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

Eliminating the Need for Improvement... Beneficial Changes for Some Medicare Patients

In our spring 2012 newsletter, we stated that nursing homes may mistakenly require a resident to be improving or showing progress in order to continue to be covered by Medicare. One may see an incorrect denial of further Medicare coverage if a resident plateaus, or if the nursing facility says the resident can no longer be rehabilitated.

Now, as recently reported in the New York Times, the Obama administration pursuant to a proposed settlement of a nationwide class-action suit, has agreed to scrap a practice that required many beneficiaries to show a likelihood of medical or functional improvement before Medicare would pay for skilled nursing and therapy services.

This agreement states that Medicare will now pay for such services if they are needed to "maintain the patient's current condition or prevent or slow further deterioration," regardless of whether the patient's condition is expected to improve.

Read the full article...

The Impact of Recent Elder Law Court Rulings

Earlier this year the Supreme Court upheld the Affordable Care Act, which by-and-large ensured the preservation and continued roll-out of improvements and protections for older adults.  

These improvements include the extension of Medicaid's spousal impoverishment protections to those seeking long-term care in the community, financial incentives for states to keep long-term care recipients out of institutions, the gradual closing of Medicare Part D's infamous doughnut hole, expanded access to preventive services for Medicare beneficiaries, and the Elder Justice Act.  

The Court did, however, scale back the Medicaid portion of the law, which could mean that fewer near-elderly will have access to health insurance than was originally envisioned. The law expanded Medicaid eligibility starting in 2014 to people with income up to 133 percent of the poverty line. But in its ruling, the Supreme Court gave states the freedom to opt out of this expansion without putting their current Medicaid funding at risk.

Naturally, these decisions will impact different people in different ways depending upon a number circumstances specific to each family's situation. To determine how your family might be affected, the safest course of action is to consult with your elder law attorney.