Don’t Forget Long-Term Care Costs When Planning Your Estate

When discussing estate planning with clients or potential clients, the meeting usually begins with questions about who will receive property, who will make medical and/or financial decisions upon incapacity, and how to minimize taxes  and the costs of estate administration.  Most individuals tend to shy away from discussing how to pay for long-term care or nursing home expenses as it is not easy to talk about the unpleasant thought of needing nursing home care.  No one wants to go into a nursing home. I believe many families are sincere when they say they will not let mom or dad go into a nursing facility or they will care for them at home.  Sometimes, however, it is just not safe for someone to remain at home and skilled nursing care is the only option.

Long-term care expenses can cost six figures annually in some states, and generally speaking are not covered by Medicare or your private health insurance policy. Although there are several strategies to protect your assets in the event you require long-term medical care, we will focus on two of the more common financial and legal strategies for this article.

Long-Term Care Insurance

Long-term care insurance policies should be considered as an option to pay for long-term care in the event care is needed.  There are different options for coverage, so discussing your needs with a qualified insurance representative and elder law attorney is very important to ensure you are protected.

Irrevocable Trust

Asset protection using an irrevocable trust is another option to protecting your assets from estate recovery should you need long-term care. Because of the 5-year look-back period rules involving trusts, this type of planning must be done at least five years before the need for long-term care and the filing of a Medicaid/MassHealth application. A consultation with a qualified estate planning and elder law attorney is highly recommended if considering an irrevocable trust strategy.

As discussed above, we discussed only two strategies for purposes of this article. Each family’s situation should be discussed on a case-by-case basis to determine what strategies are appropriate.  Many different factors such as health, family dynamic, assets/income, and whether we are working with a spousal couple or single/surviving spouse are a few examples of the factors we must evaluate to determine what options our families have.  Please call our office to schedule a consultation to discuss what’s best for your family.

Planning With Special Needs Trusts

When your estate plan includes family or friends with special needs, care must be taken.  As the Supplemental Security Income (SSI) program is means tested, beneficiaries are allowed only $2,000 in countable assets to retain eligibility.  Although Social Security allows beneficiaries to have one house and one car, any other assets over $2,000 will be countable and affect eligibility.  Therefore, if you leave money to a loved one who is receiving SSI or Medicaid benefits, there is a good chance it will affect their eligibility.  More importantly, it may affect the medical insurance they receive as part of their benefits.

One option to consider when your estate plan includes special needs family members is a Special Needs or Supplemental Needs Trust.  With this option, instead of leaving your assets directly to your loved one, you leave it to the Special Needs Trust for their benefit.  If the trust is properly drafted, the beneficiary can benefit from the assets without affecting their eligibility for Medicaid or SSI.  This type of Special Needs Trust is a Third Party Special Needs Trust.  Another type of Special Needs Trust is the Self-Settled Special Needs Trust, which will not be discussed as part of this post.

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Update to the Massachusetts Homestead Law

     Although the Massachusetts homestead law is not new, being enacted in 1851, it still causes confusion to homeowners as to what protection it affords.  An estate of homestead is a type of protection for a person’s residence from most creditors.  It allows homeowners in Massachusetts to protect their property up to five hundred thousand ($500,000) dollars.

     In December, Governor Deval Patrick signed into law St.2010, c.______ (S2406), An Act Relative to the Estate of Homestead.  This legislation, which goes into effect March 16, 2011, makes several changes to the current homestead law:

  • Automatically protects up to $125,000 in home equity without filing
  • Protects up to $500,000 for those that file for homestead protection
  • Allows spouses to both file, currently only one may file
  • Clarifies that there is no need to re-file after refinancing
  • Allows trustee to file for homestead for homes transferred into trust
     In the past, you were required to file a declaration of homestead to gain the protection from creditors. With the new legislation, every homeowner will receive an automatic $125,000, regardless of filing.  If you do file a declaration of homestead, you will still receive the $500,000 of home equity protection. Even more important, for those that have transferred their homes into trust, the Trustee may now file for homestead on behalf of the beneficiaries.

If you have recently refinanced, or transferred your home into a trust, or have any questions regarding your current homestead status, please do not hesitate to contact our office.

Financial Planning For Families With Special Needs

ESSENTIAL STEPS TO ACCOMPLISH YOUR GOAL

  • Start Early and Get Help –  Lack of planning may have disastrous consequences.  Planning for special needs families often involves several  financial, legal and benefits-related strategies.  Assembling a team of qualified professionals to advise you will take time.  A financial advisor, estate planning attorney, benefits coordinator, trustee/trust company, family physician/registered nurse, and of course family members may all need to be involved in the ultimate plan.
  • Establish a Special Needs Trust – If you’re receiving government sponsored benefits, a gift or inheritance may cause a disqualification of those benefits.  A frequently asked question  is how to provide for a family member with special needs without jeopardizing those government benefits.  Parents may purchase life insurance to be paid out to a special needs trust.  They may also designate the special needs trust as a beneficiary in a will, trust or retirement account.  The funds designated to the special needs trust at death may be used to supplement the special needs family member without jeopardizing their benefits.
  • Draft a Letter of Intent – How can you be assured that proper care will be given to your child? You’ve established a special needs trust  to provide financial assistance when you’re gone, but have you named  a person that will assume the role of guardian or caregiver?  Do they know the name and address of your child’s physician?  Do they know their therapies, procedure and medication schedule?  Do they know their faith and where they attend religious services?  Answers to these and many other questions should be discussed and memorialized to ensure the best possible care for your child.
  • Consider Life Insurance – Someone, most likely a family member, will have to step in to act as a guardian and raise your child.  In all likelihood, that family member will have to pay for some of the services the parents had provided when able.  If the estate was not large enough, life insurance can provide the needed funds to help defray the cost of care.
  • Review Often – Many changes will occur during the course of your life.  Reviewing your plan annually will ensure everything is up to date to give you the peace of mind your family is taken care of.

Caregiver Contracts On The Rise

A recent study by the AARP found that nearly a quarter of the adult population are providing voluntary care for family members and friends.  As the population ages and people live longer, this number is sure to rise.  To reward these caregivers, parents often would leave an unequal inheritance to the caregiver child.  Often these unequal inheritances would lead to family feuds.

One alternative to an unequal distribution to a caregiver is to hire the caregiver and pay them for their services.  This is accomplished by drafting a “caregiver contract”.  This option allows the elder to acknowledge the time, effort, and services provided, and possibly eliminate the feud inherent in unequal distributions at death.

Caregiver contracts, by listing what duties or services the caregiver will provide, will often open the lines of communication and encourage families to discuss the arrangements to care for the elder.  If there is family communication, most times additional family members will assist the caregiver in providing certain services.  This often times will minimize family disagreements pre- and post death. 

Be sure to discuss your personal situation with a qualified elder law attorney as there may be tax consequences  or if your goal is to qualify for medicaid benefits.

Parents Of College-Bound Children Need To Plan Wisely

Planning your estate, whether young or old, is very important.  Sound advice from your accountant, financial advisor, insurance agent and estate planning attorney can help you plan for whatever bumps in the road you encounter during your lifetime.  Younger couples must establish a financial plan to make sure they provide for their children and can enjoy a comfortable retirement.  Older couples may want to diversify or restructure their portfolios to ensure they have enough money to last throughout retirement and minimize exposure to taxes and long-term care.  Parents of school aged children must be careful not to decrease their families eligibility for need based financial aid while developing their estate plan. Some estate planning strategies that may affect your eligibility for financial aid include:

  • Saving In Your Child’s Name – Many families establish UTMA/UGMA  accounts to save for college.  While these accounts may potentially offer tax savings, because student assets are assessed higher than a parent asset during the financial aid process, the reduction in need based financial aid can be much greater than the potential tax savings.
  • Lifetime Gifting – One strategy to minimize estate tax is taking advantage of the annual $13,000 exclusion and gifting to others.  While this may be an appropriate strategy for estate and tax planning, it may have a devastating effect on financial aid eligibility.  Be sure to discuss your plan with an estate planning professional before utilizing this strategy or receiving a gift as part of a tax plan as there may be more appropriate options available.
  • Retirement Accounts – Where your money is invested may have an impact on the amount of financial aid you may qualify for.  A review of your financial plan can determine if your investments are appropriate for your particular situation.

While there are many options in planning for retirement, minimizing tax or long-term care exposure, or developing a comprehensive estate plan, make sure your families needs are addressed in your overall plan.  Failing to plan for your childs education could frustrate your overall financial goal.

New Study Shows Younger Individuals May Be Affected By Alzheimer’s

A recent study in the New England Journal of Medicine reports that an Alzheimer’s gene may impair middle-aged memory.  According to the study, people with a variant of the APOE gene, which increases the risk of Alzheimer’s in old age, may also show memory impairment earlier than researchers once thought.  Researchers followed 815 people ages 21-97 with normal mental function.  On the Auditory-Verbal learning test, a test of a person’s ability to learn and remember, carriers of the APOE gene showed declines beginning in their 50’s.  Non-carriers of the gene did not show declines in memory until their 70’s.  The results of this study emphasize just how important preemptive estate planning is.

Veterans Aid and Attendance Benefit

LITTLE KNOWN PROGRAM CAN PROVIDE HELP FOR VETERANS

One often unclaimed, but very valuable program available to veterans is the VA aid and attendance benefit.  This program was created to help veterans, veterans and spouses or surviving spouses by providing financial assistance to help defray the costs and expenses with assisted living or at home care.  Generally, it is a benefit for those that need assistance with at least one of the activities of daily living .  The program provides a tax-free monetary benefit to those that qualify.  The eligibility guidelines include:

  • Wartime veteran or surviving spouse
  • Served at least 90 days of continuous active duty service during eligible dates*
  • Honorable Discharge or equivalent
  • In need of assistance with care

This benefit often goes unclaimed because some veterans are not aware of its existence, do not think that they are eligible, or may be discouraged by the complex and burdensome application process.  Because of the strict guidelines and lengthy eligibility process, those eligible should seek guidance from a professional familiar with process and accredited in the area of veterans benefits.

*WWII – Dec. 7, 1941-Dec. 31, 1946    Korea – June 27, 1950-Jan. 31, 1955    Vietnam – Aug. 5, 1964-May 7, 1975                Gulf War – Aug. 2, 1990-TBD

Protecting Assets From The Costs of Long Term Care

WHEN IS THE RIGHT TIME TO BEGIN PLANNING?

As everyones financial and medical backgrounds are different, so is the “right” time to begin planning.  The more time you have to plan before long term care is needed, the more options you may have and less stress you and your family will endure.  Anytime you have a concern about how you will pay for long term care for yourself or a loved one, it  may be time to begin the planning process.  Preemptive planning will give you peace of mind and allow you to:

  • Analyze your financial background
  • Ensure your legal documents are up to date and distribute your estate as you wish
  • Make sure the distribution of your estate will not jeopardize public benefits for others
  • Discuss options to allow loved ones to remain at home instead of a nursing home
  • Take steps to protect and preserve your assets, including your home
  • Research all community benefits programs applicable to your situation
  • Designate agents to make medical and financial decisions for you in the event you are unable to make decisions for yourself

Long term care, incapacity and death are not subjects we are comfortable discussing.  The earlier and more comprehensive we plan, the less stress our families will be faced with in the event uncomfortable decisions need to be made.

What Is Elder Law?

Elder law is an area of law that encompasses any legal issue facing the elderly.  It is often associated with estate planning but can involve much broader social, economic and health related difficulties facing aging Americans. Some of the concerns that become more important to us as we grow older and may require more careful planning include:

  • estate planning
  • planning for a long term medical care requirement including Medicaid planning
  • planning for incapacitation with the use of durable powers of attorney and health care proxies
  • issues requiring guardianships and conservatorships
  • elder abuse and other issues involving nursing homes or skilled nursing facilities
  • SSI, SSDI and other government benefit programs
  • special needs trusts

As the elderly population grows each year, so will the issues facing these individuals requiring a comprehensive estate plan that addresses long term care needs.  Often times, planning  must take into account strategies involving financial planning, estate planning, and other asset protection techniques.  Other times ancillary issues involving home health care, skilled nursing facilities, long term care insurance and disability benefits must be addressed.  Elder law attorneys, geriatric or nurse case managers, financial planners and professional well versed in benefits planning are often involved to ensure all needs are met.  Advanced planning can help to minimize the problems and stress associated with these issues.