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Elder Living

Understanding CMS Guidelines for Nursing Home Visitation

Revised guidance for nursing home visitation has been issued by the Centers for Medicare and Medicaid (CMS). It is now possible to have visitation with nursing home residents for reasons other than urgent end-of-life scenarios and, in some instances, may include physical touch. Additionally, communal activities and dining are permissible as long as the social distancing rule of 6 feet of separation, and other precautions are observed. Encouraging outdoor visits is desirable as long as the weather permits. Indoor visits are permissible if no new cases were identified in the previous two weeks, and the facility adheres to the core principles of resident and staff testing, screening, proper hygiene, social distancing, and facility cleaning. 

The CMS memo contains “Core Principles of COVID-19 Infection Prevention” verbatim as follows:

  • Screening of all who enter the facility for signs and symptoms of COVID-19 (e.g., temperature checks, questions or observations about signs or symptoms), and denial of entry of those with signs or symptoms
  • Hand hygiene (use of alcohol-based hand rub is preferred) 
  • Face covering or mask (covering mouth and nose) 
  • Social distancing at least six feet between persons 
  • Instructional signage throughout the facility and proper visitor education on COVID19 signs and symptoms, infection control precautions, other applicable facility practices (e.g., use of face-covering or mask, specified entries, exits, and routes to designated areas, hand hygiene)
  • Cleaning and disinfecting high frequency touched surfaces in the facility often, and designated visitation areas after each visit 
  • Appropriate staff use of Personal Protective Equipment (PPE) 
  • Effective cohorting of residents (e.g., separate areas dedicated COVID-19 care)
  • Resident and staff testing conducted as required.

CMS acknowledges that the previous months of severe visitor restrictions to slow the spread of COVID-19 were at a high cost to nursing home residents’ overall wellbeing. The revision of visitor guidance compassionately addresses resident care needs beyond protection from the coronavirus. CMS Administrator Seema Verma states, “While we must remain steadfast in our fight to shield nursing home residents from this virus, it is becoming clear that prolonged isolation and separation from family is also taking a deadly toll on our aging loved ones.”

CMS is also making available Civil Monetary Penalty (CMP) funds to ensure greater and safer access to outdoor and indoor visits. The money can purchase tents for outdoor interaction and clear dividers such as plexiglass can create physical barriers, reducing the risk of transmission during in-person visits. Funding through CMP can also provide communication aids such as tablet devices and webcams that enable virtual visits. However, each facility has a limit of $3,000 to ensure a balance in distributing CMP funds.

Compassionate care situations now include more than the end-of-life scenarios and are also included in the CMS memo. Verbatim they include but are not limited to:

  • A resident, who was living with their family before recently being admitted to a nursing home, is struggling with the change in environment and lack of physical family support.
  • A resident who is grieving after a friend or family member recently passed away.
  • A resident who needs cueing and encouragement with eating or drinking, previously provided by family and/or caregiver(s), is experiencing weight loss or dehydration.
  • A resident, who used to talk and interact with others, is experiencing emotional distress, seldom speaking, or crying more frequently (when the resident had rarely cried in the past).

In addition to family members, compassionate care visits may now also include clergy or laypersons offering religious or spiritual support that meet the resident’s needs. Personal contact is permissible during these and family visits but only when following all appropriate infection prevention guidance. This more humanized approach to nursing home care encourages facility staff to work with residents, families, caregivers, and resident representatives to identify those in need of in-person compassionate care visitation. Exceptions to compassionate visits occur when facilities have experienced COVID-19 infections within the past two weeks or when a county is experiencing a high positivity COVID-19 rate. In the absence of a reasonable safety or clinical cause, the Centers for Medicare and Medicaid make clear that failure of nursing homes to facilitate in-person visitations can be cause for citations and other penalties as CMS deems appropriate.

CMS understands that nursing home residents derive physical, emotional, and spiritual value and support through family and friend visitations, especially in trying times. No one should be made to endure this pandemic alone, least of all the most vulnerable among us. This new CMS nursing home visitation guidance is designed to help American seniors remain happier, stronger, and more resilient in the face of adversity through the personal support of those who love them most.

If you have a loved one in a nursing home, check with the facility to see how or whether their visitation guidelines have changed. It may take time for local facilities to consider these new guidelines and make changes that are consistent with the recommendations from CMS.

We would be happy to discuss any questions you have, including how to choose appropriate long term care and how to pay for it. We can recommend legal ways to help ease the cost of long-term care and protect your savings and home. Please contact our Reno office by calling us at (775) 853-5700 to learn more about your legal options.

Estate Planning

Understanding the Differences Between Wills and Trusts

Wills and trusts have specific and quite different benefits for estate planning purposes. Each state has specific laws and regulations governing these legal documents. You can have both a will and a trust; however, the information in each should compliment the other. As a standalone, it is not accurate to say one is better than the other. The better choice for you, or a blend of both documents, depends on your assets and life circumstances. Begin by assessing your situation, goals, and needs, and understanding what wills and trusts do to guide your decision making. Then, along with an attorney, you will be able to identify the solution that best suits and protects your family.

At its most basic level, a will allows you to appoint an executor for your estate, name guardians for your children and pets, designate where your assets go, and specify final wishes and arrangements. A will is only enacted upon your death. It has some limitations regarding the distribution of assets, and wills are also subject to a probate process (which occurs in court and is overseen by a judge) and, as such, are part of public records.

Types of Wills for Your Estate Plan

The last will and testament designates a person’s final wishes about bank accounts, real estate, personal property, and who should inherit these items. A personal will outlines how to distribute possessions, whether to another person, a group, or donate them to charity. It also deems responsibility to others for custody of dependents and management of accounts and other interests. Accounts can include digital assets with a tangible or monetary value associated with it, such as funds in a PayPal account.

A pour-over will ensures an individual’s remaining assets will automatically transfer to a previously established trust upon their death. This type of will always accompanies a trust.

A living will or advance directive specifies the type of medical care that an individual prefers if they cannot communicate their wishes.

A joint will and mutual will is meant for a married couple to ensure that their property is disposed of in an identical manner. A mirror will is two separate but identical wills, which may or may not also be mutual wills.

A holographic or handwritten will is valid in about half of the states and must meet the specific state’s requirements. Authentication of this will type for acceptance to the probate process also varies by state. There is always the possibility that a court will not accept a holographic will. Even if you have limited assets, your best strategy is to have your will professionally documented by an attorney. A video of your final wishes does not create a valid will.

Trusts are somewhat more complicated than wills, and the many different trust types can greatly benefit your estate and beneficiaries. Generally, a trust provides for the distribution and management of your assets during your lifetime and after death. Trusts can apply to any asset you hold inside the trust and offer more control over when and how your assets are distributed. There are many different trust forms and types, far more than wills.

However, the creation of a trust is only the beginning of the process. You must fund your trust by legally transferring assets into it, making the trust the owner of those assets. This process makes creating a trust a bit more complicated to set up; however, a trust is often enacted to minimize or completely avoid probate, thus keeping personal records private. Avoiding probate is a huge advantage for some people and often justifies the additional complex legal work of setting up a trust. There are nearly as many types of trusts as issues to address in your estate planning, and each offers different protections. However, trusts generally fall into three basic categories.

Basic Trust Types For an Estate Plan

A revocable living trust is, by far, the most commonly implemented trust type. The person who creates and funds the trust is known as the grantor and will typically act as the directing trustee during their lifetime. The grantor may undo the trust, change its terms, and move property and assets in and out of the trust’s ownership as they deem desirable. Revocable living trusts are designed to switch to an irrevocable trust upon the death of the grantor.

An irrevocable living trust is legally binding on its date of designation and allows very few provisions for change. The trust grantor funds the irrevocable living trust with property and assets, and the trust property is then under the care and control of the individual the grantor names as trustee. The grantor cannot change their mind and “undo” the trust. There are unique tax implications and other benefits to an irrevocable trust, including protecting a person’s home and savings from the high costs of long term care. These benefits can make relinquishing control worthwhile.

A testamentary trust is a provision within a will, appointing a trustee to manage the deceased’s assets. This trust is often used when the beneficiaries are minor children or someone who is receiving public benefits. This trust type is also used to reduce estate tax liabilities and ensure professional asset management. A testamentary trust is not a living trust. It only exists upon the death of the testator (the writer of the will). The executor of the deceased’s estate would follow the terms of the trust (called administering the trust) as part of the probate process.

Things to put into a trust include but are not limited to:
·      Stocks, bonds, mutual funds
·      Money market accounts
·      Brokerage accounts
·      Patents, copyrights, and royalty contracts
·      House and other real estate
·      Business interests and notes payable to you
·      Jewelry and precious metals
·      Works of art or other valuable collections
Assets that are not affected by trusts include but are not limited to:
·      Life insurance proceeds
·      Payable on death bank accounts
·      Retirement accounts
·      Jointly owned assets
·      Real estate subject to transfer-on-death deed

The many benefits that proper estate planning with wills and trusts can provide to your family are worth some thoughtful contemplation, legal counsel, and properly drafted documents.  We would be happy to meet with you and discuss which options are best for your particular situation. Please contact our Reno office by calling us at (775) 853-5700 to learn more about your estate planning options.

Elder Living

Among Elderly Americans, Isolation is Increasing Self-Neglect

Because of the coronavirus, our elder population is experiencing isolation from their family and extended community interaction, increasing the likelihood of neglect. With the flu season fast on approach this isolation and the possibility of a resurgence of COVID-19, older Americans will likely continue living 2020 in mostly solitary circumstances. Rising instances of loneliness can give way to clinical depression and foster feelings of hopelessness.

Common Signs of Self-Neglect

Some of the common signs that an older adult is self-neglecting include changes in how they communicate and a lack of interest in family or community events. A loved one who always presented themselves in a put-together manner may suddenly stop bothering to dress for the day, or perhaps they have gained or lost a startling amount of weight. A once tidy home may now be piled high with unopened mail and heaps of garbage. They may stop or have difficulty managing their medications. Their demeanor and mood may change, and often there is the incidence of a fall.

ASA

Neglect is often a person depriving themselves of necessary care, whether it be adequate nutrition and hydration, medical care, hygiene, and a suitable living environment. In some instances, neglect may be an extension of diminished capacity of physical or mental ability to provide self-care. In some cases, negligence can be the precursor to abuse by an active or passive negligent caregiver. As reported by the American Society on Aging (ASA) outside of financial abuse, the National Association of Professional Geriatric Care Managers identifies self-neglect as the more commonly encountered situation than physical or sexual abuse or neglect by others.

Each state has a mandatory reporting law requiring certain people to provide information about suspected abuse to the proper authorities. Typically, these people are nurses and doctors, as well as wellness check programs through CMS services. Some states require any person who suspects elder abuse to report the situation. Know your state law for reporting and be mindful that your elder loved one is isolated from medical professional groups who report signs of neglect.

What to Do if you Are Suspecting Elderly Abuse

If you have not already implemented virtual strategies to combat loneliness for your older adult, do so immediately. There are many communication, safety, health, and entertainment apps designed specifically with seniors in mind. If your loved one cannot manage a smartphone, use a larger tablet device. If that is unachievable, get a smart speaker where voice communication can provide the sorts of contact options, safety, and activity your senior needs.

Contact your loved one routinely. Implement fall detectors and set up video surveillance to identify any problems. Be sure not to create an overly invasive system allowing your senior some degree of privacy to protect their dignity. Always use firewalls, passwords, and other security options to address privacy concerns.

Take advantage of community programs such as Meals on Wheels or identify programs that check-in on independent living older adults or high-risk households. If they are so inclined, set up the technology for your family member to participate in the many religious services currently being conducted live on Facebook. Connect with their neighbors or local friends to request they occasionally check in on your family member.

AARP recommends whatever the legal obligation in your state to report any sign of elder neglect or abuse. If you believe the person may be in imminent danger, call 911 immediately. If not, address the concern with the person directly or with their caregiver or family member. Remember, you may be misinterpreting the situation. After you have raised your concerns, listen carefully to the other person’s point of view. There may be a quick fix for a small problem, or it could be something more profound. Act deliberately but with compassion. If you meet with resistance to change but still believe help is needed, learn how you can report your concern. Your local police department may have an Elder Affairs unit. Nationally, you can contact support through a public service of the US Administration on Aging called the Eldercare Locator (800-677-1116), connecting you with local protective service agencies.

If you believe your loved one can no longer manage their health, safety, and wellness needs, we can help by providing advice on legal options to protect your loved one. We would be honored to talk with you. Please contact our Reno office by calling us at (775) 853-5700 to learn more.

Uncategorized

How to Plan Ahead for You or a Loved Ones Inheritances and Medicaid

How to Plan Ahead for You or a Loved Ones Inheritances and Medicaid

Mistakes can be made when it comes to inheritances and Medicaid. Those mistakes can be costly.

When a person is drawing Medicaid benefits and inherits money or property, that inheritance jeopardizes the benefits. The inheritance must be handled carefully to minimize expensive penalties. What “careful” means, though, can be misunderstood without the necessary expertise.

The Right Steps for Handling Inheritance

The first and best idea is to call experienced elder law attorneys like us. (An even better idea is to call us well before any inheritance becomes a “problem.” The sooner you call us, the more money we can likely protect for you.)

An Ohio attorney was recently suspended partly because he mishandled this Medicaid-inheritance issue. The mistaken advice was that to protect the benefits, the person who stood to inherit should “disclaim” or “renounce” the inheritance – in other words, give it away to someone else.

Medicaid Rules and Inheritance Context

That advice would have been OK in the tax context. It was not OK in the Medicaid context. The Medicaid rules count inheritances regardless whether the recipient keeps them or passes them on to someone else. The bad result, in such cases, is that the person receiving Medicaid would be charged just as if he or she had taken the money, even if he or she gave it away, and the person’s benefits would be docked accordingly. This can be a very expensive misstep.

The better result would be to consult us immediately. We can advise you on necessary  techniques to split the inheritance between the recipient and somebody else, like a child. If the right strategies are used, Medicaid would count the inheritance to an extent, but not as much as it would have if the recipient had simply given away the whole sum.

An even better result would be if the person leaving the inheritance had consulted us first. We know how to structure that person’s financial arrangements, to protect the people to whom the person wants to leave his or her legacy.

Elder law is a law unto itself. We know that complicated area of the law well and we have helped many people successfully meet the challenges it poses. Please contact our Reno office by calling us at (775) 853-5700 to learn more about your planning options.

Elder Law

Debunked Myths of Long-term Care

According to the U.S. Department of Health and Human Services, someone turning age 65 today will have a 70 percent chance of requiring some long-term care (LTC) service and support during the remainder of their life. In the case of women, the typical LTC need will last about 3.7 years compared to men who will need about 2.2 years of care. While approximately one-third of today’s 65-year-olds may not ever need long-term care 20 percent of those who do will require it for more than five years.

The statistics are clear; older Americans should be carrying a long-term care insurance policy to protect their future but only about 7.2 million Americans 65 years or older currently own a traditional long term care policy, and this number has held steady for the last seven years. While LTC insurance is overall considered expensive and finding the right plan for you in the myriad of insurance products available can be confusing and vary from state to state. According to A Place for Mom, there are seven myths about long term care that anyone age 50 or more should understand.

One myth is that a person has to get rid of all of their assets to receive Medicaid which will qualify them for federally available LTC benefits. In general, the rule is a person is not allowed to keep more than $2,000 in countable assets to be eligible for Medicaid. Exemptions in some states can include your home (if a spouse, minor or disabled child still lives there), assets that cannot be converted to cash, and burial plots or spaces. Also, personal property, one vehicle, and prepaid funerals generally qualify as exemptions. The Community Spouse Resource Allowance rules permit the non-applicant spouse to keep a portion of the couple’s countable assets to prevent them from becoming destitute. Before making any attempt to spend down assets to qualify for Medicaid speak to an elder law attorney as the federal five year “lookback” rules have penalties and exceptions.

No, Medicare will not pay for long term care expenses except in the most specific and narrow of circumstances. Medicare will cover skilled in-home care from a nurse, occupational therapist, physical therapist, speech therapist or social worker for up to 21 days if ordered by a physician. In the case of a skilled nursing facility, Medicare pays for the first 20 days with no co-pays but if the stay is between 21 to 100 days, Medicare only pays a portion, and the beneficiary must pay the balance. 

Another myth is that a person thinks they are too young to think about long term care insurance let alone the need to pay for it. The truth is that even under the age of 65 if the person has a chronic illness like diabetes or high blood pressure or in the event of an accident, long term in-home or residential care services may be needed. According to the US Department of Health and Human Services on average, about 8 percent of people age 40 to 50 have a disability that may require long term care services.

Relying on the hope that family will take care of a long term care need is often a myth. While many older Americans are successfully aging in place, in part due to the benefits of technology, unpaid family member caregivers and community organizations are typically not willing and available for long term, intensive caregiving. A family discussion is needed if there is an expectation that a family member is willing and able to take on a long term caregiver role. While many family members are eager to provide oversight through the use of technology, the intensive requirements of long term care are usually more than they are willing to accept. 

Most health insurance policies will not cover long term care expenses to any meaningful degree. Some plans will have minimal home care and skilled nursing benefits; however the nature of the plan is short term and is intended to produce recovery and rehabilitation while long term care is generally custodial in nature for the safety, maintenance and well being of a person with a chronic condition. Even some long term care insurance policies will not cover all long term care expenses. There are elimination periods which function as a deductible or after a policy benefit has been exhausted. Specific coverage in long term care varies widely from policy to policy.

Finally, many aging Americans feel that their retirement savings will cover the costs of their long term care. The website A Place for Mom has a financial calculator to help individuals understand their specific needs to cover long-term care costs. Currently, the average US national median long term health care cost is about $50,000 for a home health aide which is above and beyond all other living costs. In many situations, in particular with residential care, costs can run hundreds of thousands of dollars over a few short years. Unless a person is independently wealthy, most retirement savings will be spent down very quickly.

Chances are you will need long term care during your lifetime. Being educated about what is best suited to meet your personal financial and health background needs is a significant first step. Next, understand what legal options are available to help you in the event you need significant long term care and may run out of money trying to pay for it. We are here to help. Contact our office today and schedule an appointment to discuss how we can help you with your planning. Please do not hesitate to contact our Reno office by calling us at (775) 853-5700.

Healthcare

Preserving Quality when Planning for End of Life

When our clients can no longer act for themselves, powers-of-attorney documents are prepared, the documents will convey on other trusted people the authority to act on our clients’ behalf.

But when it comes to actually using those documents at the time of a health-care crisis, clear and powerful documents are just the beginning. The decision-points can (and must) be put down on paper in advance, but when it comes to end-of-life situations, the clarity on which we lawyers thrive can be very hard to find.

Sitting in her lawyer’s office, the client may have been quite certain about health-care decisions. She does not want her life prolonged by a battery of aggressive treatments, where these would not preserve her quality of life. She does not want blood transfusions, dialysis, repeated courses of antibiotics and chemotherapy, cardiopulmonary resuscitation, or breathing and feeding tubes. She does not want to die inert in the ICU, surrounded by machines and strangers. She wants to die at home, surrounded by loved ones, at a time when she retains presence of mind to make her peace.

But that goal doesn’t just happen from wishing it and stating it. It happens with additional careful preparation for the realities. As the end of life approaches, the clarity we lawyers enjoy can be elusive. When a person gets a prognosis of two to five years (maybe), where, along that continuum, would be the time to start declining aggressive treatment? When there’s always one more intervention that may (or may not) produce a good result? When one decision could create an ever-widening array of complications? When, step by step, the patient becomes less and less able to exercise autonomy, and where treatment decisions by caregivers are not in line with the care the patient was clear about when she was sitting in the lawyer’s office?

No matter how clear the powers-of-attorney documents, with all these imponderables, the patient can end up in a situation many miles away from what she wanted. And there’s no possible do-over.

Powerful and clear power-of-attorney documents are an essential first step and we lawyers are glad to take care of that part. Beyond that, though, thorough preparation is essential.

Consider that the best result may be one that cares for comfort right now, in the moment. The question is not necessarily about how long life can be prolonged. The question may be, rather, how comfort can be maintained – in this moment, and then the next moment, and the next. The question is how life can be made better right now. Watch a video by palliative-care physician B.J. Miller, on why this is so important, here.

Make concrete plans. These include specifying what you want to happen if you’re no longer able to live independently; choosing wisely whom you want to act for you, to make sure your plans will be followed; being ready with your health-care documents before you find yourself deposited in the emergency room or ICU; and seeking the reassurance that your loved ones will be cared-for when you’re no longer there. Judy MacDonald Johnson has prepared simple, forthright worksheets to help with this process, here.  She speaks about these worksheets in this moving video.

There is no doubt that the process in safeguarding quality of life at the end of it is possibly the most challenging of all. But if that process can create as much pleasure as possible through an extremely difficult time of life, and if forthrightly engaging in that process would facilitate a passing more in line with what we would envision, the worth of the process will be felt. The transition will be smoother and more meaningful for the dying person, and a kinder legacy will be left behind for those who accompany us on this journey.

Learn more about your health care planning options and contact our Reno office by calling us at (775) 853-5700.

Elder Living

Living Alone in Your 50s and 60s Increases Your Risk of Dementia

Living arrangements for aging Americans are decidedly leaning towards aging in place. Nearly all older adults prefer to age in the comfort of their long time homes and familiar community surroundings. Aging in place often means living alone. Pew Research findings show that older people are more likely to live alone in the United States than in any other country worldwide. This preference of living solo, however, comes with hidden danger. Research from Science Times reports that living alone in your fifties and sixties increases the likelihood of dementia by thirty percent.

The conclusion drawn is based on a report from sciencedirect.com, a website replete with large databases of scientific, academic, and medical research. Findings indicate that social isolation is a more important risk factor for dementia than previously identified. In this age of gray divorce (also grey divorce) and social distancing due to the coronavirus pandemic, adults living alone in their fifties, sixties and beyond, are at greater risk than ever for cognitive decline, leading to dementia.

Understanding the Causes of Dementia Cases

The lead author of the study, Dr. Roopal Desai, says that overall increases in dementia cases worldwide can be due to loneliness, stress, and the lack of cognitive stimulation that living alone brings. Biologically, cognitive stimulation is necessary to maintain neural connections, which in turn healthily keep a brain functioning. Staying socially interactive is as important to cognitive health as staying physically and mentally active.

Strategies for Seniors Living Alone

Health care professionals in the U.S. are implementing a “social prescribing” strategy to improve the connection of a patient who lives alone to a prescribed range of services like community groups, personal training, art classes, counseling, and more. Unfortunately, in the days of COVID-19 social prescribing is limited to virtual connections between people. However, virtual social engagement is better than no social engagement at all.

Why can’t an adult, choosing to age alone, maintain their health with physical exercise, crossword puzzles, and other activities that stimulate their brains without the input of human socialization? It turns out that social isolation presents a greater risk for dementia than physical inactivity, diabetes, hypertension, and obesity. Brain stimulation is vastly different when a person engages in a conversation rather than in repetitive games and puzzles. Carrying on a conversation, whether in person or virtually, is far more stimulating and challenging to the brain’s regions.

Conversation with other people chemically evokes neurotransmitters and hormones, which translates into increased feelings of happiness and reduced stress through purpose, belonging, improved self-worth, and confidence. It turns out that being human is undeniably an experience at its most healthy when shared, and a mentally healthy person is prone to stay more cognitively capable.

The Importance of Human Connection to Decrease Dementia

Maintaining this human connection can be challenging, particularly if you are one of the many Americans who are opting to age in place. In the first place, aging is replete with reasons to reduce activity and become isolated when facing particular types of stressful events common to later life years. Role changes associated with spousal bereavement through death or divorce, household management, social planning, driving, and flexibility all fall prey to functional and cognitive limitations. Without the benefit of an involved family or social prescription, it is easy for an aging adult to spiral into social isolation, loneliness, and depression, all of which are causally linked to cognitive decline.

If you or your aging loved one actively chooses to live alone, it is imperative to maintain a vibrant social life. Staying cognitively healthy is associated to satisfying social engagement as well as physical activity. If you live alone, reducing the risk of developing dementia will allow you to continue living out your years as imagined, with independence and control, thanks to your continued human interactions.

If you have concerns about your current living arrangements (or those of a loved one who needs care), please reach out. We help families create comprehensive legal plans that cover care and financial concerns. Please contact our Reno office by calling us at (775) 853-5700. We’d be honored to speak with you.

Elder Law, Elder Living, Estate Planning, Healthcare

Will the Cost of Long-Term Care lead to the Loss of My Home?

People work hard all their lives to own a home, and it is often their most valuable and significant possession. Homeownership is the American Dream. So, when health begins to fail and the need for long-term care arises, we often get this fear-filled question from our clients: will they take away my home?

The enormous and on-going costs of nursing-home care are astronomical, on average around $8,500.00 a month depending on location. The joint federal and state Medicaid program foots the bill for one in four of around 75 million recipients in this country. This is an enormous drain on government funds. To recoup some of those costs, then, the Medicaid rules permit states to take the value of a recipient’s home in some cases, to reimburse the program for funds it has expended.

Yet, because a home is such an essential family possession, the rules treat a primary residence as exempt – that is, its value is not counted as available to pay for nursing-home care from the home-owner’s pocket, before Medicaid kicks in. The home is protected, to a certain extent, for the benefit of Medicaid recipients and their close relatives.

That protection can be lost, however. The value of the house can be counted against a Medicaid applicant, and benefits denied or curtailed, when:

*     A home-owner has no living spouse or dependents, and

*     The owner moves into a facility permanently, with no intent to return home, or

*     The owner dies.

In other words, as long as the owner expresses the intent to return home, and the owner’s spouse or disabled or blind child live in the home, the home will not be counted against the owner for Medicaid-eligibility purposes.

Once the owner passes, however the state may place a lien on the home, to secure reimbursement of the value of the Medicaid services the owner received. This lien makes it impossible to sell the home or refinance a mortgage, without first paying the state what it may be owed.

As elder law attorneys we know a number of ways to protect homes from this kind of attachment. If you come to us at least five years before you anticipate needing nursing-home care, we can preserve your home or its value such that Medicaid will not count it, or lien against it, at all.

Or, if a child moves into the home and cares for an ailing parent for two years, permitting the parent to stay home and out of a nursing home, the house can then be given as a gift to that child without any Medicaid penalty or disqualification. Ordinarily, Medicaid heavily penalizes giving away property, but this is one exception.

There are other strategies available. The home can be given to a disabled child without penalty or disqualification. Or, you might keep the right to live in the house for your lifetime and deed the remainder interest to others, who will then own the house after you pass. However, each strategy comes with risks that must be fully explored before determining the correct one.

An overall plan that is tailored to suit each individual, and to meet as many contingencies as possible, requires juggling a number of puzzle-pieces. There is no one cookie-cutter solution. The key is to plan before you or your spouse may need nursing-home care.

As one piece in the overall picture of a balanced estate plan, we can help you save your home. We welcome the opportunity to work with you, please contact our Reno office by calling us at (775) 853-5700.

Estate Planning

The Importance of Family Values as Part of an Inheritance

Addressing and legally formalizing inheritance of family values and assets can be challenging, especially if parents wait too long to begin instilling family values.  Undoubtedly the best time to teach and empower your children as eventual inheritors of your family legacy is during childhood, then continuing throughout adulthood. Waiting until your later stages in life to discuss family values as a guide to handling inherited worth is often ill-received as grown adult children prefer not to feel parented anymore, particularly when they are raising children of their own. 

There is value in the spiritual, intellectual, and human capital of rising generations, and it is incumbent upon older generations to embrace this notion and work with their heirs rather than dictating to them their ideas about how to facilitate better outcomes. While the directions taken by newer generations will likely differ and can sometimes be downright frightening than that of their elders, there can still be a deep sense of service and responsibility to family values and stewardship of inherited wealth. Allow your children to exert their influence over the family enterprise early on in life and make adjustments that create synergy, connection, and like-mindedness.

If this description of a somewhat ideal family system does not resemble yours, take heart. Most families do not conform to perfect standards of interaction. The more affluent a family is, the higher the failure rate to disperse assets without severe fallout. The Williams Group conducted a 20-year study and determined there is a 70 percent failure rate that includes rapid asset depletion and disintegration of family relationships during and after inheritance. Establishing inheritable trusts can provide real benefits. Benefits include avoiding probate, reducing time to handle estate matters, privacy protection, the elimination or reduction of the estate tax, and can be effective pre-nuptial planning. A parent who wants to control outcomes should focus on these benefits of the trust instead of trying to legislate their future adult children’s behavior.

It is imperative not to allow your values and legacy to become weaponized within the family system. A sure-fire way to inspire conflict is via “dead hand control,” meaning trying to control lives from the grave. Most often, if you put excessive trust restraints on adult children, they will act accordingly to your perception that they are not adult enough to handle wealth. Instead, consider enrolling them in a few classes about managing wealth. Spark an interest in them to learn how you have created wealth, the mechanisms you used, and what their future endeavors may look like long after you are gone. Formally educate your children about finances, the earlier the better, and instead of talking about who gets what the conversation can shift to the mechanics of managing wealth. This tactic resets the context of the issue and aligns purpose and intended long term outcomes.

Estate planners try to encourage trust choices that lead to flexibility. If a beneficiary is genuinely incapable of making the right decisions, a trustee can be appointed to make distributions in the beneficiary’s best interest. This trustee discretionary power of money management can help a well-funded trust survive for generations.

You can also write a letter of wishes or provide a statement of intent to your children. Though these are not legally binding, it gives you a platform to remind them of family values and your desire for these values to be maintained for future family generations. This type of letter is an opportunity for you to convey your vision for how your wealth can bring growth and chance for fulfillment to beneficiaries.

Prosperity should positively shape lives. Family trust beneficiaries hopefully already have a self-driven life that includes purpose, responsible behavior, and a basic understanding of personal finance. If you worry your children may squander inheritable assets, create the opportunity for them to succeed through classes that teach them about managing legacy family values and wealth. Address your concerns legally and directly through a detailed trust that can help but not overly constrain them to achieve what you envision they can become. Start an honest conversation early on, but remember it is never too late to make good choices and create positive family value influences for the coming generations. A well-known Ann Landers quote sums it up neatly, “In the final analysis it is not what you do for your children but what you have taught them to do for themselves that will make them successful human beings” – a worthy goal of any family value system.

If you are interested in establishing a trust to pass wealth on to your children, we can help. We can also guide families on how to pass on family values in a meaningful way. We look forward to hearing from you, please contact our Reno office by calling us at (775) 853-5700.

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Social Security Disability Income and Qualifications 101

Temporary or permanent disability can happen to anyone at any time. Do you understand the role social security can play? Some projections are estimating that Americans in their 20s today have an approximate 30 percent chance of experiencing a disability profound enough to cause them to miss three or more months of work before retiring. Despite the risks, most Americans do not carry short or long-term disability insurance. Close to half of all mortgage foreclosures are due to owners being struck with a disability, and fewer than 15 percent of people who purchase life insurance opt for disability insurance. The Social Security Administration (SSA) was tasked in 1956 to address disability and work income by creating a disability insurance program. Throughout its long history, additional rules have contributed to its complex regulations and eligibility requirements that make applying for disability benefits difficult.

What Are the Disability Benefits and Eligibility?

The disability benefits are in the form of monthly payments to provide a safety net for qualified individuals who have become too disabled to work. The benefits are paid through the Social Security Disability Insurance (SSDI) or the Supplemental Security Income (SSI) Programs. Both of the programs are intended for disabled workers, but they have different benefits and qualifying requirements as well as different funding sources.

To become eligible for the SSDI program, you will have worked a required number of years in a job where you paid into the social security taxes (FICA, Federal Insurance Contributions Act). You have to have accrued a certain number of work credits. You can earn up to 4 work credits per year. Workers that do not have the required number of work years and who also have low income and minimal assets can apply for SSI. In both programs, you are not eligible to be engaged in a substantial gainful activity (SGA), earning a certain amount of income from some other work.

The number of work credits required as a qualification for SSDI benefits depends on the age at which you became disabled. Generally, it is possible to qualify if you have earned at least 20 credits in the ten years before being disabled and if you have earned credits that total 40 or more. If you do not have enough work credits to qualify, there is a chance you can become qualified based on a spouse or parent’s work record. There are many regulations governing eligibility for SSDI, and each individual has a varied work history. To understand how to qualify and how much you should be able to receive, it is best to contact a legal professional for help.

Maintaining Disability Qualifications and Benefits

Once you qualify from a work history perspective for SSDI, then you must prove you meet medical eligibility requirements. SSDI benefits are available to those workers who have a severe, long-term, or total disability. A severe disability is a condition that interferes with general work-related actions. Long-term disability means you are unable to perform “substantial gainful activity” (SGA) for a minimum of one year. Total disability is a person’s inability to work in their own or any other occupation for which they are suited by training, experience, or education due to a sickness or injury.

SSI medical qualifications are similar to medical terms used in SSDI qualifications; however, these individuals must also have limited resources and a low income. The benefits from the SSI program are funded through general tax revenue and not dependent on your work history or having paid into the social security taxes known as FICA.

For either program, it can be challenging to qualify for the SSA’s definition of disabled. To be considered disabled by the SSA, your condition has to last a year or be expected to last a year. Or your condition should be expected to result in your death. Your condition must also significantly limit your abilities to do necessary work activities like walking, sitting, standing, or retaining and remembering information. Additionally, your condition must be listed in the SSA’s “Listing of Impairments” (Blue Book) or have medical equivalency to listed conditions. Finally, your condition must prevent you from doing any work for which you qualify before your disability.  

The Approval Process for Social Security Disability

Becoming approved for benefits is a lengthy and often frustrating process as many people are denied on their first application. A myriad of forms, doctors’ recommendations, personal medical history, work, and tax documentation all contribute to becoming accepted into either program. You can apply online or at your local social security office. It is best to contact the office to schedule an appointment to submit your application for benefits. Regarding financial qualification, be prepared with your work history and current earnings, household assets and income, your bank, and financial institution information. Also required is your current and past employers and up to five jobs you have held in the past 15 years, any other benefits you may be receiving, your status of citizenship, and, if applicable, any paperwork from a military discharge.  Pay stubs, proof of citizenship, W-2s or 1099s, information about your disability, and detailed medical records are all pertinent data to bring.

An initial application that is denied has multiple stages of appeal. You can enter a request for reconsideration or even go up as high as an appeal to a federal court. If your condition has made you very sick and you are experiencing a severe medical condition, there is a streamlined process known as the SSA’s Compassionate Allowance List. This list primarily includes adult brain disorders, certain cancers, and several rare disorders that affect children. If and when you are approved for disability income through SSDI or SSI, there is a waiting period. Benefits will not be made available to you until you have been disabled for a full five months, and, likely, you will not be approved for six months to a year, including the likelihood for at least one level of appeal. Be prepared from the outset for a lengthy process and improve your chances for approval with a well thought out, legally reviewed application for disability income. If you have questions or would like to discuss your situation with us, please do not hesitate to contact our Reno office by calling us at (775) 853-5700.