Consider your own needs, “put your oxygen mask on first.”

Elder Law 2013 - Many Changes!

The American Taxpayer’s Relief Act (ATRA) of 2013 has brought about an new tax paradigm in which planning must focus on capital gains, asset protection, state tax issues, income tax issues and Medicaid planning, all of which fall under the elder law umbrella.  

This will create new challenges for families as well as estate planning generalists that are not experts in the elder law component of estate planning.

We attended this year’s Heckerling Institute for Estate Planning conference in Florida because, more so than ever before, the estate planning and elder law landscape has changed, having been impacted by a number of factors, including the ATRA and a continually-aging U.S. population  in which nearly 10,000 Americans turn 65 every day!

We will share developing perspectives about elder law in our upcoming posts based on the above-listed changes.

Funding Your Living Trust

People often create living trusts to help avoid probate.

However if a trust is not funded on a timely basis, the family may still need to appear before the court, which of course is what they were hoping to avoid in the first place!  Other complications ranging from time delays, bonding and filing fees or additional legal fees may also arise. 

Unfortunately, in many cases the funding step is the responsibility of the family rather than their estate planning attorney. If so, it is important to realize that "creating" the trust is only the beginning, and the funding step should be taken seriously and be completed on a timely basis.

2 More Key Questions for Family Caregivers

In addition to the questions listed in our previous few posts, here are two more key questions you might consider when planning for taking care of an elder family member:

• Am I living a healthy lifestyle and taking care of myself?
• Do I have a plan in place in the event of an emergency?

It is often difficult to answer these questions objectively, yet the issues can be of critical importance over time. Therefore, these questions must be taken seriously, and might best be considered with the help of a trusted advisor. 

There are many resources available to help you with these issues. Please contact your elder attorney for assistance.

Elder Law Caregiver Series: 5 Additional FAQ

Continuing with our series of posts that relate to planning your approach to elder care, here are five additional questions that are frequently-asked:

• Have I communicated my wishes to my loved ones regarding end of life decisions?
• Do I expect family members to help me as I age?
• What supports are available to help me live independent from my family?
• Will I be able to take care of my own needs without help from other family members or government programs?
• Do I have knowledge about the resources that are available to me to assist with my planning?

Elder Law Caregiver Series... 5 Key Questions

As we age, for planning purposes, people often ask about the questions they should be asking themselves and their loved ones. Here are some questions for you to think about, which might help you identify goals and what is important to you.   

• Do I want to leave an inheritance for my children?
• Do I want to make sure my spouse is taken care of?
• Do I want to stay in my own home?
• If I need help making decisions relating to my health care or finances, do I have the legal documents in place without the need for a guardianship?
• If I have a disabled child, do I have the planning in place to ensure he/she is taken care of after I am gone