Click here for the September 2013 Newsletter!
A financial advisor initially referred the Lowell family to us. They were concerned about estate planning, taxes, and did not want to loose their life savings to a nursing home. When they came to our office, they had been told at a cocktail party, barbershop, or beauty parlor, they couldn’t remember which, that they should deed their home to their two children if they wanted to protect it. When I asked if it made sense for their children to be saddled with $150,000 capital gains tax, they replied, “No, of course not”. They thought it made a lot more sense to protect their home in a manner that would permit them to sell their home, which they eventually did, completely free of any capital gains tax, up to $500,000. The Lowells were even happier when they learned they could start the five-year look back period required to protect assets from being spent down on a nursing home if either got sick.
As part of our unique process, we asked the Lowells about their top planning goals. They talked to one and other and reported back to us that they wanted, above all else, to protect their life savings and home for each other in the event either got sick or went to a nursing home, so they could protect things for each other and leave a greater legacy for their two children. With their objective clear, we then helped create and put in place the planning necessary to help the Lowells accomplish their objectives. The sense of relief as a result of finally taking care of their estate and asset protection planning was visible on Lowells’ faces.
A number of years later, our office was contacted by an attorney trying to help sell the Lowells’ home. The attorney happened to be married to the real estate broker who was in the process of helping sell the home. Upon speaking with the attorney for the bank, we were told said the bank preferred working with the trustee of the trust, and after the home had been deeded to it. We were able to get the deed recorded and fortunately for the Lowells, that property was deeded to their trust, so the proceeds of the sale were fully protected from the nursing home. Additionally, the gain on the sale of the home was entirely tax free to their Protective Trust, just like they planned. As a result of carefull planning, the Lowells were able to sell and close on the property, protect the proceeds from the sale, and avoid paying capital gains tax.
Time passed and we did not hear from the Lowells for a few years. We tried to contact the Lowells’ son John, who had moved to California, to discuss the need to review planning in order to make sure that all of their life savings were coordinated with their Trust and protected from the cost of nursing homes, which cost $12,000 to $15,000 per month. They never did get together to review things, and as time went on, John eventually contacted our office saying, “Dad isn’t doing too well, and he’s going to be moving to a nursing home. The plan would be for mom is to stay in the house.” At this point, we hadn’t reviewed things in a several years, though we had developed the “Lifetime Protection Program”, a membership program designed to make sure that the members’ planning is up to date, protects all of their assets and is going to work the way it was supposed to when executed. Because of changes in the law, especially the new health care law and the coming estate tax changes, as well as changes in financial and personal circumstances planning needs to be monitored and maintained to make sure that clients are getting the best protection. This is possible with the “Lifetime Protection Program” even as laws, families, finances, and personal circumstances change. We reminded John again of the fact that reviewing planning crucial aspect of assuring that goals and objectives are accomplished.
Well, John said he’d get back to us, and a year and a half later we still hadn’t heard from him. By this time, the Lowells had sold the home, Mom was in assisted living in the same complex where Dad was getting nursing home care. The total cost was in excess of $16,000 per month. The problem however, was that it turned out there was $550,000 that had not been put in their Trust, as we recommended, so it was not protected! We contacted John and discussed a strategy to protect the $550,000. It was difficult since John lived in California, and his sister had moved to Europe. Because of the significance of the planning we were able to help.
It turned out that out of the $550,000 that had not been coordinated to the Asset Protection Trust, and if it was transferred now the five-year look back period would start all over again on the unprotected $550,000. We learned shortly thereafter Dad had taken a turn for the worse, and was probably not going to be with us too much longer. Learning about this, we introduced a special concept to the family, whereby the funds which normally avoid probate are coordinated with a testamentary trust. Only then the funds are allowed to avoid the five-year look back period. We quickly arranged to create a testamentary trust, which would protect the funds for Mrs. Lowell after Mr. Lowell died and eliminate the five-year look back period.
This plan was successful! After Mr. Lowell passed away, a testamentary supplemental needs trust was established with the $550,000, which will be available for the lifetime of Mrs. Lowell, and would not be subject to claims of the nursing home. Again, the family was grateful for what had been accomplished for Mrs. Lowell and the family.
As time went on, Mrs. Lowell remained in the assisted living for a number of years after Mr. Lowell had passed away and both the proceeds from the sale of the house protected originally and the additional $550,000 were protected.
Since our involvement with the Lowells, we have learned of even more special resources that may be available through Mass Community Health and other programs, which will allow seniors to continue to live in their home and community rather than a nursing home. One such program is for all-inclusive elder needs. Others include PACE, SCO and the Frail Elder Program. These new programs are available because nursing homes have become so costly and as a result of the fact that most people don’t need or want to go to a nursing home. Increasingly we have been able to help families who prefer to stay in their home, or retire in a community or assisted living, rather than going to a nursing home with health assessments and guidance on finding the right care specialty or facility.
We’ve introduced a new service called life care planning for all of our clients that looks for the years ahead as to senior running into mobility and memories issues, both simply concerns as we all age. Life care planning is a process that puts a long-term lens on the required planning that needs to become well ahead of time, in particular because the five-year look back, which most likely will be extended to eight or 10 years down the road. If you know of a family member in need of assistance finding the right facility, getting the right care, or the like, it is important to be educated and informed about the importance of this planning and what could be accomplished with proactive, forward looking protection to protect spouses, homes, life savings. For the long-term, there’s quite a bit that can be accomplished for families and their legacies.
The purpose of Life Care Planning is to put people in control of their health care and living accommodations rather than be forced into a nursing home prematurely, just because that seems to be the only option. People are much happier having options and control over their financial decisions, their health care, and their living situations.
In addition to the Mass Community Health programs there are a number of opportunities for Veterans. Married Veterans may be eligible to receive over $24,000 a year. Single Veterans may be eligible for $1,749 a month and widows of veterans approximately $1,100 per month. If you think you may be eligible, it is important to act quickly, as there has been a bill introduced that would create a three-year look back period for veteran’s benefits. This is a big set back to veterans in need of assistance.
There exists a wealth of opportunity for those that are informed and proactive about their planning. We’ve developed a unique 19-Point Trust Estate, Asset Protection Review Program to help people learn about opportunities to improve and enhance their planning so they don’t end up with on of the 86% of trusts that simply DO NOT WORK to accomplish the planner’s current goals and objectives. This failure rate is mainly attributable to the fact that plans are not reviewed, maintained, and adjusted as situations change. Unaccounted for changes in the law, in personal health or financial circumstances, and even changes in families can cause a once effective plan to fall into the 86% that fail. Don’t let that happen to you. Call our office at 781-237-2815 to discuss the above situation or any of the following topics:
Life Care Planning
Save Investing for Seniors
19 Point Trust, Estate, & Asset Protection Review and Guide
Complimentary DVD that explains why your living trust by itself will not protect you
At The Estate Planning and Asset Protection Law Center of Dennis Sullivan & Associates we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones. We provide our clients with a unique educational and counseling process so they understand where problems exist as well as where opportunities exist for significant improvement now as they implement plans for a protected future. We even provide a Lifetime Protection Program to ensure plans continue to meet client & family objectives in the future, even with all of the changes in taxes, healthcare, personal and family situations.
Come to a complimentary workshop to learn how protect you, your spouse, your family, your home, life savings and legacy. Register by calling 800-964-4295 (24/7) or visit us online at our website, www.DSullivan.com.
Changes in Health Care Law, Medicare, Medicaid, & MassHealth As Well As Estate Taxes…How do They Affect you?
The rules of paying for nursing home care can, quite frankly, get so complicated it makes your head spin!
We find that many families want to cut to the chase and find out now what their own personal bottom line is. If that’s you... if you want to know now how you might become eligible for protection and how much you might save, then call our office at (781) 237-2815 and let’s explore whether or not you’re likely to qualify and what you might be able to do if you would like to protect you spouse, home, and life savings.
If you stop for a minute and think about your retirement and life savings, you may have assets in lots of different places. MassHealth, however, focuses on dividing your financial assets into three different categories:
1. Available Assets; 2. Exempt Assets; 3. Unavailable Assets
What You Need to Know
The main focus of MassHealth is the available assets. This category is made up of assets that you could cash in and use for your own nursing home care. Available assets are also referred to as "countable resources." MassHealth views your available assets, the ones you should cash in and send every month to the nursing home, at a whopping $12,000 to $15,000 a month.
Most people do not have that kind of extra savings to pay for one or both spouses to go to a nursing home. If one is in a nursing home, the couple’s life savings must be spent down to $115,000. You read that right, if you do nothing, everything you own including your home, your IRA, and your entire life savings is at risk. This is the government’s plan for your money. It does not, however, have to be that way; you can override the government…but only if you take some important steps that many others have taken successfully to plan for their spouse and family.
The Good News: Planning Ahead & Taking Action Could Save Your Family Hundreds or Thousands of dollars
By taking action and implementing a Family Protection Plan, people and their families can avoid the required spend down, qualify for MassHealth, and still get the care they need. Do you want your hard earned life savings taken from your spouse & family to pay for your nursing home care? Would you rather leave a lasting legacy for your spouse, children, and grandchildren? Call our office today at (781) 237-2815 to begin discussing how you can avoid nursing home poverty and protect what matters most: your spouse, home and life savings. If you would like to attend a free educational workshop call (800) 964-4295 (24/7).
Will Medicare Pay for Your Alzheimer’s Care…Unfortunately, No!
One of the most common questions we are asked is, “Will Medicare pay for Alzheimer’s care? The simple answer is, NO, the Medicare will not pay for long-term care expenses, but Medicaid will. As a result, the burden of financing long-term care is placed on you, your life savings, and your family. If you do nothing, the cost of long-term care will come out of your pocket. It is crucial that you take action to avoid having to spend down your assets to pay for long-term care.
Recent studies have shown one half of all people over 80 will develop Alzheimer’s or another form of dementia. Because so many people are being diagnosed with Alzheimer’s or dementia, we have developed the free online resource center (www.BostonMemoryLawyer.com) to help people at every stage of the Elder Care Journey care for and protect their loved one with dementia or Alzheimer’s.
Recent Changes in the Law that Affect the Lives of Millions of Older Americans
With all the uncertainty in the tax law, the NEW HEALTH CARE LAW, shrinking federal and state budgets, combined with a growing senior population, a perfect storm is brewing. More and more seniors are going to need care with less money available to pay for care. An increasing number of seniors and families will be at risk of loosing everything to increasing health care and nursing home costs. Did you know that according to recent estimates, released on July 24, 2012, by the Congressional Budget Office, repeal of the new health care law would increase spending for Medicare by an estimated $716 billion over ther period from 2013 through 2022?
To learn more about how the new Health Care Laws affect older Americans, please see our new report, “Seniors Guide to Health Care Reform & Avoiding Nursing Home Poverty”, which contains information on the newly passed health care laws all seniors need to know.
What About How the Changes in the Estate Tax Law Will Affect you?
Additionally, significant estate tax changes are on the horizon. The estate tax exemption, currently at $5,120,000, will be reduced to $1 million. On January 2, 2013, the current top tax rate of 35% will increase to 55%. The Massachusetts estate tax exemption will remain at $1 million per person, with no portability. These looming changes are an important aspect of planning to consider in reviewing or creating your estate plan.
With all the changes in the law, finances, health, and personal circumstances, there is a tremendous amount of uncertainty. It does not have to be that way. If you'd like to understand how the changes affect you and your planning, as well as what steps you can take right now to protect you family, give us a call at (781) 237-2815. Our experienced team of caring and compassionate professionals can show you how MassHealth "sees" your life savings and if they will force you to spend them. We help families protect their lifesavings by transforming some of your "available" life savings into exempt, unavailable and even protected assets.
You Gain Understanding & Control
Research shows that 86% of trusts don’t work. That’s why we developed our Unique Self-Guided 19-Point Trust, Estate, & Asset Protection Legal Guide, so you can learn where problems may exist in your planning as well as opportunities for improvement and how to implement a plan to protect your spouse, home, family, and life savings. Click Here to Download the Guide.
At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones. We provide clients with a unique educational and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future, even with all these changes.
Nursing home care is more than $140,000-$180,000 per year! Attend this FREE educational seminar to learn:
How to protect your home and assets from the costs of long-term care
How to stay out of the nursing home and access in-home care
How to make sure your spouse is not left financially ruined if you need nursing home care
How to access Veterans benefits to pay for long-term care
How the MA & Federal Estate Tax Changes Affect You & Your Family
To register call (800) 964-4295 (24/7) or online at www.SeniorWorkshop.com
PS: All those who attend a workshop will receive our new report, “Seniors Guide to Health Care Reform & Avoiding Nursing Home Poverty”, which contains information on the newly passed health care laws all seniors need to know.
PPS: The Elder Care Journey is difficult to navigate, but with the help of our team of trusted advisors to guide you, the trip becomes a whole lot easier. Taxes and Health Care are important areas in which people and their families need to know who to trust. Click here to see what others are saying about their experience working with a team of dedicated, caring, passionate professionals at the Estate Planning & Asset Protection Law Center.
You may have heard that guardianship and/or conservatorship as a bad thing - something to be avoided. In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become incapacitated. Also, we need trustworthy and responsible family members to assist us, if we need help.
As attorneys we are increasingly running into the following situations:
1. Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in. Although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the documents in place to empower these helpers as their agents.
If you need information and help to assist a family member with dementia or Alzheimer’s visit www.BostonMemoryLawyer.com where you will be given free online access to the Complete Alzheimer’s Resource Kit, a $197 Value.
2. Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve. They may also be concerned about changes in the law, changes in their health, and changes in their financial situation. It is good practice to review your financial and legal documents on a periodic basis. To help clients keep up with changing situations we created the Life Time Protection Program, which provides clients with a yearly review, updates at no cost due to changes in the law, and the ability to contact our office with any questions or concerns they may encounter. We help people make sure their critical health care proxy, HIPPA document, and list of emergency contacts are not only up to date, but available 24/7, anywhere in the world AND we pay for our clients to have access to this service because we believe it is so important.
With important medical privacy laws such as HIPPA becoming more strictly enforced by hospitals and medical facilities, making sure you have the right authorization is more critical than ever. Without proper authorization, your loved ones, including your spouse, children, and parents, may not be able to assist you when you need it most. If you don’t have the proper authorization you may not be able to help loved ones when they need you. Because of the strictness of HIPPA, it is more critical than ever that you have current and effective health care proxies, HIPPA release forms, and durable powers of attorney. Clients should contact our office in order to review and update their documents over the mail or to schedule an appointment.
Another increasingly common situation is where seniors do not have agent-delegation planning in place and end up in a medical or living condition crisis where they are putting themselves or others at risk. Loyal family members and friends are very concerned, but nobody has the power to assist once they find out. No one should end up like Terri Schiavo. Ms. Schiavo did not have complete health care documents spelling out her wishes in the event of her incapacity or irreversible terminal illness. Her husband and parents waged war through years and years of heartfelt legal battles…not to mention heartbreak, tears and hard feelings. If you do not have the appropriate healthcare and disability documents your loved ones may be subjected to the same hardships as Terri Schiavo’s family in the event of your incapacitaty.
Alternatively, seniors may have excellent voluntary delegation planning in place, but the seniors are noncompliant about what they now need to do for their own safety and care. For example, they may need to live in an assisted living community or nursing home, but they voluntarily check themselves out and depart. They are free to make their own decisions, even though imprudent or unsafe, so they can walk right out and put themselves in danger. If they have access to an automobile, they put the general public at risk as well. If you or a parent would like to learn more about senior living options please contact our office at (781) 237-2815 and request information about Life Care Planning and Senior Living Options. We have helped clients find the living situation that is right for them, and get the care they need without sacrificing their hard earned life savings to pay for it.
Adult Protective Services
In emergencies, where the seniors are unwilling to cooperate and their intransigence is putting themselves or others at risk, often the first call should be to Aging Service Access Point (ASAP). ASAP is a state agency, typically within the department of "human services" or "elder services". ASAP generally will appoint a social worker or staff person to investigate, perhaps with local police in order to gain access to the senior and entry into the home.
Seeking Court Protection
Whether or not ASAP gets involved, and whether or not the case is an emergency or just a situation where the senior needs help and is not willing or able to sign voluntary agent-delegation documents, the solution is often a guardianship and/or conservatorship over the senior, if he or she meets the applicable standards of incapacity.
Terminology varies from state to state, but in general, guardianship (sometimes called "guardianship of the person") applies to probate court appointment of a fiduciary ("guardian") to make decisions in regard to the protected person's personal care. A guardian generally does not have control of the protected person's finances, although state law or the specific terms of the guardianship may authorize the guardian to hold small amounts of the protected person's funds if no conservator has been appointed and the protected person does not have a durable power of attorney.
Conservatorship refers to probate court appointment of a fiduciary ("conservator") to administer the finances of the protected person. Conservatorship is much like trusteeship, although the powers of and restrictions on the conservator are defined by statute and regulation, rather than a voluntary trust agreement or trust declaration, and are typically are much less flexible than the powers authorized for trustees. Conservatorships are also analogous to durable powers of attorney. However, one of the key differences between conservatorships, trusts and durable powers of attorney is that conservatorships are court-supervised and directly accountable to the court. It is common for conservators to be required by state law and regulations to account annually to the probate court. Such accounting needs to be accurate to the penny.
A conservator does not have plenary power to do whatever financial transactions he or she feels are warranted. For example, a conservator needs specific court authorization to sell real estate in most states.
Imposing Minimum Restrictions
For a guardian and/or conservator of an adult, the probate code generally imposes a standard that the protected person's rights are to be removed to the minimum degree necessary to protect him or her. This is because the removal of personal rights and liberty by the court is analogous to a civil form of imprisonment. Where a protected person is capable of making some kinds of decisions safely and prudently in regard to his or her living conditions, care, or finances, the theory is that his or her rights to make such decisions should be preserved as long as possible. On a practical level, keeping seniors involved in their care and financial decisions also helps to keep them engaged with life, reality, and higher mental functions, so this legal construct is very consistent with practical experience in care giving for seniors who are in a process of deteriorating mental capacity. There is a growing movement nationwide to maximize decision-making by adults who are under guardianship and/or conservatorship.
Although attorneys correctly advise clients to plan to avoid unnecessary guardianship and conservatorship, there are many situations where a guardianship and/or conservatorship is appropriate and very beneficial. Court supervision in difficult cases can be beneficial to impose financial accountability and to bring about sound decisions for the care of a protected person. Under modern guardianship and conservatorship theory, courts impose the minimum restrictions on protected persons that are needed to accomplish the personal safety and prudent financial management that are the goals of these court-supervised protective measures.
Estate Tax Increase Pending
Since Massachusetts continues to tax all estates over $1 million, it is important to make sure your planning is current so that a completely avoidable estate tax is not triggered at the first death due to the TEMPORARY extension of the Bush estate tax law. Please note however, that the temporary extension is set to expire at the end of 2012. As a result, without congressional action a federal estate tax of up to 50% will also apply to all estates above $1 million after January 1, 2013.
Review & Update to Maintain Control of Financial & Health Care Decisions & Reduce Taxes
For clients, once we receive your information we will contact you to arrange for updates to be done via mail or to schedule an appointment to come in and to review your situation in person. The entire process is quick and painless and you will have the peace of mind of know you are prepared for 2012 and beyond, even with the federal estate tax increase scheduled for January 1, 2013.
Our team’s ultimate objective is to help you and your family to accomplish your estate planning and asset protection goals. If you’ve recently signed your estate planning documents you are included in the Lifetime Protection Program at no cost for the first year. If you have a friend or family member who would like our help please let us know! If your friend or family member becomes a client you get One FREE YEAR Membership in the Lifetime Protection Program.
If you have any questions or would like to discuss questions raised in this newsletter please feel free to contact our office.
We encourage you to attend a free educational workshop hosted at the Estate Planning & Asset Protection Resource Center in order to learn more about how a review by our dedicated team of professionals can help identify problems in your existing planning as well as where opportunities for improvement may exist. You CAN create a plan to protect your spouse, home, and life savings. To register call (800) 964-4295 (24/7).
Tags: long term care, Alzheimer's Disease, Estate Planning, Lifetime Protection Program, elder care journey, durable power of attorney, Health Care, health care proxy, Elder Law, HIPAA, seniors, non-family caregivers