Elder Law / Medicaid Planning

We all want to be in control, to go where we want at our leisure.  As we age, however, our senses and reaction times begin to slow which can make getting behind the wheel increasingly hazardous. It is important to be realistic about the driving abilities of loved ones as they reach a certain stage and to prepare accordingly. Not only will it keep seniors safe, but planning ahead will help them financially as they make other arrangements for transportation.

The first step is to reduce the need to drive. Find ways to bring the things they need right to them, like ordering groceries online for delivery and encouraging in-home appointments. Suggest that they invite friends and family over for regular visits instead of going out. They may be surprised by how many things are possible from the comfort of their own home.

For the times your loved ones need to, or want to, venture elsewhere, look into other transportation options. Although there is usually no need to quit driving all at once, look to family, friends, taxis, and public transportation when you can, especially for longer trips. Use the money you’ve been saving, along with what would have been spent on gas, on alternate modes of transportation. Their town may even have designated senior transportation services. 

The time to start making this transition may be sooner than you or your loved ones think. Don’t wait until an accident leaves them with no alternative. It may be time to start talking about limiting driving if they report noticing subtle difficulties, like trouble reading traffic signs or delayed breaking. Keep an eye out for small dings in your loved one’s car or surrounding items, like the mailbox or garage door, along with slower response time or difficulty finding their way around familiar territory. Ask them to watch for these things as well.

Asking a loved one to turn over their keys can be tough but with an open dialogue, the right support system and reasonable alternatives in place to ensure that they can continue to live an active lifestyle, a smooth transition is feasible.  

Day 5: Free Online Trust Based Estate Plan Package¹

The LegalJourney Law Firm is providing a free “Online Trust Based Estate Plan Package” for the first 2 individuals who sign up for a new client account via the online legal services link at www.legaljourney.com. 

To set up a free online account:

1.     Go to www.legaljourney.com;

2.     Select “Click Here For Online Legal Services”;

3.     Select “Register for a New Online Legal Services Account today!"

Create a user account and you will be notified within 24 hours if you will be a recipient of todays offer.

The LegalJourney Law Firm’s Online Will based Estate Plan Package includes: a Will, a Living Will, Health Care Power of Attorney, HIPPA Authorization and Durable Power of Attorney.

To find out additional details, please contact the LegalJourney Law Firm PLLC

¹This offer is available until close of business May 17th, 2013

Day 4: Free Online Will Based Estate Plan Package¹

The LegalJourney Law Firm is providing a free “Online Will Based Estate Plan Package” for the first 2 individuals who sign up for a new client account via the online legal services link at www.legaljourney.com. 

To set up a free online account:

1.     Go to www.legaljourney.com;

2.     Select “Click Here For Online Legal Services”;

3.     Select “Register for a New Online Legal Services Account today!"

Create a user account and you will be notified within 24 hours if you will be a recipient of todays offer.

The LegalJourney Law Firm’s Online Will based Estate Plan Package includes: a Will, a Living Will, Health Care Power of Attorney, HIPPA Authorization and Durable Power of Attorney.

To find out additional details, please contact the LegalJourney Law Firm PLLC

¹This offer is available until close of business May 16th, 2013.

Day 3: Free Power of Attorney and Declaration of Preneed Guardian¹

The first 4 individuals who contact the LegalJourney Law Firm using the "Contact the Firm" option on www.legaljourney.com will receive a free Florida Power of Attorney and a free Florida Declaration of Preneed Guardian.

The LegalJourney Law Firm’s Day 3 offer includes: an interview with an attorney, a customized power of attorney, a customized declaration of preneed guardian and notarization² of your documents.

To find out additional details, please contact the LegalJourney Law Firm PLLC

¹This offer is available until close of business May 15, 2013.

²Notarization is only available to residents of the Tampa Bay Area

Day 2: Free Online Power of Attorney¹

The LegalJourney Law Firm will provide a free “Online Power of Attorney” for the first 4 individuals who sign up for a new online client account via the online legal services link on www.legaljourney.com.

To set up a free online account:

1.     Go to www.legaljourney.com;

2.     Select “Click Here For Online Legal Services”;

3.     Select “Register for a New Online Legal Services Account today!"

Create a user account and you will be notified within 24 hours if you will be a recipient of todays offer.

Everyone who connects with the LegalJourney Law Firm PLLC via the LegalJourney Blog, LinkedIn, Twitter, and/or Facebook during the month of May will receive 10% off any online legal service.

Florida Statute Section 709.2101 through 709.2402 (effective date October 1, 2011): Although still effective, everyone with a Power of Attorney (POA) created prior to October 1, 2011 should discuss his or her options with a knowledgeable estate-planning attorney. Issues have arisen in the past with financial institutions not accepting POAs or requiring their specific form to be signed. However, for POAs created under the new Statute, per section 709.2120, F.S., a third person is required to accept or reject a POA within a reasonable time and is not allowed to require an additional or a different POA for authority granted in the present POA. If the third person rejects a POA under the new Statute, they could be held liable for damages and attorney fees.

¹This offer is available until close of business May 14th, 2013.

Attorney Karnardo Garnett of the LegalJourney Law Firm in Tampa will participate in National Elder Law Month by offering seminars and attending expos discussing the importance of planning.

With a growing population of Americans age 65 years or older, the importance of planning for one’s legal needs has become essential.

Attorney Garnett will be hosting or participating in the following events during the month of May:

• 5/15 - University Village: Annual Health & Wellness Expo 12401 North 22nd St, Tampa 33612
• 5/16 - Advanced Retirement Strategies and Asset Protection Workshop: Brio Tuscan Grille 2223 North Westshore Blvd Tampa, FL 33607 at 6:00pm 
• 5/21 - Advanced Retirement Strategies and Asset Protection Workshop: Brio Tuscan Grille 2223 North Westshore Blvd Tampa, FL 33607 at 6:00pm 
• 5/30 - Avoiding the Top Ten Estate Planning Mistakes: Grand Court 4902 Bayshore Blvd  Tampa, FL 33611 at 6:30pm

Attorney Garnett, a resident of Tampa since 1984, has practiced law for several years and focuses his practice on Estate Planning, Elder Law and Asset Protection.  Attorney Garnett is a member of the Florida State Bar Association and the National Academy of Elder Law Attorneys (NAELA).

Law assumes a person with disabilities lacks the equality or mental capacity to enter into a contract.

By Michael J. Amoruso, Esq.

Have you ever witnessed the distress of dignity being stripped from a person simply due to a physical disability that prevents the person from entering a store because her or his wheelchair cannot go up a step that leads into the building?

All Citizens Deserve Dignity and Equality
With the passage of the Americans with Disabilities Act of 1990 (ADA), Congress made a big leap forward in providing a means for individuals with disabilities to gain access and accommodations to give them the dignity and equality they deserve as citizens. Yet, even to this day, those of us with disabilities must continue to erase the historic, age-old stereotype that a person with a disability is a lesser individual than her or his able-bodied neighbor. Not a day goes by that my routine is not disrupted because I must advocate for my right to allow my Seeing Eye dog to guide me through the corridors of public buildings - and I am a lawyer. Can you imagine how difficult and demoralizing that would be for someone who doesn’t have the legal training and/or assertiveness that I possess?

You are probably wondering why I am sharing with you these daily challenges. Well, I have identified one inequity that can be fixed. Merely one year after the ADA went into effect, Congress made what appears to be a legislative drafting error that has the profound effect of codifying an unimaginable presumption in our country – the presumption that a person with disabilities lacks the equality or mental capacity to enter into a contract. We would not make that presumption about President Franklin D. Roosevelt, Helen Keller, Ray Charles or our wounded veterans!

What Are Supplemental Needs Trusts?
Specifically, in 1993, Congress added a wonderful concept called a “Supplemental Needs Trust” to the Omnibus Budget Reconciliation Act of 1993 (OBRA 1993). This concept permits an individual with disabilities under age 65, who relies on Medicaid for health benefits and/or Supplemental Security Income (SSI) to survive, to have a Supplemental Needs Trust (SNT) established to hold his or her savings.

The benefit of the SNT is that it allows this individual to have supplemental funds to pay for daily living items that such benefits do not cover, such as:

• shampoo and other toiletries,
• haircuts,
• magazine subscriptions,
• tickets to the movie theater,
• clothing,
• hobbies,
• furniture for the home, and
• computers.

These items can make the difference between simply existing and enjoying life. The SNT can also pay for health care not covered by Medicaid, such as experimental or alternative medical treatments. The funds put in the SNT are often provided by a loved one or from a legal settlement.

In order to qualify for Medicaid or SSI, a person must meet financial thresholds. The SNT hedges against the risk of complete impoverishment and the inability to meet what most of us consider to be basic living needs. In exchange for that protection, upon the disabled individual’s death, the state is reimbursed from the trust assets for Medicaid benefits paid to the individual during his or her lifetime. Following in the footsteps of the ADA, this concept has helped advance the quality of life and opportunities for those with disabilities.

There are various kinds of SNTs that disabled individuals can chose from, depending on a variety of factors, such as the disabled individual’s age and the amount of assets that will be placed into the trust. A (d)(4)(C) pooled trust is administered by a nonprofit organization, where each disabled individual has a separate subaccount within the trust and the trust assets are pooled together for investment and management purposes.  Unlike (d)(4)(C) pooled trusts, (d)(4)(A) trusts are not administered by a nonprofit organization but rather the trust is managed by a trustee, sometimes a family member, for the sole benefit of the disabled individual.

In addition to the provisions established by OBRA 1993, USC §1396p(d)(4)(A) further provides that, to have the benefit of the SNT, the trust must be established by a parent, grandparent, legal guardian of the individual, or a court. Let’s revisit that point: The SNT must be established by the parent, grandparent, legal guardian of the individual or a court. Now, can the reader identify who is missing from this list of eligible individuals? That’s correct …the individual. Evidence of this unfortunate oversight can be seen in the very next sentence of the statute that offers protections to a similar SNT known as a “pooled trust.” In particular, that provision authorizes the pooled trust to be established by the parent, grandparent, or legal guardian of such individuals, by such individuals, or by a court.

Denying a Basic Right
Aside from the mistaken presumption that such individuals lack capacity to establish their own SNT, this omission results in inequitable and unnecessary legal costs and time for the individual with disabilities. Imagine the impact on a person who does not have the luxury of a living parent or grandparent and does not lack mental capacity that requires the appointment of a legal guardian. That person’s sole option is to hire a lawyer to petition the court to exercise a fundamental right that the person is born with in our country. Depending on one’s geographic location, this cost could range from $1,500 to more than $6,000.

This dilemma was recently experienced by a 62-year-old client of mine who was the victim of medical malpractice, which rendered her paralyzed and confined to a nursing home that charges over $100,000 per year for her care. She not only has the mental capacity to direct her care in the facility, but she also was the star witness in her lawsuit, testifying in court as to her ordeal. When it came time to set up her SNT, I had to inform her that she could not simply sign the SNT, but instead, since she did not have a parent, grandparent, or legal guardian, she had to petition the court to authorize it. My words cannot convey the shock on her face. My words also cannot convey the shock on the faces of the legislative assistants in Congress when I informed them that I, a blind and moderately deaf attorney who has drafted thousands of SNTs for clients, would not even be able to sign my own SNT in the future.

Congress Must Act
NAELA is working to change this injustice. NAELA will join forces with the Leadership Council of Aging Organizations and theConsortium for Citizens with Disabilities in lobbying efforts, as well as individual members of these coalitions. NAELA members are also taking individual action by calling on their Congressional Representatives and Senators to make this justified and cost neutral change to USC §1396p(d)(4)(A) to insert the phrase by such individuals so that those of us who have disabilities can regain the dignity we deserve and remove the misplaced presumption that we lack capacity due to our disabilities.

About the Author
Michael J. Amoruso, Esq., is managing partner of Amoruso & Amoruso, LLP, Rye Brook, N.Y. He is a member of the National Academy of Elder Law Attorneys Board of Directors. Mr. Amoruso has had hearing loss since he was young. As a young adult, he learned he was going blind. When he was a newly admitted attorney, one of his first assignments was to draft a Supplemental Needs Trust. This experience helped him decide to focus on Elder and Special Needs Law.

You don’t have to be retired to dip into your Social Security benefits which are available to you as early as age 62.  But is the early withdrawal worth the costs?

A quick visit to the U.S. Social Security Administration Retirement Planner website can help you figure out just how much money you’ll receive if you withdraw early. The benefits you will collect before reaching the full retirement age of 66 will be less than your full potential amount.

The reduction of benefits in early withdrawal is based upon the amount of time you currently are from full retirement age. If you withdraw at the earliest point of age 62, you will receive 25% less than your full benefits.  If you were born after 1960, that amount is 30%. At 63, the reduction is around 20%, and it continues to decrease as you approach the age of 66.

Withdrawing early also presents a risk if you think there is a chance you may go back to work. Excess earnings may be cause for the Social Security Administration to withhold some benefits. Though a special rule is in existence that withholding cannot be applied for one year during retired months, regardless of yearly earnings, extended working periods can result in decreased benefits. The withheld benefits, however, will be taken into consideration and recalculated once you reach full retirement age.

If you are considering withdrawing early from your retirement accounts, it is important to consider both age and your particular benefits. If you are unsure of how much you will receive, you can look to your yearly statement from Social Security. Social Security Statements are sent out to everyone over the age of 25 once a year, and should come in the mail about three months before your birthday. You can also request a copy of the form by phone or the web, or calculate your benefits yourself through programs that are available online at www.ssa.gov/retire.

The more you know about your benefits, the easier it will be to make a well-educated decision about when to withdraw. If you can afford to, it’s often worth it to wait. Ideally, if you have enough savings from other sources of income to put off withdrawing until after age 66, you will be rewarded with your full eligible benefits.
 

The “ostrich syndrome” is part of human nature; it’s unpleasant to observe that which frightens us.  However, pulling our heads from the sand and making preparations for frightening possibilities can provide significant emotional and psychological relief from fear.

When it comes to Alzheimer’s disease and other forms of dementia, more Americans fear being unable to care for themselves and burdening others with their care than they fear the actual loss of memory.  This data comes from an October 2012 study by Home Instead Senior Care, in which 68 percent of 1,200 survey respondents ranked fear of incapacity higher than the fear of lost memories (32 percent).

Advance planning for incapacity is a legal process that can lessen the fear that you may become a burden to your loved ones later in life.

What is advance planning for incapacity?

Under the American legal system, competent adults can make their own legally binding arrangements for future health care and financial decisions.  Adults can also take steps to organize their finances to increase their likelihood of eligibility for federal aid programs in the event they become incapacitated due to Alzheimer’s disease or other forms of dementia.

The individual components of advance incapacity planning interconnect with one another, and most experts recommend seeking advice from a qualified estate planning or elder law attorney.

What are the steps of advance planning for incapacity?

Depending on your unique circumstances, planning for incapacity may include additional steps beyond those listed below.  This is one of the reasons experts recommend consulting a knowledgeable elder law lawyer with experience in your state.
 

1. Write a health care directive, or living will.  Your living will describes your preferences regarding end of life care, resuscitation, and hospice care.  After you have written and signed the directive, make sure to file copies with your health care providers.
    
2. Write a health care power of attorney.  A health care power of attorney form designates another person to make health care decisions on your behalf should you become incapacitated and unable to make decisions for yourself.  You may be able to designate your health care power of attorney in your health care directive document, or you may need to complete a separate form.  File copies of this form with your doctors and hospitals, and give a copy to the person or persons whom you have designated.
    
3. Write a financial power of attorney.  Like a health care power of attorney, a financial power of attorney assigns another person the right to make financial decisions on your behalf in the event of incapacity.  The power of attorney can be temporary or permanent, depending on your wishes.  File copies of this form with all your financial institutions and give copies to the people you designate to act on your behalf.
    
4. Plan in advance for Medicaid eligibility.  Long-term care payment assistance is among the most important Medicaid benefits.  To qualify for Medicaid, you must have limited assets.  To reduce the likelihood of ineligibility, you can use certain legal procedures, like trusts, to distribute your assets in a way that they will not interfere with your eligibility.  The elder law attorney you consult with regarding Medicaid eligibility planning can also advise you on Medicaid copayment planning and Medicaid estate recovery planning.

Day 8: Free Power of Attorney and Declaration of Preneed Guardian¹

The first 4 individuals who contact the LegalJourney Law Firm using the "Contact the Firm" option on www.legaljourney.com will receive a free Florida Power of Attorney and a free Florida Declaration of Preneed Guardian.

The LegalJourney Law Firm’s Day 8 offer includes: an interview with an attorney, a customized power of attorney, a customized declaration of preneed guardian and notarization² of your documents.

To find out additional details, please contact the LegalJourney Law Firm PLLC

¹This offer is available until close of business January 11, 2013.

²Notarization is only available to residents of the Tampa Bay Area

Day 6: Save $300 on a Trust Based Estate Plan¹

The LegalJourney Law Firm is providing $300 off a “Trust based Estate Plan” for anyone who contacts the firm prior to close of business on January 11, 2013 and schedules an appointment for a consultation.

The LegalJourney Law Firm’s Trust based Estate Plan includes: a Revocable Trust, a Will, a Living Will, a Health Care Surrogate, HIPPA Authorization and a Durable Power of Attorney.

To find out additional details, please contact the LegalJourney Law Firm PLLC.

¹This offer is available until close of business January 11th, 2013.