Estate Planning Blog Articles

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What Is a Power of Attorney?

Any responsible adult can act as your agent. South Florida Reporter’s recent article entitled “Everything You Should Know About Power of Attorney” says this is an important decision that shouldn’t be handled lightly.

A power of attorney or “POA” is a legal document that authorizes a trusted person (the “agent” or “attorney-in-fact”) to make decisions on your behalf (the “donor” or “grantor”).

The authority can be broad, or it can be narrow for only specific actions.

There are two basic types of powers of attorney: one for finances and another for medical decisions.

A financial POA provides your agent with the authority to make financial and property decisions on your behalf. This may include handling your bank or building society accounts, collecting a pension or benefits, paying bills, or selling your house. Once registered, you can use it right away or keep it till you lose your mental capacity.

A medical POA lets your agent make decisions about your medical care and placement in a care facility, including life-sustaining medical care. It should only be used if you’re incapable of making your own decisions, and you must agree to it while you are still capable of doing so.

These specifics may vary, but the following are general guidelines that typically apply:

  • Write it down
  • Determine the parties
  • Delegate the authority
  • Define the term “durability”; and
  • Get the POA notarized.

Appoint a person as your representative who’s both trustworthy and capable.

Reference: South Florida Reporter (July 18, 2021) “Everything You Should Know About Power of Attorney”

What Happens to My Home If I Leave It to a Medicaid Recipient in My Will?

When a beneficiary is on Medicaid and she’s set to get a bequest of the grantor’s home in her last will, the question may arise about the impact on her Medicaid benefits.

The answer will depend on the Medicaid program and what the daughter decides to do with the house, says nj.com’s recent article entitled “What happens to my daughter’s Medicaid if I leave her my home?”

Medicaid provides health coverage for some low-income people, families and children, pregnant women, the elderly, and people with disabilities.

In some states the program covers all low-income adults below a certain income level.

Medicaid programs are required to follow federal guidelines, but coverage and costs may be different from state to state.

Here, if the daughter receives Medicaid because she also receives SSI or has ABD Medicaid, the house will not be counted as a disqualifying asset if the house is the daughter’s principal place of residence.

If the daughter sells the house, the sale proceeds would be countable.

If she is getting expanded Medicaid through Obamacare, her eligibility would be based on income. So, if the daughter rented the house or sold the house, the income that would be generated could disqualify her from continuing to receive benefits, depending on the amount of income she gets.

If the daughter is disabled, consider leaving the daughter the house in a special needs trust. With a special needs trust, there’s a legal arrangement and fiduciary relationship that allows a physically or mentally disabled or chronically ill person to enjoy trust assets without jeopardizing their eligibility for Medicaid.

A Medicaid Asset Protection Trust is an irrevocable trust, and assets placed in the trust are considered completed gifts to the beneficiaries, protecting the assets from Medicaid (after the look-back period).

With a Medicaid Asset Protection Trust, even if the house is sold, the sale proceeds wouldn’t disqualify the daughter from receiving Medicaid.

Ask an experienced elder law attorney for help with this situation.

The laws regarding Medicaid and Medicaid eligibility are extremely complex and vary from state to state. Accordingly, nothing in this article should be considered legal advice.

Reference: nj.com (July 30, 2021) “What happens to my daughter’s Medicaid if I leave her my home?”

Does My Social Security Increase If I Work Past 70?

Many seniors choose to work later in life. It will have an effect on their Social Security benefits, says nj.com’s recent article entitled, “If I work past age 70, can my Social Security benefits increase?”

You must pay FICA (Federal Insurance Contribution Act) taxes, commonly called Social Security and Medicare taxes, if you have income that’s covered by Social Security.

The tax is imposed on your earnings up to a maximum amount. For 2021, that maximum amount is $142,800.

Your Social Security benefit at full retirement age (FRA) is determined by taking your highest 35 years of earnings on which Social Security tax has been levied, indexed for inflation.

The maximum amount of your benefit is capped because of the maximum amount of income on which Social Security tax is levied.

If you continue to work while collecting Social Security at any age, your benefit could increase, if your earnings are one of the 35 highest years you have earned.

The increased benefit is automatically calculated by the Social Security Administration and is paid to you in the December of the next year.

However, working while collecting Social Security benefits has other complexities you should consider.

If you’re younger than full retirement age (FRA) and you earn more than a certain amount, your benefit will be reduced.

For example, for 2021, if you’re below YOUR FRA for the whole year, your benefit will be reduced $1 for every $2 you earn over $18,960.

However, the benefit isn’t actually lost. That’s because when you reach your full retirement age, your benefit will increase to reflect the amount withheld.

If you have substantial income — any and all income that must be reported on your tax return — other than your Social Security income, up to 85% of your Social Security income will be taxable.

Reference: nj.com (July 26, 2021) “If I work past age 70, can my Social Security benefits increase?”

Can a Retired Police Officer Qualify for Medicaid?

An 84-year-old retired police officer recently took a fall in his home and injured his spinal cord. He retired from the police force more than 20 years ago and received a lump sum.

Currently, he gets more than $2,000 per month from his pension and Social Security.

How does this retired police officer spend down to qualify for Medicaid, since he is now a paraplegic?

State programs provide health care services in the community and in long-term care facilities. The most common, Medicaid, provides health coverage to millions of Americans, including eligible elderly adults and people with disabilities.

Medicaid is administered by states, according to federal requirements. The program is funded jointly by states and the federal government.

Nj.com’s recent article entitled “How can this retired police officer qualify for Medicaid?” advises that long-term services and supports are available to those who are determined to be clinically and financially eligible.

A person is clinically eligible, if he or she needs assistance with three or more activities of daily living, such as dressing, bathing, eating, personal hygiene and walking.

Financial eligibility means that the Medicaid applicant has fewer than $2,000 in countable assets and a gross monthly income of less than $2,382 per month in 2021.

The applicant’s principal place of residence and a vehicle generally do not count as assets in the calculation.

If an applicant’s gross monthly income exceeds $2,382 per month, he or she can create and fund a Qualified Income Trust with the excess income that is over the limit.

The options for spending down assets to qualify for Medicaid are based to a larger extent on the applicant’s current and future living needs and the amount that has to be spent down.

Consult with an elder law attorney or Medicaid planning lawyer to determine the best way to spend down, in light of an applicant’s specific situation.

Reference: nj.com (July 19, 2021) “How can this retired police officer qualify for Medicaid?”

Do I Need Long-Term Care Insurance?

Women face some unique challenges as they get older. The Population Reference Bureau, a Washington based think tank, says women live about seven years longer than men. This living longer means planning for a longer retirement. While that may sound nice, a longer retirement increases the chances of needing long-term care.

Kiplinger’s recent article entitled “A Woman’s Guide to Long-Term Care” explains that living longer also increases the chances of going it alone and outliving your spouse. According to the Joint Center for Housing Studies of Harvard University, in 2018 women made up nearly three-quarters (74%) of solo households age 80 and over. Thus, women should consider how to plan for long-term care.

Ability to pay. Long-term care is costly. For example, the average private room at a long-term care facility is more than $13,000/month in Connecticut and about $11,000/month in Naples, Florida. There are some ways to keep the cost down, such as paying for care at home. Home health care is about $5,000/month in Naples, Florida. Multiply these numbers by 1.44 years, which is the average duration of care for women. These numbers can get big fast.

Medicare and Medicaid. Medicare may cover some long-term care expenses, but only for the first 100 days. Medicare does not pay for custodial care (at home long-term care). Medicaid pays for long-term care, but you have to qualify financially. Spending down an estate to qualify for Medicaid is one way to pay for long-term care but ask an experienced Medicaid Attorney about how to do this.

Make Some Retirement Projections. First, consider an ideal scenario where perhaps both spouses live long happy lives, and no long-term care is needed. Then, ask yourself “what-if” questions, such as What if my husband passes early and how does that affect retirement? What if a single woman needs long-term care for dementia?

Planning for Long-Term Care. If a female client has a modest degree of retirement success, she may want to decrease current expenses to save more for the future. Moreover, she may want to look into long-term care insurance.

Waiting to Take Social Security. Women can also consider waiting to claim Social Security until age 70. If women live longer, the extra benefits accrued by waiting can help with long-term care. Women with a higher-earning husband may want to encourage the higher-earning spouse to delay until age 70, if that makes sense. When the higher-earning spouse dies, the surviving spouse can step into the higher benefit. The average break-even age is generally around age 77-83 for Social Security. If an individual can live longer than 83, the more dollars and sense it makes to delay claiming benefits until age 70.

Estate Planning. Having the right estate documents is a must. Both women and men should have a power of attorney (POA). This legal document gives a trusted person the authority to write checks and send money to pay for long-term care.

Reference: Kiplinger (July 11, 2021) “A Woman’s Guide to Long-Term Care”

Which State Offers Dental Benefits to Low-Income Adults on Medicaid?

Virginia’s new policy making low-income adults on Medicaid eligible for dental benefits took effect on July 1, 2021.

8 News’ recent article entitled “Virginia is offering dental benefits to all adults on Medicaid for the first time” reports that the Virginia General Assembly first allocated funding for the expansion in the 2020 session. However, the change was delayed due to the pandemic. Since it was authorized in the two-year state budget, state legislators will have to allocate more funding in the future to maintain this level of coverage.

Dr. Tegwyn Brickhouse, chair of VCU’s Department of Dental Public Health and Policy, explained oral health is inseparable from overall health.

“It can help control chronic diseases, such as diabetes and cardiovascular disease. We also know there’s a link between oral health and pre-term birth,” Brickhouse said.

Brickhouse remarked that children and pregnant women covered by Medicaid were already eligible for dental benefits in Virginia. However, the move is making those services accessible to more than 750,000 other adults. In addition to routine cleanings and preventative care, the program will pay for x-rays, examinations, fillings, dentures, root canals, gum-related treatments, oral surgeries and more.

In the past, Brickhouse said many adults on Medicaid could only access dental coverage for emergency extractions. Without benefits, Brickhouse said many turned to emergency rooms as a last resort to find relief from the pain of other oral health conditions.

“Dentistry is not typically provided in emergency room settings, so you end up maybe getting an opioid but never really getting the tooth fixed. So, providing dental care will provide hundreds of thousands of dollars in savings from emergency room visits,” Brickhouse said.

Christina Nuckolos, communications director for the Virginia Department of Medical Assistance Services, says that roughly 75% of the nearly 2,000 dentists involved in the state’s Medicaid program have said that they’ll serve adult members.

“Governor Ralph Northam wrote a letter to the state’s dentists urging them to participate or to increase the number of Medicaid members they serve. The Virginia Dental Association distributed the Governor’s letter to their 3,900 members, and we are pleased that it has been well-received,” Nuckolos said.

Because Medicaid pays much less than private insurers for the same services, proponents are asking state lawmakers to up reimbursement rates to incentivize more participation. That hasn’t been done in more than 10 years, Brickhouse said.

Reference: 8 News (July 6, 2021) “Virginia is offering dental benefits to all adults on Medicaid for the first time”

What Happens to My Home If I Go to a Nursing Home?

An aging parent who does not have any other assets and believes she would end up on Medicaid sooner rather than later, may not know what would happen to the house that is in both her name and the name of her son.

Nj.com’s recent article entitled “What happens to my house if I go into a nursing home?” says that timing is everything, and the answer may depend on when and how the son obtained his interest in the parent’s house.

If the parent owned the house and put her son’s name on the deed along with hers, the parent made a gift of an interest in the house to her son.

Medicaid has a five-year look back period when a senior applies for Medicaid.

If an applicant made any gifts during this look back period, a penalty period will apply. During that time, an applicant isn’t eligible for Medicaid. However, if the gift was made prior to the five-year period, the penalty period is inapplicable.

If the son bought the interest in the parent’s house, the Medicaid lookback rules don’t apply.

However, in any event, Medicaid requires an applicant to “spend down” her assets to $2,000 (in most states, but the amount may vary) to qualify for the program.

A home the parent or a spouse or disabled child are living in will be considered exempt. However, it won’t be exempt if the parent, spouse, or disabled child, aren’t living in it and have no expectation of returning to it.

If the parent will not be living in or returning to her home, the parent will need to sell her interest in the home before she qualifies for Medicaid.

Alternatively, the parent and her son will have to sell the home, and she will have to use her share of the proceeds before she can qualify for Medicaid.

In addition, if the son is also providing a level of care for the parent for a period of at least two years, the parent has allowed you to stay in her home and not have to relocate to a nursing facility sooner. This exception has a complex set of rules.

Medicaid is complicated and the above information is only general in nature. Medicaid rules sometimes change and can even be applied differently based on where you live. You should consult with an estate planning or elder law attorney to make certain you take the steps that will be most beneficial to your specific set of circumstances.

Reference: nj.com (June 4, 2021) “What happens to my house if I go into a nursing home?”

Medicare Surprises Do Exist

CNBC’s recent article entitled “Here are 3 Medicare surprises that can cost you thousands every year” reports that about 62.6 million people—most of whom are age 65+— are enrolled in Medicare. Most pay no premium for Part A (hospital coverage) because they have at least a 10-year work history of paying into the system via payroll taxes.

As far as Part B (outpatient care) and Part D (prescription drug coverage), a senior may see some surprise premium costs, no matter if you stay with original Medicare (Parts A and B) or choose to get your benefits through an Advantage Plan (Part C).

  1. Higher premiums for higher income. About 7% (4.3 million) of Medicare enrollees pay more than the standard premiums for Parts B and D for income-related monthly adjustment amounts, or IRMAAs, according to the Centers for Medicare and Medicaid Services. This starts at modified adjusted gross income of more than $88,000. It goes up at higher income thresholds. For example, a single taxpayer with income between $88,000 and $111,000 would pay an extra $59.40 per month for Part B on top of the standard premium of $148.50, or $207.90 total. Note that these IRMAAs don’t gently phase in within each income bracket. If you earn a dollar above the income thresholds, the surcharge applies in full force. Generally, these extra charges are calculated by your tax return from two years earlier. You can also request that the Social Security Administration reconsider the surcharges, if your income has dropped since that you filed that tax return.
  2. Your spouse’s income counts against you. The IRMAAs aren’t based on your own income. For example, if you have retired but your spouse is still working, and your joint tax return is a modified adjusted gross income of $176,000 or higher, you would be subject to IRMAAs.
  3. If you sign up late, you’ll pay a penalty. Sign up for Medicare during a seven-month window that starts three months before your 65th birthday month and ends three months after it. However, if you meet an exception — i.e., you or your spouse have qualifying group insurance at a company with 20 or more employees — you can put off enrolling. Workers at big employers often sign up for Part A and wait on Part B until they lose their other coverage. When this happens, they generally get eight months to enroll. Note that the rules are different for companies with fewer than 20 employees, whose workers must sign up when first eligible. For each full year that you should have been enrolled in Part B but were not, you could face paying 10% of the monthly Part B standard premium ($148.50 for 2021). The amount is added to your monthly premium for as long as you are enrolled in Medicare.

For Part D prescription drug coverage, the late-enrollment penalty is 1% of the monthly national base premium ($33.06 in 2021) for each full month that you should have had coverage but didn’t. This Part B penalty also lasts as long as you have drug coverage.

Reference: CNBC (June 21, 2021) “Here are 3 Medicare surprises that can cost you thousands every year”

What are the Biggest Blunders Made in Retirement?

Retirement is supposed to be a time to enjoy the fruits from decades of labor, but managing your health care can feel like a whole new job, says Money Talk Newsrecent article entitled “5 Medicare Mistakes to Avoid for a Healthy Retirement.” This is no easy task because the official guide to Medicare, the federal health insurance program primarily reserved for people age 65 and older, is roughly 120 pages. This means it is easy to make Medicare mistakes. You may pay extra, or a blunder could leave you with a gap in coverage. If you haven’t enrolled in Medicare but are almost 65, here are some mistakes that seniors who are already enrolled in Medicare can’t afford to make with their coverage:

  1. Not taking advantage of the “freebies.” Some medical services and products come at no charge for Medicare recipients—or recipients don’t have to pay anything extra, like a co-pay or meeting a deductible to take advantage of these freebies.
  2. Missing your annual chance to switch plans. Your plan’s coverage, costs and benefits can change every year. You have a chance during open enrollment to examine your options, make sure you’re still getting the best value and, if you want, switch your plan. During the open enrollment, it’s wise to consider the plans that are available and see what the cost will be in the coming year. You should also confirm that your favorite pharmacies, hospitals and medical providers still will accept your plan in the new year.

Before you do this open enrollment homework, however, it helps to review these resources:

  • gov and its Medicare Plan Finder
  • The latest annual “Medicare & You” handbook
  • Evidence of Coverage document; and
  • Plan Annual Notice of Change document.
  1. Losing in-network access. Remember that not all health care providers accept all Medicare coverage. As a result, if you go to a doctor who’s not in your plan network, you could see higher co-payments, or your insurer might refuse to pay any of the bill.
  2. Losing Medigap coverage. People with Original Medicare have the option to buy a supplemental policy from a private insurer, known as a Medigap policy, to cover some of the costs that Original Medicare doesn’t fully cover. If you have a Medicare Advantage plan, you can’t buy a Medigap policy. Therefore, if you decide to switch to a Medicare Advantage plan from Original Medicare with a Medigap plan, you’ll drop the Medigap plan. That can be risky. Only during your initial Medigap enrollment period (which is when you first became eligible to sign up for Medicare) are you guaranteed coverage by a Medigap plan. That is the only time when are insurance companies cannot deny you coverage or charge you extra due to pre-existing conditions. After that, insurers typically ask about your health status. Thus, based on your health and where you live, if you lose your initial Medigap coverage because you switched to Medicare Advantage, you could wind up paying a lot more for a Medigap policy, if you later decide to switch back to Original Medicare. You might even be prohibited from certain plans.
  3. A tax penalty for HSA contributions. If you contribute to your health savings account (HSA) while on Medicare, you may be penalized. You should stop making HSA contributions the month before your Medicare Part A coverage (which primarily covers inpatient hospital-related costs) begins, which can be as early as six months before you apply for Medicare or Social Security.

Reference: Money Talk News (June 7, 2021) “5 Medicare Mistakes to Avoid for a Healthy Retirement”

What Is Elder Law?

With medical advancements, the average age of both males and females has increased incredibly.  The issue of a growing age population is also deemed to be an issue legally. That is why there are elder law attorneys.

Recently Heard’s recent article entitled “What Are the Major Categories That Make Up Elder Law?” explains that the practice of elder law has three major categories:

  • Estate planning and administration, including tax issues
  • Medicaid, disability, and long-term care issues; and
  • Guardianship, conservatorship, and commitment issues.

Estate Planning and Administration. Estate planning is the process of knowing who gets what. With a will in place, you can make certain that the process is completed smoothly. You can be relieved to know that your estate will be distributed as you intended. Work with an experienced estate planning attorney to help with all the legalities, including taxes.

Medicaid, Disability, and Long-Term Care Issues. Elder law evolved as a special area of practice because of the aging population. As people grow older, they have more medically-related issues. Medicaid is a state-funded program that supports those with little or no income. The disability and long-term care issues are plans for those who need around-the-clock care. Elder law attorneys help coordinate all aspects of elder care, such as Medicare eligibility, special trust creation and choosing long-term care options.

Guardianship, Conservatorship, and Commitment Matters. This category is fairly straightforward. When a person ages, a disability or mental impairment may mean that he or she cannot act rationally or make decisions on his or her own. A court may appoint an individual to serve as the guardian over the person or as the conservator the estate, when it determines that it is required. The most common form of disability requiring conservatorship is Alzheimer’s, and a court may appoint an attorney to be the conservator, if there is no appropriate relative available.

Reference: Recently Heard (May 26, 2021) “What Are the Major Categories That Make Up Elder Law?”