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.

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.