Archive for the ‘Coastal Senior’ Category

Coastal Senior is a monthly periodical covering the South Carolina and Georgia low country.  Bob Mason is its legal columnist.

This is a column for the contrarians among us who will insist, against mounds of advice, on creating maximum legal havoc whenever possible. Here are ten great ways to insure a successful train wreck.

Great Idea One: Do not have a will. Let state law determine how assets will be divided (they won’t all go to a spouse if there are any children). Without a will many valuable planning opportunities are missed, thus insuring maximum havoc.

Great Idea Two: Do not have an effective power of attorney. Without a power of attorney, a conservatorship may be the only option, which will be expensive and subject the conservator to court supervision and bonding.

Great Idea Three: Sign over all property to the kids if bad results are the goal. Mom may believe she is protecting her property, but she is subjecting the property to the liabilities and risks of the kids (divorce, anyone?), not to mention that some of the kids may be thinking of moving to Rio. Giving the property to the kids can also insure they pay maximum capital gains taxes when they sell the property. Certain types of trusts are a much better alternative, but not as much fun if creating maximum damage is the goal!

Great Idea Four: Skip the health care advance directives. Let everyone argue among themselves to decide who gets to make health care decisions.

Great Idea Five: Do not do any long term care planning. Buying long term care insurance is way too responsible. Also, it is better to wait until there is a crisis (Dad has gone into the nursing home) because at that time there are fewer options and any course of action will likely be more expensive.

Great Idea Six: If there is a disabled child, duck parental responsibilities and avoid taking advantage of the many planning opportunities available for a special needs child. Disinherit the child and leave everything to the siblings. Maybe “they’ll do the right thing”.

Great Idea Seven: Carry inadequate insurance. This is a real winner! Do not carry a good Medicare supplemental policy so that there will be maximum exposure to whatever Medicare does not cover (which is plenty).

Great Idea Eight: Do not do any planning after a “late” second marriage, especially if there are children from the previous marriages. In this manner a perfect storm of battling families can be hoped for. Also, treasured family assets can be used to pay for the nursing home expenses of old Whatsisname instead of going to the kids.

Great Idea Nine: Do not, under any circumstances, update an old estate plan. Laws may change, but the dedicated Train Wrecker knows that he need never change!

Great Idea Ten: Never, ever seek good professional advice. With good professional assistance things may go too smoothly. If you absolutely must have some help, limit expenses to less than $100 and buy something online. Or better yet, seek the advice of a neighbor.

Bonus: Do not do anything.

Coastal Senior is a monthly periodical covering the South Carolina and Georgia low country.  Bob Mason is its legal columnist.

For many people, Medicaid may be the only financing option for nursing home level of care. Medicare has limited benefits. Most people do not own long term care insurance. And for most, private paying $6,000 a month is not an option.

Qualifying for Medicaid is another matter. It can be difficult . . . or it can be easy. Here is the easy answer along with some free legal advice. Fix up the house, buy a new car and simply spend the rest down on the spouse’s nursing home care. When everything has been spent down, go apply for Medicaid.

Is that the smartest approach? No. But the advice was “free”! Also, the nursing home and the Medicaid people in Atlanta will love you.

The better way just may be a bit more difficult. While every case is different, many strategies can save a tremendous amount of money, not to mention aggravation and worry.

The answers do not come easily. As the United States Supreme Court observed in the Schweiker v. Gray Panthers case, the “Byzantine construction” of the Social Security Act (of which Medicaid is a part) makes the rules and regulations “almost unintelligible to the uninitiated”.

You’ll need a guide with the knowledge and experienced to shepherd you through the process.

In addition to a thorough understanding of the nuances of the Medicaid rules, many of the successful strategies require an advanced understanding of trust law, taxation, real property law and the interconnections among Medicaid and other programs (VA benefits, for example).

Is it necessary to hire an attorney to complete a Medicaid application? No, not if the “easy” answer mentioned above will suffice.

Will people advise that it is not necessary to hire an attorney? You bet! Occasionally it is someone with a local Department of Family and Children’s Service office. More often it is a nursing home.

The problem with that sort of advice is both parties have a vested interest in keeping someone on “private pay” as long as possible. It is not in their interest to move someone to Medicaid.

Further, many, if not most, nursing home business office staff who offer to complete (sometimes they’ll insist on completing) a Medicaid application do not have more than a basic understanding of the complex rules and advantageous strategies available.

Also, neither has the knowledge, skills and ability, much less a law license, required to draft trusts, devise appropriate estate plans and stand by to advocate for you (in court if necessary) should the need arise.

Finally, if a lawyer is “the way to go” keep in mind that lawyers, like doctors, are not all the same. A great attorney in one area of the law may not have any idea of what to do with Medicaid rules that are “unintelligible to the uninitiated”. Ask for references, ask how many similar cases have been handled, ask for credentials and certifications and satisfy yourself they know what they’re talking about and are ready to get on your side.

Coastal Senior is a monthly periodical covering the South Carolina and Georgia low country.  Bob Mason is its legal columnist.

“Will the nursing home take my home?” is the question elder law attorneys constantly field.

The answer: “Maybe, maybe not, but probably not right away.”

What these people are worried about is something called “estate recovery”. In Georgia it is taking on some life and promises litigation. The current Big Question is whether the state can recover on a Medicaid lien on a life estate or other “nonprobate” property.

Estate recovery is a procedure Congress ordered in which Medicaid attempts to recover all or a portion of the benefits paid with respect to an individual from that individual’s assets upon his or her death.

Congress Offered Some Choices

Congress allowed states the option of recovering against probate assets only or against all assets. Probate assets are those assets that pass through a person’s estate and under the terms of a will (if there is one). Nonprobate assets are assets that pass pursuant to terms independent of an estate (for example, life insurance policies that name beneficiaries other than estate, joint tenancy with rights of survivorship bank accounts, or life estates in real property).

What The General Assembly Chose

The General Assembly enacted a statute to allow the Department of Community Health (DCH) to “make claim against the estate of a Medicaid recipient”.

Most elder law attorneys believe the General Assembly opted to confine estate recovery to the probate estate. First, from the clear words of the statute, it chose not to expand the definition of “estate” beyond the traditional probate estate. The way one “makes a claim against an estate” is before a probate court, and a probate court will only have jurisdiction against a probate estate.

Second, the General Assembly did nothing to address the technical manner in which non-probate assets could become part of a probate estate. For example, to make what is left of a life estate after the life estate holder has died a probate asset would require a number of amendments to ancient Georgia real property law. Under Georgia law, once a life estate holder has died, the property is free of the deceased life estate holder’s creditor claims. It is gone.

What DCH Chose

DCH elected to use the harsher method and to attempt estate recovery against all assets – ignoring (many believe) the wishes of the General Assembly.

However, Congress gave the states a choice. The General Assembly spoke. The law is well settled in Georgia that administrative agencies (like DCH) must remain within the boundaries set by their master (the General Assembly).

The law also provides exceptions to estate recovery when hardship can be proven. For example, if the deceased is survived by a spouse or a minor or disabled child.

Advance planning is wise if nursing home financing is of any concern. Avoiding or mitigating the effects of estate recovery makes advance planning particularly critical.

Finally, you should always seek assistance from qualified counsel if facing estate recovery. Estate recovery is tricky business. Make sure your attorney understands it or associates someone who does.