& ASSET PROTECTION
Don’t procrastinate. Everyone needs an estate plan regardless of current health or net worth. By planning in advance of a health crisis — what we call “proactive planning" — you get to make the decisions, remain in control and protect your hard-earned assets. Your loved ones will be grateful for not having to make tough decisions for you, perhaps during a stressful time, not knowing your wishes. If you fail to plan, and become incapacitated, your loved ones will be forced to create a plan for you. This is what we call “crisis planning”. At that point, you are not the decision maker, you are not in control and you cannot protect most of your assets. And, in the worst case scenario, your loved ones may be forced to ask a judge to appoint a legal guardian to make the decisions for you, and it may not be someone you know or trust.
Estate planning isn’t synonymous with tax planning. Due to the current high federal and state estate tax thresholds, the avoidance or minimization of taxes isn’t a concern for most of us. However, we all have loved ones and assets which require protection during our lifetimes and upon our passing. So estate planning is about protecting yourself, your loved ones and your assets from potential predators and creditors, including nursing homes, in-laws, judgments, lawsuits and taxes. Effective estate planning requires necessary conversations about you, your family, your assets and your unique needs, goals and values. With your input, we can create customized legal documents including revocable and/or irrevocable trusts, wills, powers of attorney, health care proxies, living wills and personal care plans. Depending upon your goals and needs, these documents will allow access to your property, keep you and/or your family in control and protect your assets should you become incapacitated. This access, control and protection can continue after your death and extend to your spouse, children or other relatives for their lifetimes.
Your estate plan is your personal rulebook. We also call it your set of instructions which will be followed during your lifetime and after your passing. By creating your rulebook, you guarantee that your family stays in control and makes the decisions, rather than relying on unnecessary intrusive, expensive, and time-consuming court proceedings.
MEDICAID PLANNING & APPLICATIONS
Many myths and misconceptions about Medicaid abound. Let’s clear up two of them. First, Medicaid won’t take your house. Second, you don’t have to wait 60 months to qualify for Medicaid. We are here to give you the right information and help you qualify for Medicaid benefits if and when needed.
While private insurance and Medicare should cover most or all of your health care needs, it will not pay the exorbitant costs associated with long-term custodial care received at home or in a skilled nursing facility. Unless you have the means to self-insure or obtain sufficient long-term care insurance, your assets must be exhausted before establishing financial eligibility for the Medicaid program.
By planning proactively, you can protect your assets and become eligible for either the Community (home care) or Chronic (institutional) Medicaid program. We can help you structure a plan so that you or your loved ones can age in place and safely remain at home. Depending upon your needs, the Community Medicaid program will pay for caregivers to come to your residence and take care of you for up to 24 hours a day. However, if placement in a skilled nursing facility is the only safe and appropriate option, then we can help to reduce or eliminate the financial drain by protecting assets. We want to help you qualify and apply for either program so that the costs will be fully or partially covered by the government. The earlier you begin your planning, the more options you will have to protect your loved ones and your hard-earned assets.
The Medicaid infrastructure is becoming increasingly more difficult to understand and navigate. Our Concierge Care Coordination® team works holistically and collaboratively with you, your family members and your other advisors. Our attorneys have the experience to create the planning documents, implement the legal strategies and prepare the Medicaid applications. Our social workers have the experience to guide you through the process, advocate on your behalf and help obtain the coverage you require and the care you deserve.
SPECIAL NEEDS PLANNING
Individuals with cognitive or developmental disabilities require special planning and protection. While parents are considered the “natural guardians” of their children, they cannot make legal, financial and health care decisions for their children once they turn eighteen. To maintain their rights, parents must commence Article 17-A guardianship proceedings in Surrogate’s Court. To avoid losing authority, the process ideally should begin about six months prior to the child’s eighteenth birthday.
In addition, assets received by, or left to, disabled individuals will disqualify them from ongoing or future Medicaid benefits and Supplemental Security Income. Proper estate planning will avoid this drastic result. Rather than disinheriting disabled family members or leaving assets to others with the expectation that they will be used for the disabled individual’s benefit, Supplemental Needs Trusts can be designed to protect current assets, anticipated lawsuit settlements or judgments and future inheritances. With the appropriate language, the assets can be used to enhance the individual’s life and provide luxuries while preserving access to and receipt of valuable government benefits. These trusts can be created on behalf of disabled individuals with their own funds or by others, typically parents or grandparents, with their funds.
It is Important that the trust be administered properly so that the disabled beneficiary Is protected and does not become disqualified for government benefits. Even more important, especially for aging parents, is how, by whom and where their adult children will be cared for and protected upon their Incapacity and passing. We have the compassion, knowledge and resources required to assist in creating appropriate care plans for your children regardless of age or disability.
A guardianship proceeding in Supreme Court for an Incapacitated adult is the last resort. It is one of the most intrusive, expensive, time-consuming and unnecessary civil court proceedings. With proper estate planning, this absolutely can be avoided.
However, if your loved one has failed to engage in proper estate planning, and lacks the requisite capacity to execute a comprehensive durable general power of attorney and health care proxy, the only available option is the commencement of a guardianship proceeding. While the petitioner is generally a spouse or other relative, the court may appoint a third-party to make egal, financial, personal and health care decisions for the Incapacitated person. These decisions may differ from those that the individual would have made if competent.
Guardianship proceedings can become adversarial if challenged by the alleged incapacitated person or other family members. Because of the drastic nature of guardianship, we take very seriously the need for dedicated, caring advocacy in the establishment and administration of guardianship proceedings.
VETERANS' BENEFIT PLANNING
Veterans and their surviving spouses who meet certain medical, financial and service eligibility requirements are entitled to Aid and Attendance benefits which are not dependent on service-related disabilities (referred to as “pension”). This Is separate from service-connected benefits (referred to as “compensation”). If you are suffering from cognitive or chronic conditions and require assistance with some of the activities of daily living, you can apply for benefits to help defray your living expenses, whether at home or in an assisted living facility. Unlike Medicaid, the VA benefit is directly paid to you to be used as you wish.
Through the creation of properly designed trusts, and In conjunction with VA service representatives, we help our clients become eligible for benefits. Since the financial eligibility requirements are different from those of the Medicaid program, it is Important to note that the typical Medicaid asset protection trust may not protect your assets for VA benefits. Thus, it is critical to work with an elder law attorney who understands the nuances.
Since you and/or your spouse provided valuable service to our country, let us assist you in obtaining valuable benefits to help you pay your bills and maximize your independence.
After you pass away, your estate plan needs to be administered. If you die with a Will, the assets held in your individual name cannot be collected and distributed until your named Executor completes the probate process. However, if your assets had been transferred to one or more trusts during your lifetime, then there is no delay and administration can immediately begin.
What is Probate? Probate is the legal process by which your Will is submitted to Surrogate’s Court to have it declared valid and appoint your Executor. Since it is a legal process, there are many steps which must be followed before access to assets is obtained. These include requesting your heirs to consent to the validity of the Will and the appointment of the Executor. Your heirs must consent even If they are not named as beneficiaries. This can be difficult in blended family situations or if you have disinherited, estranged, minor or disabled heirs. In addition, your Executor must submit a petition, family tree, death certificate and affidavits from attesting witnesses to your Will. A disgruntled heir who contests your Will can cause problems, considerable delay and extraordinary costs.
There are court filing fees, commissions and attorneys’ fees which must be paid, leaving less to your loved ones. However, these issues can be avoided through trust-based planning. If your assets are owned and/or designated to a properly designed Living Trust, whether revocable or irrevocable, then your Trustee has the immediate authority to administer your trust according to your instructions, pay your expenses and distribute the balance to your named beneficiaries. No court proceeding Is required, leaving your named Trustee In control and resulting in less frustration, stress and expense for your loved ones.
Avoiding probate is simple. The first step is to decide whether you want the court or your family members to control your affairs after you die. The second step is to work with us to create an appropriate, cost-effective estate plan.