Planning Ahead for the Medicaid Look Back Period

It is always a good idea to start thinking about long-term planning early so that you are financially prepared for the future and your mind can be at ease if future hardship should occur. While estate planning is one endeavor that is best tackled early, long-term health care is another important issue and one that will impact you during your life, as well as impacting your family and beneficiaries.

For those who have yet to think about their future health insurance needs, it is vital to become informed of your options. Medicaid is often easily confused with Medicare, yet the two are very different and can benefit you in different ways. Medicare is a federal insurance program that usually kicks in after the age of 65 (except for in special circumstances). Medicaid, on the other hand, is an assistance program serving low-income individuals of all ages. Medicaid has federal guidelines, but is run by state and local government and to be eligible you have to qualify for your state’s Medicaid program. Medicaid functions largely to cover long-term care once an individual has used up their own assets.

Navigating the Medicaid rule and regulations, to best benefit the person in need, requires an element of foresight and planning. Through proper planning, an individual can qualify for Medicaid while still being supported in part by a spouse or family member. On the other hand, if you do not plan for the possibility, long-term health care may deplete your savings before Medicaid kicks in, leaving you with little to leave to loved ones.  In order to protect some of your assets, gifting money to beneficiaries while you are well can be a way to provide security to your family.

However, one aspect of Medicaid that is often misunderstood is its look back period for asset transfers, which can impact eligibility of individuals who need long-term care. When applying for Medicaid, gifts made within five years are subject to Medicaid penalties; thus these five years make up the “look back period” during which asset transfers will be penalized before Medicaid is granted.

Through advance planning, you may avoid these penalties. While some things in life are impossible to plan for, and a person’s health is one of those unknowns, planning ahead for the future (regardless what is holds) is one way to protect your loved ones and your legacy. After all, if you plan to leave an inheritance to your loved ones, there is no time like the present. Gifting money while you are well serves multiple purposes – avoiding taxes, including the potential of future estate taxes, and safeguarding your estate from Medicaid penalties.

While no one wants to consider the possibility that they will face a long-term illness or injury, planning for this worst-case scenario will lessen the financial and emotional turmoil that such an unfortunate event can cause. With proper planning, you can be at ease knowing that you and your loved ones are financially ready, so that you can focus on your health and not your wealth.

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The Landmark SCOTUS Decision that Impacts your Inherited IRA

In a landmark decision handed down on June 12, 2014, the United States Supreme Court held that inherited IRAs are not protected from creditors in a bankruptcy claim. In Clark v. Rameker, the Supreme Court unanimously held that retirement funds inherited by a beneficiary after the original plan participant’s death are not considered “retirement funds” in accordance with the federal bankruptcy exemptions. Consequently, an inherited IRA may be considered an asset of a bankruptcy estate from which to satisfy creditors’ claims.

The opinion, written by Justice Sonia Sotomayor, will have lasting implications for those filing bankruptcy claims in the future. In this landmark case, Heidi Heffron-Clark had inherited an IRA from her mother, before filing for bankruptcy. The case raised the  question of the legal distinction between inherited IRAs and those set up and funded on one’s own. Inherited IRAs have various features that set them apart and indicate that they are not retirement assets. Because inheritors cannot add funds to the account and can withdraw funds at any time without suffering a penalty, they differ substantially from retirement accounts, which are designed to protect savings for the long term so there is money available for retirement.

In Clark v. Rameker, Heffron-Clark’s mother named her daughter as sole beneficiary of her IRA account worth about $450,000 when she died. When Heffron-Clark filed for bankruptcy 9 years later, the account was worth approximately $300,000. She argued that because it was “retirement funds,”  it should not be available to creditors. The bankruptcy court originally sided with the creditors, who objected to her argument. The bankruptcy court decision was appealed to the District Court of the Western District of Wisconsin where the decision was reversed.  That decision was overturned by the 7th Circuit U.S. Court of Appeals before finding itself in the Supreme Court.

The decision also has an important impact on spouses, who are given an option not available to other inheritors. Once an IRA is inherited, a spouse is able to roll the assets into their own IRA and put off distributions until the age of 70 and a half. However, if the spouse chooses not to rollover the funds, the account is considered an inherited IRA and subject to creditors in a bankruptcy claim. Rolling over the funds into one’s own IRA has tax benefits as well, so this recent decision only amplifies the financial benefits of a rollover

In order to protect inherited retirement assets from creditors, a Standalone Retirement Trust may be a smart option. A Standalone Retirement Trust is set up as a third-party trust, funded with retirement assets upon the death of an account holder. Because the asset protection features of irrevocable third-party trust laws apply, a beneficiary (in most jurisdictions) will have protection from claims of creditors because they did not establish the trust, did not fund the trust with their own assets, and can’t make changes to the trust.

If you are concerned about how this new precedent will impact your estate plan, Fields and Dennis, LLP can help. It is important to be informed about these changes so that you can do your best to preserve your retirement accounts so that they will be protected for your beneficiary’s future. While this recent judgment puts some inherited IRAs at risk, there are steps you may be able to take to protect your loved ones from being impacted by this decision.

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Elder Care and Medical Marijuana in Massachusetts

The Massachusetts Act for the Humanitarian Medical Use of Marijuana (Medical Marijuana Law) took effect on January 1, 2013, legalizing the use of marijuana for medicinal purposes and exempting individuals with qualifying medical conditions from being penalized under Massachusetts law for marijuana use.

To become a “qualifying patient,” a doctor, licensed in Massachusetts, must have diagnosed the patient as having a debilitating medical condition such as cancer, multiple sclerosis, glaucoma, Crohn’s disease, Parkinson’s disease, HIV or AIDs. Other conditions are reviewed on a case by case basis. As one gets older, the proclivity to chronic illness increases, making many older adults candidates for this treatment option. With so many elderly adults residing in assisted living and skilled nursing facilities, it is interesting to consider how the use of medical marijuana will be handled in these instances.

A patient has a right to treatment and the assisted living or skilled nursing facility may not deprive a resident access to medical marijuana if they are a qualifying patient. The lingering issue is how to administer and store the medication. This may depend on the facility and whether the patient has a private apartment as in the assisted living scenario.

Regulations stipulate that a resident of a skilled nursing facility or assisted living may designate two caregivers. The caregivers may include family members. An employee of the skilled nursing or assisted living facility may also assist the patient by providing transportation to a Registered Marijuana Dispensary, as well as help them to prepare and administer the drug. Whether family or healthcare provider, a “personal qualified caregiver” must complete an application for registration as an individual who may assist and administer marijuana and, if approved, this registration card must be renewed annually.

Some assisted living and skilled nursing facilities are concerned with the legal issues that may arise with medical marijuana, since federal law deems marijuana possession a crime. However, if the appropriate channels are navigated and a Registration card is procured by both qualifying patient and personal qualified caregiver, there can be no penalty under Massachusetts law.

It is difficult to forecast the number of assisted living and skilled nursing facility residents who will be eligible for medical marijuana and choose it as a treatment option. Yet, with the new law, it is important to consider how this new treatment option will impact elder care in Massachusetts.

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Important Graduation Safety Reminder for your 2014 Graduates

Do you have a child 18+ years of age?
What happens if he/she is injured in a car accident?

Did you know that once your child/grandchild turns 18:

  • You no longer have access to his/her medical records
  • You no longer can call a hospital and see if he/she is admitted after an accident
  • You no longer can make health care decisions for him/her, should they become injured or incapacitated
  • You no longer can call a doctor’s office and make an appointment for him/her
  • You no longer can help him/her with banking
  • You no longer have access to his/her grades, and you no longer can assist your child/grandchild concerning his/her problems they may be experiencing at school
  • You no longer can call the mail order prescription service to get him/her medication

What can you do? Turning the age of 18 does not mean your child/grandchild no longer needs your assistance.

There is a simple solution:

  • Have him/her sign a Health Care Proxy and HIPAA Release
  • Have him/her sign a Durable Power of Attorney

We at Fields and Dennis, LLP are committed to educating people about the latest legal techniques that will protect you and your family.

Please call us at 781-489-6776 to schedule a complimentary 30 minute consultation.  NOW is the time to make decisions before your child/grandchild goes off to college….or if they are already in college, it is never too late.

Feel free to share this information with others who you think would benefit. It’s important to consider what would happen if you ever needed to assist your child/grandchild in a time of need.

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An Introduction to High-Net Worth Estate Planning

Estate planning is an important concern for anyone who desires their affairs be handled according to their wishes after their death.  Planning for high-net worth individuals and families is complex and dependent upon the particular desires of the family.

High-net worth estate planning should be handled carefully, so that your estate, which you’ve worked hard to build, is properly handled and the future of your legacy is secure.

From Irrevocable Life Insurance Trusts to Family Limited Partnerships, the experienced attorneys at Fields and Dennis know the ins and outs of complex estate planning, using advanced estate planning techniques to limit Federal and State estate taxes, gift taxes and generation skipping taxes.  This a accomplished through trusts, charitable gifting and other estate planning mechanisms.

To get started, here are a few considerations high-net worth individuals may want to think about when estate planning:

  • A Family Limited Partnership is exactly what its name suggests, a type of limited partnership among family members. For high-net worth families, an FLP offers the opportunity to save on estate and gift tax while simultaneously providing asset protection.
  • An Irrevocable Life Insurance Trust provides a way to hold your life insurance policy(ies) outside of your estate so the proceeds are not counted as part of your taxable estate. While life insurance is not taxable to the beneficiary, it is part of your taxable estate and its value will be diminished by estate taxes, resulting in significantly less for your loved ones. An Irrevocable Life Insurance Trust is an alternative that all individuals should consider.
  • A Qualified Personal Residence Trust (QPRT) is another way high-net worth individuals protect their assets. Since a home is often one of the largest portions of a taxable estate, a Qualified Personal Residence Trust provides a beneficial estate planning opportunity for high-net worth individuals and families.

Fields and Dennis has a wealth of estate planning experience and can help you make the best decisions regarding your assets for the longevity of your legacy and future well-being of your loved ones.

You have worked hard for your wealth and you deserve to know that it will be just as thoughtfully handled after you are gone. For HNW individuals and families this means special care to financial and tax concerns given an individual estate’s assets and liabilities.

If you are just beginning to think about estate planning, or are revaluating a current estate plan, you will surely have questions. Fields and Dennis can provide the answers you need and the peace of mind you require.

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College Planning for Special Needs Students

College is an investment in your child’s future and it is no doubt worth it, but with education costs rising, it can certainly be expensive. Planning for your child’s education should be a priority and many benefit from starting early. Starting a “college fund” in a child’s early years can be a smart investment, as it maximizes the amount of time you have to save, while also maximizing the amount of interest your money has time to earn.  Many consider a 529 College Savings Plan a great way to save for college because it sets aside the money and grows tax-free. But if your child has special needs, there may be more to consider. The Academy of Special Needs Planners recently discussed ‘College Savings for Students with Special Needs’ in their most recent newsletter, highlighting the pros and cons involved with various types of college savings options.

On the most basic level, a 529 College Savings Plan is an account set up for someone who is planning on attending college. Once the account is created, anyone can contribute to it and contributions to a 529 account qualify for $14,000 annual gift tax exclusion. A 529 College Savings Plan is also incredibly attractive from an investment standpoint because it is not subject to income taxes, maximizing the amount that will be available to the child when they attend college.

When considering a 529 College Savings Plan for a child with special needs, attention should be paid to how the account is set up and how it is utilized. Because of the way income limits impact government benefits and Supplemental Security Income, the 529 account should be handled carefully, and it should not be setup in the name of the child with special needs. (Although, choosing to set up an account in a child’s name is always something that should be considered given the impact it may have on financial aid options, which tend to be simpler when a parent holds the account.) If a relative sets up the 529 College Savings Plan for the child with special needs it will not impact the income of the child.

While a 529 College Savings Plan is an appealing investment and one that will greatly benefit a child planning on attending college, this aim can be complicated when considering a special needs child who is uncertain about college. If a 529 account is set up and the child ultimately does not need the money for a college education, giving the funds to the intended recipient for other uses may become problematic. A large gift could impact their benefits and it could also present tax consequences for you.

In these circumstances, it may have been better to use another savings vehicle or a special needs trust. A special needs trust can be created by anyone and is not limited in what the money must be used for, although it will not grow tax-free. A third option, and one that may be appealing in its simplicity, is to set up an investment account for yourself and use that money to pay for part of a child’s education. (If they do not attend college, the funds can be used for other expenses as the owner of the account sees fit.) Because a third party paying for educational costs doesn’t affect benefits, this may be an extremely attractive and straightforward option, although it does not have the tax benefits of a 529 College Savings Plan.

If you are considering an investment into the education of a special needs child, speaking with a special needs planner may be the best way to determine which choice is right for you.

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Estate Planning is for Everyone

A common planning misconception is that only those with vast assets need an estate plan. But, it is important to emphasize that estate planning is not just for the wealthy. For many, the word “estate” conjures up a Downton Abbey-like property and an overwhelming amount of zeros on your bank account balance, but estate planning is a must, regardless of your tax bracket.

An estate plan concerns more than money; it provides important directives for loved ones, without which they will be forced to make difficult decisions on your behalf, often causing internal strife and struggle within families.

While a larger estate may garner more complex trusts and further considerations of how to allocate assets, an estate plan of any size should be thoughtfully considered. After all, you want to provide for your loved ones as best as you can. Smaller estates, especially, will benefit from proper planning – ensuring that you get the most out of what you have to the benefit of your loved ones.

Estate plans of all sizes will want to include these five essential documents so that your intentions will be known, your wishes will be carried out, and your loved ones will be taken care of as best as possible.

Regardless of how large one’s estate may be, a medical directive is the same for everyone. Your chosen health care proxy should be someone with a clear head, who you trust to follow your instructions. Be sure to speak with this person about your wishes, as well as including the document in your estate plan.  That way, they will know what is expected of them, and will feel more comfortable if ever in the position to make decisions for you.

And, once in place, be sure to periodically follow up on your estate plan. Even if you feel that your estate isn’t significant enough to need a second look, life changes often require changes to one’s estate plan as well.  For example, beneficiaries may change with marriages, divorces, unfortunate passings, and new additions to the family.

Lastly, regardless of your income, your estate plan is an important way to pass on memories and words of love in the form of an ethical will or legacy letter. After all, a recent study has shown that memories and stories are a more valuable inheritance than any amount of money.

If you are thinking about estate planning, contact the compassionate and knowledgeable estate planning attorneys at Fields and Dennis, LLP. With extensive estate planning experience, from working with large estates to creating simple wills, Fields and Dennis can help you provide your loved ones with a secure future.

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Bitcoins and Estate Planning: Bequeathing Cryptocurrency

With the prevalence of Bitcoin as a form of digital currency, new considerations must be made when it comes to a variety of legal concerns. We recently looked at the repercussions of Bitcoin on divorce, but that is only the tip of the iceberg when it comes to the ways that Bitcoin is influencing how we must think about currency and transferring assets.

Another important consideration that should be made by those using bitcoins is what happens to this cryptocurrency after your death? When estate planning, you often take into account your assets, but what does this mean for bitcoins – an electronic currency that has only existed since 2009?

Bitcoin should be handled as would any other assets and should be passed to chosen beneficiaries. Yet, handling bitcoin is a bit different because it is digital currency that is protected with security measures that prevent others from accessing, even after your death – unless you make it a part of your estate plan.

One of the most straightforward ways of incorporating bitcoins into your estate plan is to make a copy of your bitcoin wallet. By doing this, you can easily allow access to another person, but this copy is now in need of its own security measures. It is important that if you go this route you have complete trust in the chosen beneficiary because it provides unconditional access to your wallet.

Another means of transferring your bitcoins to a beneficiary after your death is the use of M-of-N Transactions. Sending transactions becomes a bit more secure through the use of multiple signatures. For the purpose of estate planning, this transaction would be set up with three parties: you, your beneficiary, and a third party. For the transfer to be complete, two of the three would have to sign; upon your death, your beneficiary and the third party would sign to complete the transaction.

Because your beneficiary would not have access to the entirety of your bitcoin wallet (only this particular transaction), there is less risk involved. Yet, like any other estate planning component, research on the pros and cons should be done prior to putting the plan into place.

If you prefer to make the third party a computer server, this can be done using a ‘Dead Man’s Switch.’ With this transaction, a computer server with its own key can sign off on the transaction after your death. This server would evaluate whether you are alive via death certificate databases and/or periodic confirmation via an e-mail link. Only once your passing has been confirmed, will the server sign the transaction, transferring the bitcoins to your beneficiary.

Although this provides ease for all parties involved, while simultaneously protecting the entirety of your bitcoin wallet, it must be handled properly to be effective, including protecting the transaction, without which the bitcoins cannot and will not be transferred because of the level of security given to the transaction.

Ultimately, the world of estate planning is always changing with the law and technological advances, which is why you should be sure to reevaluate your existing estate plan at regular intervals. And it is important to remember that ones digital legacy should always be considered as part of any sound estate plan.

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5 Must-Have Estate Planning Documents

As the New Year progresses, there is no better time to start thinking about estate planning. To start your year off right, here is a checklist of the five must-have pieces to every solid estate plan.

1.  Will

This is the most obvious starting point of every estate plan – and, in fact, most people who have done some form of estate planning probably do have a will in place. Basically, a will is a legal document that provides a directive for how your property, finances, possessions, etc. will be divvied up after your death.  A will also allows you to appoint a legal guardian for minor children, as well as appoint someone as “executor” – which will allow them to carry out your wishes as stated in the will.  Yet, where property is concerned, a will only includes probate property, and there are many other types of property that may need additional attention depending on your circumstances.

2. Power of Attorney

Debatably the second most important part of any estate plan after a will, a power of attorney lets you appoint someone to make financial decisions for you if you become unable to do so.  Without a power of attorney in place, the court will be left to appoint a conservator – and this process will cost money, but more importantly, it may leave you with someone you would not have chosen making important decisions regarding your finances.

3.  Beneficiary Designations

Designating beneficiaries for your retirement plan may not be part of your official estate plan, but it is an important step to tying up loose ends and can be easily done while working on the rest of your estate plan.  Without naming beneficiaries, your benefits will be out of your control after your death, and this misstep could leave your loved ones with less financial security than they may have otherwise received had the simple step been taken. While many plans will automatically distribute to a surviving spouse or children, the only way to fully assure that your wishes are carried out is to solidify your beneficiary designations.

4. Medical Directives

Medical directives are vital to making sure your medical wishes are carried out if you are incapacitated or not of the mind to make these decisions. The directive may include multiple parts, including a power of attorney, a health care proxy, and a living will. Your health care proxy and power of attorney should be someone you trust to make medical decisions on your behalf if you are unable to do so. The living will expresses your wishes in regards to life support – whether you would like it sustained or withdrawn, should that decision need to be made. This is an important document on two fronts – first, it maintains that your wishes be carried out the way you would see fit, and second, it removes this emotional burden from loved ones faced with making a decision for you, without expressly knowing your preferences.

5.  Trust

Setting up a trust can allow individuals to control the distribution of their assets while they are alive and also after their death.  Trusts can have many uses, providing for surviving loved ones, providing for a family over generations or benefiting a charitable organization. Trusts can also have advantageous tax benefits for beneficiaries, protecting property and avoiding probate. A revocable living trust will terminate upon ones death, and the property will pass to beneficiaries, which can be a convenient way to save time and money.

So, if you are thinking about estate planning in the New Year, contact the experienced estate planning attorneys at Fields and Dennis. We can help with all of your estate planning needs, from a simple will to an encompassing estate plan that includes all of the must-haves listed above. If you are not sure which documents are important for your individual concerns, we can help you formulate a unique plan to suit your needs. With another year behind us, there is no time like the New Year to make an estate planning resolution.

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5 Estate Planning Nightmares from Around the Country

With the proper estate planning, the following situations could have been avoided. The truth is, many fail to adequately plan their estate, which can potentially lead to outcomes such as these worst-case scenarios.

1.  Mom had been in the nursing home on private pay for over 7 years.  After paying over $700,000 to the nursing home, the family consulted an attorney for estate planning.  The family had sold Mom’s house, spent all the proceeds on her care and were down to $40,000.  The attorney was able to preserve the $40,000, but all the other money and her home were lost.

2.  A skilled nursing facility told resident’s adult children there was no need for an attorney to assist with the Medicaid application for the parent, and that the skilled nursing facility would help with the application when the parent’s modest assets were at the appropriate level to apply.  All of this time, the parent was paying $8,000 per month to the facility.  Skilled nursing facility botched the application (parent had three vehicles and, though none were very new or valuable, all were worth more than the resource limit).  When the application was rejected, the skilled nursing facility began badgering kids for payment of about $30K in outstanding bills and threatened to evict the parent.

The most common scenario is one where the skilled nursing facility has a similar conversation with the family, does not botch the application and parent goes on Medicaid, but only after spending down all the assets by private-paying the skilled nursing facility.  The horror in that story is simply the amount of assets that are lost, that could have been preserved with proper advice and guidance.

3.  Parent private paid for nursing home until their assets were depleted.  With nothing left except the parent’s meager income, which included very small income streams from 3 immediate annuities, the family prepared the Medicaid application.  One annuity company added Medicaid as first beneficiary and all was okay.  Other two annuities were identical policies issued by another company when mom was 88 years old.  Those two annuities did not have beneficiaries, as they were joint guaranteed income for life annuities with income to the parent for life and then to a daughter for daughter’s life.  Daughter was willing to do a pseudo beneficiary designation to Medicaid by assigning the income payment to Medicaid, but the annuity company said no assigning, no beneficiary designation, no cashing out, no changing owner, etc.  Medicaid held the application open for eight months and worked with family and annuity company explaining what needed to be done, why, etc.  The annuity company refused to budge saying, “nothing can be done.”  In the end, the Medicaid application was denied, as the purchase of the annuities ($100,000) was deemed a gift because the annuities were not Medicaid compliant.  A penalty period was assigned and the family was in arrears to facility for 8 months with the penalty period running.

4.  Attorney did a Medicaid Asset protection analysis for a mentally incompetent woman in a nursing home.  The attorney was hired by her son, who was her attorney-in-fact.  The attorney discovered that the son was stealing from his mother by doing things such as living in her house rent free, paying himself $900 per week for visiting her once or twice a month and wiring money to unknown out-of-state recipients in amounts in the tens of thousands of dollars. The attorney confronted the son and advised him that unless all monies were returned within one week to mom’s account, the attorney would withdraw as attorney.  At the same time, the attorney advised the son of the criminal and civil penalties and other causes of action for breach of fiduciary duty and tortuous interference with an inheritance that he likely faced.  He was unrepentant and did not return money.  The attorney resigned and an anonymous phone call was made to Adult Protective Services.  The son was removed as attorney-in-fact, and replaced by an independent third party as guardian and the son is being pursued civilly.  It appeared to the attorney that the son had taken well over $150,000 out of a $300,000 estate.

5.  Elder with limited means and no estate planning in place had a bad stroke and wound up in a skilled nursing facility on private pay.  The skilled nursing facility said there was no need to get a lawyer and that they would assist the elder’s children with the Medicaid application, which they did.  The children lived in another state and knew nothing about Medicaid laws.  When the Medicaid application was months later rejected because of excess resources (a life insurance policy with cash surrender value of a few thousand dollars), and the elder had run through all other assets paying the skilled nursing facility, the skilled nursing facility said to children, “pay up the entire deferred private pay bill or come get your parent.”

With proper estate planning, the above nightmares could have been avoided. While these are extreme cases, many fail to properly estate plan, leaving themselves and their loved ones at risk of adverse consequences. If you are thinking about estate planning and want to provide security for your future care and the financial stability of your loved ones, consulting an estate planning attorney may be an important step. Contact the experienced estate planning attorneys at Fields and Dennis, and let us know how we can help you.

Posted in Beneficiaries, Elder Care, Estate Planning, Guardianship, Health Care Power of Attorney, Massachusetts estate planning, Medicaid, Will | Tagged , , , , , , , , | Comments Off