Caretaker Resources... Part 2

In our previous post we referenced some of the online tools that can help you generate advanced directives; we also noted that it is very important to execute a health care power of attorney in accordance with state law requirements.  

For example, New Hampshire along with four other states has unusual formalities which would likely cause any such computer generated health care power of attorney to be invalid.   For that reason, we recommend that you execute your advanced directives through your physician’s office or through your estate planning/elder law attorney’s office. 

However, if you would like to explore some of these websites, they include:

• Five Wishes (www.agingwithdignity.org)
• Caring Conversations (www.practicalbioethics.org)

Caretaker Corner: Planning Tools

There are many tools available that can help you and your loved one think about the important questions related to health care decisions.   Here are some websites that may help you get the conversation about advance care planning:

• The Conversation Starter Kit 
• Consumer Toolkit for Health Care Advance Planning:This website helps individuals discover what is truly important to them in the face of a serious illness. It even has a smartphone app you can download  
• PREPARE web site

There also are tools online that will generate advanced directives for you. However, it is very important to execute a health care power of attorney in accordance with state law requirements.

Estate Tax News!

The IRS has announced that the estate tax exclusion amount for the estate of those passing away in 2015 will be $5.43 million compared to $5.34 million in 2014. The lifetime tax exclusion also rises to $5.43 million, but the annual gift tax exclusion remains at $14,000.00.   Remember, this only applies to estate tax. There are no exclusions for gifts made within 5 years under the Medicaid rules.

Elder Law Questions

In several of our 2012 posts we answered a frequently-asked question about elder law, and also listed some of the components associated with our elder law practice.

Simply stated, our elder law practice involves helping individuals and families deal with a wide variety of issues including long term care, medical directives, incompetency, guardianship, disabilities, asset protection and Medicaid.

At Curtin Law Office, our services include reviewing estates for long term planning purposes, creating special needs trusts for disabled individuals and addressing concerns relating to the guardianship of a loved one. We also assist our clients with navigating the complicated legal waters of Medicaid.

Since many families are concerned about the high cost of nursing home care, we provide clients with advice relating to asset protection, should they require long term care either in a nursing home or at home. We also help to protect the community spouse’s assets and income, which may involve representation at elderly services and going to court for increased benefits.

Many people are unsure about the scope of elder law services, and we are happy to answer any questions you may have - please feel free to contact us!

Who Takes Care of the Caregiver?

Do you know a caregiver? 

If so, a thought-provoking short article published on the "Getting Balanced" blog shares an innovative idea on how to make things better for caregivers.  

When speaking to a caregiver, the post suggests, many of us feel generally sympathetic towards their situation and are inclined to say one or both of the following: “Please let me know if there is anything I can do.” and/or “Please remember to take care of yourself” to which you will receive the same answer to both: “I will”.  P.S. they won’t.  

This is not to say that these genuine affections aren’t appreciated, because believe me they ARE!

The sad truth, however, is that caregivers often end up living each day with their head barely above the water and they simply don’t remember your offer.  That is unless you phrase the intent with a slightly more realistic view of the situation.  One that will really slap them across the face, because when you say it…. and I mean really say it……”hey your situation really is difficult, how about 20 minutes to vent judge free” they will always remember your act of kindness, even if phrased in what might appear as harsh to an outsider.  

NAELA News

The National Academy of Elder Law Attorneys (NAELA) held its annual conference earlier this summer in Arizona and Attorney Jennifer Holmes-Griffin was in attendance.

 
We are now preparing a summary of her thoughts from the conference, along with additional elder law updates, and will be sharing them as well as some helpful insights relating to estate planning in upcoming posts and newsletters.                                                                 

Two More Good Reasons to Plan Your Estate

• When you pass away, your assets will be distributed the way you want. This is not always the case. If you do not have a will or trust, your estate may be distributed in accordance with the NH statutes, which may not be consistent with your wishes. This is especially true with 2nd marriages
                                             
• Peace of mind. Having a proactive estate plan provides you with the comfort of knowing that, should something happen, you have a team in place to carry out your wishes and intentions

Caregiver Thoughts

Did you know that according to the Kaiser Health News that the number of Americans with Alzheimer's will almost triple by 2050?   As baby boomers enter their "golden years," the number of people afflicted with the disease is expected to reach millions more than previously anticipated — 13.8 million by 2050.                                                  

This is not encouraging news, but knowing this does give people the opportunity to take proactive steps with respect to their estate plan now.

Read full article.

Two More Good Reasons to Plan Your Estate

As noted in our previous post, people often ask about why it is important to have an estate plan. Here are two more good reasons:

• Allows you to protect yourself and your loved ones in the event you become disabled. Without powers of attorney for financial matters and health care, if you become disabled, your loved ones will be dealing with the courts, which is costly, time consuming and stressful.
  
• Save your heirs taxes, time in settling your affairs, surety insurance premiums and legal and accounting costs. Did you know that the tax rate for accumulation trusts has increased significantly under recent changes to our tax laws and particularly under Obamacare? It is important that if you have a trust that you have it reviewed to ensure that the income is distributed, not accumulated.

Two Good Reasons to Plan Your Estate

People often ask about the importance of creating their estate plan.

Naturally the various reasons why a family should do so will vary depending upon their circumstances. Generally speaking, here are two good reasons to plan your estate:

1. Allows you to protect any inheritance from children's divorces and lawsuits. Trusts can be drafted so that the inherited assets can be protected from a bad marriage, or a personal claim.                                    
2. Assurance that a disabled child or loved one will be taken care of and won't lose public benefits, if needed.    

We'll provide additional "good" reasons to plan your estate in our next post...                                  

Avoiding Probate...

There are a number of different ways of holding assets that will avoid probate. 

The simplest is probably just joint ownership, such as a piece of real estate held as joint tenants or a bank account held jointly. This type of assets will pass automatically to the other joint owner when the first owner dies – but keep in mind, there will still be a probate at the second death. 

Another way to avoid probate is by assets which have designated beneficiaries, such as an insurance policy or a retirement plan (such as an IRA). These assets will pass to those beneficiaries when the owner of the asset dies.

Still another way to avoid probate is to hold assets in a revocable trust.

Do I need to do estate planning with an attorney?

Most people will benefit from a properly drafted estate plan. Even if a person has modest assets, the other documents created in the estate planning process, such as the durable power of attorney for financial matters, and the durable power of attorney for health care, are of great benefit in assisting a person's family in administering his or her affairs should he or she become ill or incapacitated. Beyond that, a will, or in many cases, a trust, is very helpful in creating an orderly way for assets to pass when someone dies.

As far as using an attorney is concerned, while it is true that many of the documents that an estate planning attorney will use can be found in very simple form in a bookstore or online, these documents, when used by a non-lawyer, will not be able to encompass the complexities of particular individual situations, and may contain \"boiler plate\" language that is not at all what the person intended. In addition, these forms may not even be valid in the state where the person using them resides.

Another Legal Resource: Elder Law & Estate Planning Check-up

Wondering how well-protected you might be with respect to estate planning or elder law?

If so, the answers to your questions are easily accessible on-line at no cost...

Continuing with the theme of our previous post (i.e., on-line legal resources), an easy-to-use tool you might find helpful is our "Elder Law & Estate Planning Check-up," which can be easily accessed on our web site.

If you'd like to take the free assessment, here are some instructions that might make it easier for you:

1. Follow the link to our web site
2. Scroll to the bottom of the page
3. Look for the ??? (question marks) on the right side
4. Click the "free on-line assessment" link

Legal Resources

Findlaw.com is a very good and easily-accessible legal resource. The highly-trafficked site contains useful information about the law for lawyers, businesses, students and individuals.

Here's a quick link.

In addition, if you're wondering how well-protected you might be with respect to estate planning or elder law, you might take this free online assessment on our web site.

What is Probate?

Some time ago, one of our posts referenced the reality that estate planning is important for people of "all ages," not just for those in there sixties.

But taking a more general view, people often ask, "What is probate, anyway?"

Very simply, probate is the process by which a person's assets change hands at their death. If a person dies and his or her will says that all assets are to go to the children, the children cannot take possession of those assets until the will and other papers have been filed with the probate court, and the probate court has given its approval.

The whole process takes at least six months, and often more.

Gifting Considerations

Gifting can have serious consequences, in the event a person needs nursing home care and doesn't have enough funds to pay for his/her care for 5 years.

As we discussed in a previous post, there is a five (5) year disqualification period for Medicaid purposes for any improper transfer or gift. The question is what constitutes an improper transfer?

• Giving away assets for less than FMV unless such transfer is exempt under the rules; paying for your grandchild's education, your daughter's new car, and/or giving each of your children $14,000.00 for Christmas every year are all improper transfers
   
• Adding a child or another third party as a partial owner/owner of your property
   
• Selling assets for less than FMV; i.e., my car was worth $10,000.00, but I gave it to my grandson for $2,000.00
   
• Purchasing an annuity that doesn't comply with the Medicaid rules
   
• Paying a family member for services without a written contract
   
• Disclaiming assets from an inheritance

Unfortunately, the Medicaid system's holiday spirit can be more like Ebenezer Scrooge's. This being the case, if you are contemplating any "improper transfers" and there is any possibility that you or your spouse could need nursing home assistance down the road, it is important to contact your elder law attorney prior to doing so.

Changes to NH Advanced Directives

The New Hampshire legislation has enacted changes to advanced directives relating to medically administered nutrition and hydration. These changes became effective on January 1, 2014. 

The intent of the legislature was to clarify the definition of medically administered nutrition and hydration and include it under the definition of life sustaining treatment. 
                                      
Unfortunately, while life sustaining treatment is defined to include medically administered nutrition and hydration in the statute, medically administered nutrition and hydration is not included on the definition on the proposed new advanced directive form. Furthermore, the legislature inadvertently neglected to change the disclosure form which specifically states that if you want to give your health care agent the power to withhold or withdraw medically administered nutrition and hydration, you must say so in your directive. Otherwise, your health care agent will not be able to direct that. This is problematic since a question relating to medically administered nutrition and hydration does not exist on the new health care power of attorney.                                          To resolve these issues, it is thought that the legislature will be making further changes to the statute in its upcoming session. For these reasons, we have modified our advanced directives slightly, but until the legislature addresses the present ambiguity and conflict in the statute, our advanced directives still include a question that specifically addresses medically administered nutrition and hydration.                                            We will continue to keep you updated.

Caregiver Questions?

As noted in our previous post, holidays or the beginning of a New Year are often good times to initiate conversations with loved ones about difficult topics, one of which is end of life wishes.

Here are a few ideas about important issues you might want to discuss:

1. These end of life wishes may include: Who should make the decisions regarding health care/financial matters when your loved one cannot? What medical treatments are acceptable? What are not? Whether or not your loved one wants to be resuscitated? Where your loved one wants to be in the event of a terminal illness?
2. Ensure that your loved one executes a health care power of attorney and financial power of attorney. If he/she already has these documents, they should be reviewed by an elder law attorney to ensure that they are in order.
3. How does your loved one want his or her assets to be distributed after death? Are the assets titled appropriately? Have steps been taken to minimize probate upon death? Are they consistent with your loved one's wishes? What is important to your loved one? Simplicity? Protecting his/her spouse? Providing an inheritance for children? Protecting a special needs beneficiary? Other concerns?

Questions relating to end of life topics can also be initiated by an elder law attorney. Our office, when possible, encourages family meetings so that everyone is on the same page. We find that good communication can often alleviate conflict and make planning easier for all involved.