In our last blog we mentioned a New York Times series focusing on retirement. These articles serve to raise awareness and to inform people of the importance of making financial decisions based on their specific needs and Medicaid Planning. The most recent article in the series dealt with reverse mortgages. As many of you may know, a reverse mortgage is a loan with a bank, where the bank pays the homeowner either monthly or in a lump sum, compared with a typical mortgage where the homeowner makes monthly payments to the bank. For some clients a reverse mortgage can be a terrific estate planning tool to make funds available to keep an elder in their home. However, the New York Times points out that reverse mortgages are not appropriate for everyone.
Reverse mortgages have very high closing costs, sometimes as high as eight percent of the loan. Questions consumers should ask to determine if a reverse mortgage is their best option:
How long do you plan to stay in your home? If you plan to stay home for just a couple of years, other kinds of loans might make more sense.
What do you plan to use the money for? If you are using the money for a vacation or plan to invest the funds, do not proceed with a reverse mortgage.
If you have any questions pertaining to Medicaid, guardianship, conservatorship or other elder law issues, please feel free to contact us Cohen & Oalican, LLP
Wednesday, December 30, 2009
Friday, December 25, 2009
Cohen & Oalican discuss how "You Can Have Your Benefits And Defer Them, Too"
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Part 2
On Thursday, October 23, 2008, the New York Times included a Special Section entitled "Retirement" containing a number of interesting and informative articles. Given the present financial crisis and the resulting uncertainties we face, it is more important than ever to be well informed about financial and legal issues which may impact our families and to do some medicaid planning. We encourage you to read these articles as well as other articles which impact seniors at the New York Times website.
"You Can Have Your Benefits And Defer Them, Too" explains that retirees who start collecting their Social Security benefits at the age of 62, can later, at the age of 70, file a withdrawal application and get the maximum benefits after repaying what they have collected so far. The article discusses the advantages and disadvantages of electing to collect benefits before the age of 70, financial and otherwise, and provides examples as well.
The full article can be accessed at the following link: Article.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Part 2
On Thursday, October 23, 2008, the New York Times included a Special Section entitled "Retirement" containing a number of interesting and informative articles. Given the present financial crisis and the resulting uncertainties we face, it is more important than ever to be well informed about financial and legal issues which may impact our families and to do some medicaid planning. We encourage you to read these articles as well as other articles which impact seniors at the New York Times website.
"You Can Have Your Benefits And Defer Them, Too" explains that retirees who start collecting their Social Security benefits at the age of 62, can later, at the age of 70, file a withdrawal application and get the maximum benefits after repaying what they have collected so far. The article discusses the advantages and disadvantages of electing to collect benefits before the age of 70, financial and otherwise, and provides examples as well.
The full article can be accessed at the following link: Article.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Wednesday, December 16, 2009
Facing the Realties of Long-Term Care
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
On Thursday, October 23, 2008, the New York Times included a Special Section entitled "Retirement" containing a number of interesting and informative articles. Given the present financial crisis and the resulting uncertainties we face, it is more important than ever to be well informed about financial and legal issues which may impact our families and to do some medicaid planning. We encourage you to read these articles as well as other articles which impact seniors at the New York Times website.
"Young Workers Must Face Realties of Long-Term Care" focuses on the the need for baby boomers, many of whom are caring for elderly parents, to consider their own potential need for long-term care in the future. Faced with the rising costs of nursing home residence and the present economic crisis, this article answers basic questions concerning long-term-care insurance: when to buy coverage, where to buy coverage, how much coverage is needed, etc. The full article can be accessed at the following link: Article.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
On Thursday, October 23, 2008, the New York Times included a Special Section entitled "Retirement" containing a number of interesting and informative articles. Given the present financial crisis and the resulting uncertainties we face, it is more important than ever to be well informed about financial and legal issues which may impact our families and to do some medicaid planning. We encourage you to read these articles as well as other articles which impact seniors at the New York Times website.
"Young Workers Must Face Realties of Long-Term Care" focuses on the the need for baby boomers, many of whom are caring for elderly parents, to consider their own potential need for long-term care in the future. Faced with the rising costs of nursing home residence and the present economic crisis, this article answers basic questions concerning long-term-care insurance: when to buy coverage, where to buy coverage, how much coverage is needed, etc. The full article can be accessed at the following link: Article.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Sunday, December 6, 2009
UPC and Health Care Proxy/Living Will
Welcome to the final article in the series covering Uniform Probate Code
B. Health Care Proxy/Living Will
A health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy." M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia.
Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. The proxy will permit the agent to order the withdrawal of such life support. A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. Alternates should be named in the event the first person appointed cannot serve for any reason. To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. M.G.L. c.201D §3.
It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. More capacity is required to give medical directives than is required simply to delegate decision-making authority. These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. If the principal's family ever has to make these difficult decisions, their burden will be eased by the expression of a principal's wishes provided by a directive.
According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. Unlike a typical power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent.
In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records.
The role of the health care proxy continues to be clarified. Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. This rules applies even if the patient was accepting the medication.
More recently, the Massachusetts Supreme Judicial Court held that the Massachusetts health care proxy statute allows an agent to commit a principal to a mental health facility providing the principal does not object. (Cohen v. Bolduc, SJC 08554, 1/11/02)
This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. In that event, the agent would have to obtain court authority.
In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy.
In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. In addition, a guardian cannot revoke a health care proxy without obtaining court authority.
Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions.
Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a person to make medical decisions on their behalf. A living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. The health care proxy is the more important of the two documents. Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. If the client lists one hundred situations, the agent may face a situation that is not listed. In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. The healthcare proxy can be drafted to include “medical directive” language. A medical directive describes in broad general language what the clients wishes are regarding treatment. Because the directive is general rather than specific, the health care agent can apply it to any situation they face.
This series has been brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
B. Health Care Proxy/Living Will
A health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy." M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia.
Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. The proxy will permit the agent to order the withdrawal of such life support. A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. Alternates should be named in the event the first person appointed cannot serve for any reason. To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. M.G.L. c.201D §3.
It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. More capacity is required to give medical directives than is required simply to delegate decision-making authority. These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. If the principal's family ever has to make these difficult decisions, their burden will be eased by the expression of a principal's wishes provided by a directive.
According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. Unlike a typical power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent.
In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records.
The role of the health care proxy continues to be clarified. Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. This rules applies even if the patient was accepting the medication.
More recently, the Massachusetts Supreme Judicial Court held that the Massachusetts health care proxy statute allows an agent to commit a principal to a mental health facility providing the principal does not object. (Cohen v. Bolduc, SJC 08554, 1/11/02)
This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. In that event, the agent would have to obtain court authority.
In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy.
In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. In addition, a guardian cannot revoke a health care proxy without obtaining court authority.
Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions.
Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a person to make medical decisions on their behalf. A living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. The health care proxy is the more important of the two documents. Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. If the client lists one hundred situations, the agent may face a situation that is not listed. In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. The healthcare proxy can be drafted to include “medical directive” language. A medical directive describes in broad general language what the clients wishes are regarding treatment. Because the directive is general rather than specific, the health care agent can apply it to any situation they face.
This series has been brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Monday, November 30, 2009
Uniform Probate Code - Advance Directives
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Uniform Probate Code - Advance Directives
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Monday, November 23, 2009
Cohen & Oalican discuss Elderlaw Planning and the UPC
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
ADVANCED DIRECTIVES
There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness.
A. Power of Attorney
In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes.
There are few formalities to creating a power of attorney. However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States.
If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. If you want the agents to be able to act separately, the form must state this explicitly. However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. In deciding who to appoint the client should obviously consider whether the person is trustworthy. Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. Finally, be careful not to appoint anyone who has a history of financial problems. The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs.
It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed.
Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. A client has the option of executing a "springing" power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney.
A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automaticallyrevoke a power of attorney. In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification.
The attorney-in-fact owes a fiduciary duty to the person who appoints them. M.G.L. c.201B §3
(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: (1) account; segregate assets; make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; not delegate the responsibility to someone else; and not to self deal. U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
ADVANCED DIRECTIVES
There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness.
A. Power of Attorney
In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes.
There are few formalities to creating a power of attorney. However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States.
If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. If you want the agents to be able to act separately, the form must state this explicitly. However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. In deciding who to appoint the client should obviously consider whether the person is trustworthy. Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. Finally, be careful not to appoint anyone who has a history of financial problems. The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs.
It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed.
Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. A client has the option of executing a "springing" power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney.
A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automaticallyrevoke a power of attorney. In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification.
The attorney-in-fact owes a fiduciary duty to the person who appoints them. M.G.L. c.201B §3
(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: (1) account; segregate assets; make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; not delegate the responsibility to someone else; and not to self deal. U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Thursday, November 19, 2009
Cohen & Oalican discuss The UPC and guardians
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd...
Reports
In the past, courts have only been involved in keeping track of the incapacitated person’s finances. Specifically, guardians and conservators were required to file annual accountings to show how they were managing the funds. The UPC directs the probate courts to create a new system to monitor guardians. Guardians are now required to file a report within sixty days of their appointment describing the person’s condition, living arrangements, what the guardian has done on behalf of the person, plans for future care and whether the guardianship should continue. The guardian is required to then file these reports on an annual basis. It remains to be seen how the courts will monitor whether these reports are being filed.
Special Guardians
If a guardian is not meeting his or her obligations and the incapacitated person is at risk, the court has the authority to appoint a “special guardian” to take over as the patient’s guardian for up to ninety days or longer if necessary.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
The Uniform Probate Code In Court
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The Uniform Probate Code In Court
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Tuesday, November 17, 2009
Cohen & Oalican LLP, discuss guardians and conservatorship in the UPC
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Health Care Proxy vs. Guardians
The UPC clarifies that if there is a valid health care proxy in place, decisions made by the health care agent take precedence over those of a guardian. In addition, a guardian cannot revoke a health care proxy without court authority. However, a conservator can revoke a durable power of attorney and a conservator’s decisions take precedence over the attorney in fact.
Monitoring
Responsibilities
Guardians must now maintain “sufficient contact with the person to know of his or her capacities, limitations, needs, opportunities and physical and mental health”. Arguably this was true under the old guardianship statue, having it stated clearly is an important change to the statute. Although guardians now only deal with the person, if there is no conservator in place a guardian take care of the person’s personal property and commence a conservatorship proceeding if necessary to protect their property.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Health Care Proxy vs. Guardians
The UPC clarifies that if there is a valid health care proxy in place, decisions made by the health care agent take precedence over those of a guardian. In addition, a guardian cannot revoke a health care proxy without court authority. However, a conservator can revoke a durable power of attorney and a conservator’s decisions take precedence over the attorney in fact.
Monitoring
Responsibilities
Guardians must now maintain “sufficient contact with the person to know of his or her capacities, limitations, needs, opportunities and physical and mental health”. Arguably this was true under the old guardianship statue, having it stated clearly is an important change to the statute. Although guardians now only deal with the person, if there is no conservator in place a guardian take care of the person’s personal property and commence a conservatorship proceeding if necessary to protect their property.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Thursday, November 12, 2009
Cohen & Oalican discuss changes for Admit to Nursing Home
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Commitment Proceedings
These cases will be heard in Superior Court. They will no longer be heard in Probate Court.
Powers
Admit to Nursing Home
There is the most important change regarding powers of guardians. Under the UPC, a guardian cannot admit an incapacitated person to a nursing home without a specific finding by the court that the admission is in the person’s best interest. A health care agent would still have the authority to admit to a nursing home.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Commitment Proceedings
These cases will be heard in Superior Court. They will no longer be heard in Probate Court.
Powers
Admit to Nursing Home
There is the most important change regarding powers of guardians. Under the UPC, a guardian cannot admit an incapacitated person to a nursing home without a specific finding by the court that the admission is in the person’s best interest. A health care agent would still have the authority to admit to a nursing home.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Monday, November 9, 2009
Uniform Probate Code relating to Guardians and Conservatorship
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Priority of Appointment
The new statute directs judges to consider prioritizing the order of who should be appointed guardian or conservator. First, anyone named as agent under a durable power of attorney. Second, the spouse of the incapacitated person or a person nominated by will of a deceased spouse (or other writing of the spouse notarized and witnessed). Third a parent of the person or a person nominated in the parents will or other writing. In the case of a conservator, the court shall also consider who the protected person would like to appoint (if they have sufficient capacity to make an “intelligent choice”). The court is directed to consider this order of priority but the judge is not required to follow it if the court believes someone else would be best suited to serve as guardian or conservator.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Priority of Appointment
The new statute directs judges to consider prioritizing the order of who should be appointed guardian or conservator. First, anyone named as agent under a durable power of attorney. Second, the spouse of the incapacitated person or a person nominated by will of a deceased spouse (or other writing of the spouse notarized and witnessed). Third a parent of the person or a person nominated in the parents will or other writing. In the case of a conservator, the court shall also consider who the protected person would like to appoint (if they have sufficient capacity to make an “intelligent choice”). The court is directed to consider this order of priority but the judge is not required to follow it if the court believes someone else would be best suited to serve as guardian or conservator.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Thursday, November 5, 2009
Cohen & Oalican discuss Temporary Guardians under Uniform Probate Code
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Court Procedures
Temporary Guardians
Previously, it was necessary to provide only three days of notice to the incapacitated person and their heirs-at-law. Under the new rules anyone seeking temporary appointment of a guardian or conservator must provide seven days of notice. As always, in a true emergency, the judge has discretion to waive the notice requirements and appoint a guardian or conservator immediately.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Court Procedures
Temporary Guardians
Previously, it was necessary to provide only three days of notice to the incapacitated person and their heirs-at-law. Under the new rules anyone seeking temporary appointment of a guardian or conservator must provide seven days of notice. As always, in a true emergency, the judge has discretion to waive the notice requirements and appoint a guardian or conservator immediately.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Wednesday, November 4, 2009
Cohen & Oalican, LLP, Elderlaw Attorneys answer - Who do you give notice when seeking guardianship or conservatorship
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Court Procedures
Notice
Whoever is seeking guardianship or conservatorship has to give notice of the proceeding to certain individuals. Previously, the alleged incapacitated person got notice, along with their spouse and children, or if none, parents, brothers and sisters. Under the UPC, the courts now require that additional people receive notice: anyone appointed under a power of attorney or health care proxy; anyone who has been living with the individual or anyone else named in the petition.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Court Procedures
Notice
Whoever is seeking guardianship or conservatorship has to give notice of the proceeding to certain individuals. Previously, the alleged incapacitated person got notice, along with their spouse and children, or if none, parents, brothers and sisters. Under the UPC, the courts now require that additional people receive notice: anyone appointed under a power of attorney or health care proxy; anyone who has been living with the individual or anyone else named in the petition.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Monday, November 2, 2009
Medicaid MassHealth and the Uniform Probate Code
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code
Court Procedures ( cont'd)
Where to File
The choice of which court to file a guardianship/conservatorship has been expanded to include in cases where a parent or spouse has nominated a guardian in their will, the county where the will was our could have been filed. This is in addition to the county where the individual lives. The courts are now directed to appoint an attorney if it determines of the person may be inadequately represented or if the person or someone on their behalf requests that an attorney be appointed.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code
Court Procedures ( cont'd)
Where to File
The choice of which court to file a guardianship/conservatorship has been expanded to include in cases where a parent or spouse has nominated a guardian in their will, the county where the will was our could have been filed. This is in addition to the county where the individual lives. The courts are now directed to appoint an attorney if it determines of the person may be inadequately represented or if the person or someone on their behalf requests that an attorney be appointed.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Saturday, October 31, 2009
Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston, discuss Right to Counsel
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
WELCOME TO THE UNIFORM PROBATE CODE Cont'd
Court Procedures
Right to Counsel
Under the new statute, the court, at its discretion, may appoint an attorney to represent the incapacitated person. The judge may appoint counsel at the request of the incapacitated person or someone else on his or her behalf if the judge believes that the person’s interests are not adequately represented. In the past, the court only appointed an attorney to represent the individual where a proposed guardian was seeking extraordinary medical authority (such as Rogers powers). Although this right to counsel provides additional protections to incapacitated persons, it may also delay the appointment of temporary guardians and add to the legal costs.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
WELCOME TO THE UNIFORM PROBATE CODE Cont'd
Court Procedures
Right to Counsel
Under the new statute, the court, at its discretion, may appoint an attorney to represent the incapacitated person. The judge may appoint counsel at the request of the incapacitated person or someone else on his or her behalf if the judge believes that the person’s interests are not adequately represented. In the past, the court only appointed an attorney to represent the individual where a proposed guardian was seeking extraordinary medical authority (such as Rogers powers). Although this right to counsel provides additional protections to incapacitated persons, it may also delay the appointment of temporary guardians and add to the legal costs.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Thursday, October 29, 2009
Discussion about Uniform Probate Code relating to Medicaid MassHealth
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Court Documents
Medical Certificate
Since July, 2008 (almost a year before the implementation of the UPC,) the probate courts have been using more detailed medical certificates. This is an important change, as the Medical certificate is often the only evidence presented regarding the individual’s impairments. In the past, doctors provided little helpful information with the old certificate form. The new form now requires that the physician state why a limited or full guardianship is appropriate. Among other information, doctors must now provide: clinical diagnosis; detailed description of cognitive and emotional functioning; detailing every day functioning and the level of care required.
It is important to note, that in most instances the doctor will need to complete two medical certificates. A first certificate must be filed in court along with the petition to start the legal proceeding. In addition, because the certificate has to be dated withing thirty days of the court hearing, and because its next to impossible to get into court within 30 days of filing the court documents, a second certificate will be necessary. ( The doctor will need to see the patient again and complete the form right before the court hearing.)
Finally, the certificate now assumes that the individual should attend the hearing and if they can’t the doctor has to explain why. Although the new medical certificate form will enable judges to better craft a limited appointment that specifically suits the individuals needs, this comes at a cost, literally and figuratively. Physicians have always been reluctant to spend much time with these forms. Now many physicians are charging large fees to complete medical certificates (and as described below often two certificates are required) and this places an additional burden on families.
Petitions
Under the new law, in many proceedings two petitions need to be filed. There is a separate petition seeking appointment of guardian to make medical decisions and another petition seeking appointment of a conservator of the property.
Now the patient and any interested person may now petition for guardianship. Previously, the patient was not allowed to petition for their own guardianship.
The new petitions for guardianship and conservatorship require those seeking appointment to provide additional information to the court. You must now make the court aware whether there is a representative payee, health care proxy or durable power of attorney in place (attaching copies of the documents if they exist). Also the court wants to know who has been taking care of the individual for the last sixty days.
Lastly, the new petitions include a request for the authority to admit to a nursing home. This is an important new requirement for guardians. However, if a health care proxy is in place they still have authority to admit to a nursing home.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Court Documents
Medical Certificate
Since July, 2008 (almost a year before the implementation of the UPC,) the probate courts have been using more detailed medical certificates. This is an important change, as the Medical certificate is often the only evidence presented regarding the individual’s impairments. In the past, doctors provided little helpful information with the old certificate form. The new form now requires that the physician state why a limited or full guardianship is appropriate. Among other information, doctors must now provide: clinical diagnosis; detailed description of cognitive and emotional functioning; detailing every day functioning and the level of care required.
It is important to note, that in most instances the doctor will need to complete two medical certificates. A first certificate must be filed in court along with the petition to start the legal proceeding. In addition, because the certificate has to be dated withing thirty days of the court hearing, and because its next to impossible to get into court within 30 days of filing the court documents, a second certificate will be necessary. ( The doctor will need to see the patient again and complete the form right before the court hearing.)
Finally, the certificate now assumes that the individual should attend the hearing and if they can’t the doctor has to explain why. Although the new medical certificate form will enable judges to better craft a limited appointment that specifically suits the individuals needs, this comes at a cost, literally and figuratively. Physicians have always been reluctant to spend much time with these forms. Now many physicians are charging large fees to complete medical certificates (and as described below often two certificates are required) and this places an additional burden on families.
Petitions
Under the new law, in many proceedings two petitions need to be filed. There is a separate petition seeking appointment of guardian to make medical decisions and another petition seeking appointment of a conservator of the property.
Now the patient and any interested person may now petition for guardianship. Previously, the patient was not allowed to petition for their own guardianship.
The new petitions for guardianship and conservatorship require those seeking appointment to provide additional information to the court. You must now make the court aware whether there is a representative payee, health care proxy or durable power of attorney in place (attaching copies of the documents if they exist). Also the court wants to know who has been taking care of the individual for the last sixty days.
Lastly, the new petitions include a request for the authority to admit to a nursing home. This is an important new requirement for guardians. However, if a health care proxy is in place they still have authority to admit to a nursing home.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Tuesday, October 27, 2009
Incompetent/Incapacitated/Protected Persons
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Terminology Continued
Incompetent/Incapacitated/Protected Person
Under the old statute, the court appointed a guardian or conservator if it found that the individual was “incompetent”. Now the court focuses on functional limitations instead. Specifically, the court looks to the person’s ability to process information and how that relates to their ability to make personal or financial decisions. A Guardian is appointed for an incapacitated person and a conservator is appointed for a protected person.
An Incapacitated person is a an individual who has as “clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for health, safety, self care, even with appropriate technological assistance.”
The term “ward” used to be used for anyone who had a guardian or conservator. Now ward is limited to a minor who has a guardian appointed.
The elimination of the term incompetent, hopefully will remove some of the stigma from this process.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
Terminology Continued
Incompetent/Incapacitated/Protected Person
Under the old statute, the court appointed a guardian or conservator if it found that the individual was “incompetent”. Now the court focuses on functional limitations instead. Specifically, the court looks to the person’s ability to process information and how that relates to their ability to make personal or financial decisions. A Guardian is appointed for an incapacitated person and a conservator is appointed for a protected person.
An Incapacitated person is a an individual who has as “clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for health, safety, self care, even with appropriate technological assistance.”
The term “ward” used to be used for anyone who had a guardian or conservator. Now ward is limited to a minor who has a guardian appointed.
The elimination of the term incompetent, hopefully will remove some of the stigma from this process.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
Sunday, October 25, 2009
Thursday, October 22, 2009
Cohen & Oalican simplify Uniform Probate Code in Part 2 of the series.
Terminology
The UPC has revised some of the outdated terminology used under our old guardianship statute. The new definitions provide more meaningful descriptions which are more consistent with the purpose of the statute. Below are some of the more important changes.
Guardians/Conservators
Under the old statute a guardian could be appointed over both the person and the property. Now under the UPC , guardians only have authority over the person and conservators only have authority of the estate. The UPC has eliminated guardians of property. Article V provides separate parallel sections describing the powers and responsibilities of both guardians and conservators.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
The UPC has revised some of the outdated terminology used under our old guardianship statute. The new definitions provide more meaningful descriptions which are more consistent with the purpose of the statute. Below are some of the more important changes.
Guardians/Conservators
Under the old statute a guardian could be appointed over both the person and the property. Now under the UPC , guardians only have authority over the person and conservators only have authority of the estate. The UPC has eliminated guardians of property. Article V provides separate parallel sections describing the powers and responsibilities of both guardians and conservators.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
Tuesday, October 20, 2009
Cohen & Oalican,LLP Boston, Andover, Raynham address the Uniform Probate Code
Cohen & Oalican simplify Uniform Probate Code in Part 1 of the series.
Pt. 1
WELCOME TO THE UNIFORM PROBATE CODE
Introduction
Article V of the Uniform Probate Code (the UPC) was put into effect on July 1, 2009. The purpose of the UPC is to try to improve legal proceedings for incapacitated persons. These improvements address outdated terminology, shortfalls in protecting the legal rights of incapacitated persons and lack of monitoring by the courts. The statute embraces the basic idea that there are many degrees of incapacity and that the courts should carefully tailor the appointment of a guardian or conservator to the specific needs of the individual. The UPC instructs the courts to favor limited guardianships whenever possible. Although the law attempts to provide better court oversight for guardians and conservators with a new monitoring system, it remains to be seen whether this will be more true in theory than in practice. Regardless, all of the new changes reflect additional sensitivity and respect for individuals who are unable to manage their personal and financial affairs.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
Pt. 1
WELCOME TO THE UNIFORM PROBATE CODE
Introduction
Article V of the Uniform Probate Code (the UPC) was put into effect on July 1, 2009. The purpose of the UPC is to try to improve legal proceedings for incapacitated persons. These improvements address outdated terminology, shortfalls in protecting the legal rights of incapacitated persons and lack of monitoring by the courts. The statute embraces the basic idea that there are many degrees of incapacity and that the courts should carefully tailor the appointment of a guardian or conservator to the specific needs of the individual. The UPC instructs the courts to favor limited guardianships whenever possible. Although the law attempts to provide better court oversight for guardians and conservators with a new monitoring system, it remains to be seen whether this will be more true in theory than in practice. Regardless, all of the new changes reflect additional sensitivity and respect for individuals who are unable to manage their personal and financial affairs.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
Monday, October 19, 2009
Medicaid MassHealth Legal Q&A Boston, Andover, Raynham
http://www.cohenoalican.com
Question and Answer, Medicaid and MassHealth, Boston Medicaid Attorney Cohen & Oalican, Boston Medicaid Attorney, Boston MassHealth
Monday, October 12, 2009
Protecting your Primary Residence with Changes to MassHealth (Medicaid) laws
Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence. This article covers the changes in Medicaid annuities.
The Primary Residence
In the past, Medicaid did not count the value of an applicant’s home in determining eligibility. This meant that an individual did not need to sell his or her home, regardless of value, in order to qualify for Medicaid. Under the new rules, however, a house valued at over $500,000 is now counted in determining Medicaid eligibility. (Massachusetts has the option of increasing this threshold to $750,000.) Under the new rules, a single person whose home is worth more than $500,000 cannot qualify for Medicaid unless he or she agrees to sell the house. However, even under the new rules, a house continues to be non-countable if a spouse, disabled or blind child, or child under the age of 21 lives there.
Conclusion
As you can see, these changes dramatically alter the Medicaid program. Nursing homes will have to work closely with residents and their families to ensure that residents are able to smoothly transition from paying privately to receiving Medical Assistance from MassHealth. As always, our office is available to answer your questions or to provide any assistance you may need.
If you would like to review the full text of the law, go to http://thomas.loc.gov/, and enter "S. 1932" in the “search bill” text box.
This is the final article in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
The Primary Residence
In the past, Medicaid did not count the value of an applicant’s home in determining eligibility. This meant that an individual did not need to sell his or her home, regardless of value, in order to qualify for Medicaid. Under the new rules, however, a house valued at over $500,000 is now counted in determining Medicaid eligibility. (Massachusetts has the option of increasing this threshold to $750,000.) Under the new rules, a single person whose home is worth more than $500,000 cannot qualify for Medicaid unless he or she agrees to sell the house. However, even under the new rules, a house continues to be non-countable if a spouse, disabled or blind child, or child under the age of 21 lives there.
Conclusion
As you can see, these changes dramatically alter the Medicaid program. Nursing homes will have to work closely with residents and their families to ensure that residents are able to smoothly transition from paying privately to receiving Medical Assistance from MassHealth. As always, our office is available to answer your questions or to provide any assistance you may need.
If you would like to review the full text of the law, go to http://thomas.loc.gov/, and enter "S. 1932" in the “search bill” text box.
This is the final article in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Thursday, October 8, 2009
Changes to MassHealth (Medicaid) laws...
Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence. This article covers the changes in Medicaid annuities.
Annuities
Congress has also changed the annuity regulations. Medicaid allows a spouse whose assets exceed the Medicaid limit to protect those “excess assets” by purchasing an irrevocable, immediate annuity. The old Medicaid rules allowed the spouse to name anyone he or she wanted to receive the remaining annuity payments if the spouse died during the annuity term. Under the new rules, Medicaid requires that annuities name the Commonwealth of Massachusetts as the beneficiary. Although the revised statute is somewhat ambiguous, it appears that the Commonwealth can only seek reimbursement from the annuity for benefits provided to the community spouse. The new rule does not apply to annuities purchased prior to February 1, 2006. Buying annuities remains an effective strategy to protect assets for the spouse of a nursing home resident; however, the new rules have added a risk to this strategy.
This is third in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Annuities
Congress has also changed the annuity regulations. Medicaid allows a spouse whose assets exceed the Medicaid limit to protect those “excess assets” by purchasing an irrevocable, immediate annuity. The old Medicaid rules allowed the spouse to name anyone he or she wanted to receive the remaining annuity payments if the spouse died during the annuity term. Under the new rules, Medicaid requires that annuities name the Commonwealth of Massachusetts as the beneficiary. Although the revised statute is somewhat ambiguous, it appears that the Commonwealth can only seek reimbursement from the annuity for benefits provided to the community spouse. The new rule does not apply to annuities purchased prior to February 1, 2006. Buying annuities remains an effective strategy to protect assets for the spouse of a nursing home resident; however, the new rules have added a risk to this strategy.
This is third in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Tuesday, October 6, 2009
Boston Medicaid (MassHealth) Attorney: Medicaid Laws change due to Deficit Reduction Act : Transfer of Assets cont'd
Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence.
Transfer of Assets (cont'd)
More significantly, however, the new law also changes the date on which the penalty period begins. Under the old rules, the penalty period started when the transfer was made. The new law shifts the start-date of the penalty period to the date when the person is in a nursing home and his or her funds have run out. The new law will not apply to transfers made prior to February 8, 2006. However, Congress has allowed the states to implement the statute at a later date if they choose to do so, so the effective date in Massachusetts may fall after February 8.
The easiest way to explain the change is by way of an example. Let’s assume Mrs. Smith transfers $20,000 to her grandson on March 15, 2006. On April 15, 2007, Mrs. Smith suffers a stroke and is admitted to a skilled nursing facility. Assume she spends down her assets below $2,000 as of August 2007. Under the old transfer rules, the March 15, 2006, transfer would have made Mrs. Smith ineligible for Medicaid benefits for almost three months, starting March 1, 2006, and ending at the end of May 2006. Thus under the old rules Mrs. Smith would have been eligible in August 2007. Under the new rules, however, the transfer penalty would not start until August 1, 2007 and would end in November. The question then arises: How will Mrs. Smith pay the facility if the transferred funds are gone and she is not eligible for Medicaid?
This is second in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Transfer of Assets (cont'd)
More significantly, however, the new law also changes the date on which the penalty period begins. Under the old rules, the penalty period started when the transfer was made. The new law shifts the start-date of the penalty period to the date when the person is in a nursing home and his or her funds have run out. The new law will not apply to transfers made prior to February 8, 2006. However, Congress has allowed the states to implement the statute at a later date if they choose to do so, so the effective date in Massachusetts may fall after February 8.
The easiest way to explain the change is by way of an example. Let’s assume Mrs. Smith transfers $20,000 to her grandson on March 15, 2006. On April 15, 2007, Mrs. Smith suffers a stroke and is admitted to a skilled nursing facility. Assume she spends down her assets below $2,000 as of August 2007. Under the old transfer rules, the March 15, 2006, transfer would have made Mrs. Smith ineligible for Medicaid benefits for almost three months, starting March 1, 2006, and ending at the end of May 2006. Thus under the old rules Mrs. Smith would have been eligible in August 2007. Under the new rules, however, the transfer penalty would not start until August 1, 2007 and would end in November. The question then arises: How will Mrs. Smith pay the facility if the transferred funds are gone and she is not eligible for Medicaid?
This is second in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Friday, October 2, 2009
Boston Medicaid (MassHealth) Attorney: New Series: Medicaid Laws change due to Deficit Reduction Act
Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence.
Transfer of Assets
As you may recall, Medicaid, a.k.a "MassHealth," penalizes applicants who transfer assets by imposing one month of ineligibility for nursing-home benefits for every $6,960 (as of 2005) given away. But by changing two important aspects of the Medicaid rules, Congress has imposed much stricter penalties than ever before.
Under the old rules, Medicaid would review three years (or in the case of trusts five years) of financial statements in order to identify any disqualifying transfers. This is known as the “look-back period.” The new law extends the look-back period to five years for all transfers.
This is first in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Transfer of Assets
As you may recall, Medicaid, a.k.a "MassHealth," penalizes applicants who transfer assets by imposing one month of ineligibility for nursing-home benefits for every $6,960 (as of 2005) given away. But by changing two important aspects of the Medicaid rules, Congress has imposed much stricter penalties than ever before.
Under the old rules, Medicaid would review three years (or in the case of trusts five years) of financial statements in order to identify any disqualifying transfers. This is known as the “look-back period.” The new law extends the look-back period to five years for all transfers.
This is first in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Wednesday, September 30, 2009
Boston Medicaid Attorney "Answers Can I give away my assets?"
Many people want to know if they can give away their assets to protect them from Medicaid. The answer of course is it depends. The bottom line is that most gifts (even those under the IRS permitted $13,000 limit) will disqualify an applicant and their spouse for MassHealth benefits. However, there are many exceptions where MassHealth allows you to make gifts. For example you can transfer assets to a disabled child without any penalty. In addition, you can give your house to a so called caretaker child who lives with you and helps take care of you.
If you are thinking of making gifts, its best to first consult with an attorney at Cohen & Oalican.
This is fifth in a series of questions and answers regarding your legal rights dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
If you are thinking of making gifts, its best to first consult with an attorney at Cohen & Oalican.
This is fifth in a series of questions and answers regarding your legal rights dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Thursday, September 24, 2009
Medicaid (MassHealth) Boston Attorney answers "If I apply for Medicaid is my house vulnerable?"
MassHealth regulations describe a home as a “non-countable” asset. This is a confusing label. Although MassHealth does not count your home in determining eligibility, this does not mean that the house is protected: far from it. MassHealth will not force you to sell your house to obtain eligibility. However, if the house is in your sole name (part of your so called “probate estate) at your death, the State will have a claim against the house and will either use a Medicaid lien or its powers of estate recovery to seek reimbursement against the house. For this reason, its important to meet with a Cohen & Oalican asset protection attorney to protect your home before you apply.
This is fourth in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
This is fourth in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Monday, September 21, 2009
Boston Elderlaw Attorneys answer: What happens if my MassHealth (Medicaid) application is denied?
MassHealth looks for any reason they can to deny an application. Typical reasons for denials include: missing bank statement, missed deadlines, unexplained deposits or withdrawals or excess assets. At Cohen & Oalican we help clients with every step of the application process. We walk you through the process so that there are no surprises. We anticipate Medicaid’s questions and give them the information they need to accept the application as quickly as possible. Cohen & Oalican attorneys can know how to best describe your family’s assets to offer the maximum protection. If your application is denied we can quickly file an appeal to determine what your legal rights are and how best to move forward and get your application approved.
This is third in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for your trust in our Elder Law legal practice, Cohen & Oalican, LLP
This is third in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Thursday, September 17, 2009
Boston MassHealth Lawyer Answers "How do I apply for Medicaid (also known as MassHealth)?
The Medicaid program, which is called MassHealth in Massachusetts is a confusing bureaucracy. It takes an expert to guide you through this maze. MassHealth workers ask for financial statements going back as far as five years looking to see if the applicant or their spouse has made any disqualifying gifts. It is critical to work with an expert in filing the MassHealth application. If you file too late you may lose coverage you would otherwise be entitled to. If you file to early, you may make yourself ineligible for months if not years.
The attorneys at Cohen & Oalican can help you through the process.
This is second in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for your trust in our Elder Law legal practice, Cohen & Oalican, LLP
The attorneys at Cohen & Oalican can help you through the process.
This is second in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for your trust in our Elder Law legal practice, Cohen & Oalican, LLP
Tuesday, September 15, 2009
Boston Medicaid Attorney Answers How do I find an elderlaw attorney?
If you or someone in your family are facing long term care issues. Its critical to get good advice from an attorney who specializes in these issues. It does not make sense to see a cardiologist if you break your foot. The same holds true for legal advice. If someone in your family requires nursing home care you need to find an attorney who focuses on asset protection and Medicaid planning. The attorneys at Cohen & Oalican are experts in this area of the law.
This is first in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for your trust in our Elder Law legal practice, Cohen & Oalican, LLP.
This is first in a series of questions and answers regarding your legal rights dealing with MassHealth, Medicaid. Thank you for your trust in our Elder Law legal practice, Cohen & Oalican, LLP.
Wednesday, September 9, 2009
More Links to Cohen & Oalican
We are still uncovering links to our site.
We are still looking.
If you know someone linking to our site, please drop us a note so that we can show our appreciation.
- ERIC R. OALICAN is a partner in the Boston elder law firm of Cohen Oalican, LLP, where he specializes in representing the legal needs of the elderly. . .
- Directions to our Firm
- A professional endorsement
- Eric R. Oalican, Esq., Co-chair, Cohen & Oalican LLP, Boston;Elder Law: MCLE BasicsPlus!®
- Basic concepts of estate and long-term care planning
- We have two types of clients," said Eric Oalican, an elder-law attorney in Boston. "Advance-planning clients, who are in OK health either at home or in an .. . .
- Boston Tax Institute Faculty
- Medicaid Update Speaker: Eric R. Oalican
- Preserving & transferring your client's principal residence / chairs, Eric R. Oalican
- Eric R. Oalican, Esq., program chair. Cohen & Oalican LLP, Boston. Leslie S. Madge, Esq. ... Eric R. Oalican. LONG-TERM. CARE ASSET. PROTECTION. PLANNING
- Eric R. Oalican,. Esq., Cochair, Cohen & Oalican LLP,. Boston;Elder Law BOSTON, Thursday, September 10 & Friday, September 11, 2009 - Basic concepts of estate and long-term care planning MCLE BasicsPlus
- Eric Oalican
- 1-day seminar (8 credits) led by Steven Cohen, Esq., and Eric Oalican, Esq. Topics include the essentials of estate planning for accountants and their. . .
- Eric Oalican. 617-350-5600. View Profile. Elder Law, Estate Planning.
We are still looking.
If you know someone linking to our site, please drop us a note so that we can show our appreciation.
Tuesday, September 8, 2009
Elder Law - Cohen & Oalican in the news
Its always interesting to see who is talking about you or linking to you on the web.
This is a short not of thanks to all of those that are kind enough to mention us on their websites.
More to come, we keep on digging. It is rewarding, in retrospect, to see some of the accomplishments we have had in prestigious organizations like the Boston Bar and to see our participation in this worthy organization recognized on the web.
This is a short not of thanks to all of those that are kind enough to mention us on their websites.
- Eric Oalican Profile
- Andover Cohen & Oalican
- Boston Cohen & Oalican
- Raynham Cohen & Oalican
- Our Elder Law Blog
- Steven Cohen Linked in
- Eric Oalican Linked In
- We Were Stumbled!
- Massachusetts Lawyers Weekly
- Boston Bar - Trusts and Estates Winter 2009
- Boston Bar - Elder Law & Disability Planning Committee
- Boston Bar - Trusts and Estates Winter 2008
- Boston Bar - Steven M. Cohen, Cohen and Oalican, will discuss the provisions of the Deficit Reduction Act of 2005. Specifically their impact on elder law practice. . .
- Boston Bar - Elder Law & Disability Planning Committee Open Forum
- Boston Bar - Trusts & Estates Fall 2008
- Boston Bar - Elder Law & Disability Planning Committee
- Boston Bar - THE NEW MASSACHUSETTS UNIFORM PROBATE CODE Panelist
- Boston Bar - The New Massachusetts Uniform Probate Code
More to come, we keep on digging. It is rewarding, in retrospect, to see some of the accomplishments we have had in prestigious organizations like the Boston Bar and to see our participation in this worthy organization recognized on the web.
Thursday, August 27, 2009
What are the alternatives to guardianship or conservatorship?
There are several less restrictive alternatives to guardianship or conservatorship. These include the durable powers of attorney, representative payees, trusts and health care proxies. Each of these options may avoid or delay the need for a guardian. These documents need to be executed before the individual is incapable of doing so due to mental impairment.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
Tuesday, August 25, 2009
What are the responsibilities of the guardian or conservator?
In addition to those concerning authority to consent to medical treatment, the guardian must report back to the court regarding the ward’s care and living situation. The conservator must account carefully for all of the ward's income and any expenditures made on this or her behalf. This is accomplished by the conservator filing an inventory listing the ward's assets with the court as of the date of appointment and by filing annual accounts with the court detailing all the income and expenses the ward has. A final account must be filed when the conservatorship is terminated. The guardian and conservator are liable for their acts until the court allows (approves) the account.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.
Friday, August 21, 2009
What authority does the guardian or conservator have?
Unless limited by the court, the guardian has total control over the personal decisions of the ward and the conservator has authority of all financial decisions. This includes deciding where the ward will live, determining how the ward's funds will be spent and making routine medical decisions for the ward. For medical decisions involving extraordinary medical care, nursing home admission, the administration of anti-psychotic drugs, commitment to a mental health facility or the sale of the ward's real estate, the guardian has to seek the approval of the court in a separate proceeding. The conservator must seek court authority to make any gifts or to implement an estate plan for the ward.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Tuesday, August 18, 2009
How long does an appointment as Guardian or Conservator last?
A temporary appointment can last 90 days. A permanent appointment may last until the death of the ward or the guardian, until the ward is able to establish that she is competent, or until the guardian or conservator resigns or is removed by the Probate Court.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyers
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyers
Monday, August 17, 2009
How can I become a guardian or conservator?
Assuming that a physician is prepared to attest to the proposed ward's incompetence, a petition must be filed with the Probate Court requesting the appointment of a guardian. Two petitioners must sign the petition and the proposed guardian must file a bond with the court. Then, the court directs which individuals must receive notice of the legal proceedings. Notice must be given to the proposed ward, the heirs of the ward, the person the ward lives with, and their agents under a durable power of attorney or health care proxy. The court sets a date by which anyone wishing to object may do so, including the proposed ward. Then a hearing is held where a judge decides whether a guardian or conservator should be appointed. The court can either name one individual to serve as both guardian and conservator or different people to serve in each role.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyers
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyers
Sunday, August 9, 2009
When is a guardianship or conservatorship appropriate?
Guardianship or conservatorship is appropriate when impaired judgment or capacity poses a major threat to a person's welfare. A medical evaluation by a licensed physician is necessary to establish the proposed ward's condition. However, only a court can determine the need for a guardian or conservator.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston.
This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston.
Tuesday, August 4, 2009
New Series Guardianship and Conservatorships
Welcome everyone that has been following our mini series of articles on issues on elder law for our clients in the Boston and Greater Boston Area.
We are Cohen and Oalican, LLP, Elder Law Attorneys, specializing in protecting the legal rights and financial concerns of our clients as they age and prepare for retirement and succession.
Enjoy this next series on the topic of Guardianship and Conservatorships.
This is the first in a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston.
We are Cohen and Oalican, LLP, Elder Law Attorneys, specializing in protecting the legal rights and financial concerns of our clients as they age and prepare for retirement and succession.
Enjoy this next series on the topic of Guardianship and Conservatorships.
What are Guardianships and Conservatorships?
Guardianship and conservatorship are legal relationships whereby the Probate Court gives one person (the guardian or conservator) the power to make decisions for another (the ward). As of July 1, 2009, the probate courts have begun distinguishing between guardians and conservators. Now, guardians only have authority over personal and medical decisions and conservators only have authority over financial decision. A guardian or conservator may be appointed when a Probate Court determines that an individual is incapacitated to such degree that they are unable to care for herself or her assets.This is the first in a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston.
Friday, July 31, 2009
Irrevocable Trust For Medicaid Eligibility - Other Implications - Wrap Up
Placing your home into an irrevocable trust may cause you to lose any tax abatements you may currently receive. Additionally, if you have recorded a homestead on your primary residence and then subsequently transfer your home into an irrevocable trust, you may lose the protection afforded by the homestead. Also, if you currently have a mortgage on your property, it may technically become due upon transferring the property into an irrevocable trust. Finally, we recommend that you inform your insurance company that your trust is the owner of your home. Your insurance company should change the home owner’s policy to reflect that an irrevocable trust is the new owner.
As always please contact us if you have any questions regarding your irrevocable trust or future Masshealth issues.
As always please contact us if you have any questions regarding your irrevocable trust or future Masshealth issues.
Thursday, July 30, 2009
Probate issues with Irrevocable Trust
Any property held in an irrevocable trust will avoid the probate process and pass directly to the beneficiaries named in your trust. Should you ever wish to change the beneficiaries of the irrevocable trust, please contact our office so we can assist you further.
Contact your Elder Law Attorney in Boston, Cohen & Oalican, LLP
Contact your Elder Law Attorney in Boston, Cohen & Oalican, LLP
Saturday, July 25, 2009
Tax consequences of an Irrevocable Trust
An irrevocable trust is written so that if your home or other appreciated assets are sold after your death, your heirs will receive what is called a “step-up” in the tax basis. This means that the ultimate beneficiaries of the irrevocable trust will pay little or no capital gains taxes if they decide to sell property after your death. If your primary residence is owned by an irrevocable trust and it is sold while you are alive, you will be able to utilize your $250,000, or $500,000 in the case of couples, capital gains exclusion.
An irrevocable trust property will be included in your taxable estate. A Massachusetts estate tax will only be owed upon the surviving spouse’s death if your total estate (including the irrevocable trust's assets) exceed $1 million.
If you have only placed real estate into your irrevocable trust, you can continue to file your annual income taxes as you have in the past. Accordingly, you will not need a new tax identification number for the irrevocable trust. Further, you will still be able to claim any deductions related to your home on your taxes.
If you have placed liquid assets into your trust, you will need to apply for a new tax identification number (EIN) and file an annual trust tax return. An irrevocable trust is drafted so that all the income earned on the irrevocable trust's assets will be taxable to you. You should contact your accountant who will need to complete the necessary tax forms for the irrevocable trust.
Pulbished by Cohen & Oalican, LLC Special Needs Trusts Attorneys in Boston
An irrevocable trust property will be included in your taxable estate. A Massachusetts estate tax will only be owed upon the surviving spouse’s death if your total estate (including the irrevocable trust's assets) exceed $1 million.
If you have only placed real estate into your irrevocable trust, you can continue to file your annual income taxes as you have in the past. Accordingly, you will not need a new tax identification number for the irrevocable trust. Further, you will still be able to claim any deductions related to your home on your taxes.
If you have placed liquid assets into your trust, you will need to apply for a new tax identification number (EIN) and file an annual trust tax return. An irrevocable trust is drafted so that all the income earned on the irrevocable trust's assets will be taxable to you. You should contact your accountant who will need to complete the necessary tax forms for the irrevocable trust.
Pulbished by Cohen & Oalican, LLC Special Needs Trusts Attorneys in Boston
Monday, July 20, 2009
Irrevocable Trust For Medicaid Eligibility Boston Medicaid Planning
Check out this SlideShare Presentation:
Protecting Your Assets From The Cost Of Nursing Home Care Part 2
Medicaid Eligibility
Published by Cohen & Oalican, LLC Elder Law Attorneys in Boston
Tuesday, July 14, 2009
Protecting Your Assets From The Cost Of Nursing Home Care
Your irrevocable trust will protect the trust assets should you or your spouse ever apply for MassHealth nursing home benefits. MassHealth will only consider the trust assets to be “non-countable” if your access and rights to the trust property are limited. Please review this form carefully so that you and the trustee understand how the trust will work and your obligations and rights to the trust property.
Irrevocable
The enclosed trust is irrevocable, meaning that you cannot change it. You have no right to demand that the trust assets be returned to you. The trust does, however, contain language which allows you to appoint a new trustee. The trust also gives you a power of appointment. This means that you can change the interests of the beneficiaries upon your death by changing your will. Once you place an asset into your irrevocable trust you no longer own it, the trust does. However, you can still benefit from the trust asset in many ways.
Principal and Income
By the terms of the trust, none of the trust principal can be paid to you under any circumstances. This is critical in order to make sure that the trust assets are protected from MassHealth. Think of your trust like a locked safe. Although assets placed into the trust must remain in the trust, they can be sold. For example, if real estate is placed in the trust and it is subsequently sold, the proceeds from the sale must remain in the trust. Likewise, the trustee could be use the proceeds to purchase a new home for you. However the new home would be titled in the name of the trust.
You also have a continuing right to live in real estate owned by the trust. Additionally, the interest and dividends earned on the trust property or rental income can be paid out to you. Because you no longer own the property held in the trust, you will most likely not be able to mortgage or take out an equity loan on the property.
An attorney well versed in Irrevocable Trust Law in Boston is invaluable when making these decisions.
Irrevocable
The enclosed trust is irrevocable, meaning that you cannot change it. You have no right to demand that the trust assets be returned to you. The trust does, however, contain language which allows you to appoint a new trustee. The trust also gives you a power of appointment. This means that you can change the interests of the beneficiaries upon your death by changing your will. Once you place an asset into your irrevocable trust you no longer own it, the trust does. However, you can still benefit from the trust asset in many ways.
Principal and Income
By the terms of the trust, none of the trust principal can be paid to you under any circumstances. This is critical in order to make sure that the trust assets are protected from MassHealth. Think of your trust like a locked safe. Although assets placed into the trust must remain in the trust, they can be sold. For example, if real estate is placed in the trust and it is subsequently sold, the proceeds from the sale must remain in the trust. Likewise, the trustee could be use the proceeds to purchase a new home for you. However the new home would be titled in the name of the trust.
You also have a continuing right to live in real estate owned by the trust. Additionally, the interest and dividends earned on the trust property or rental income can be paid out to you. Because you no longer own the property held in the trust, you will most likely not be able to mortgage or take out an equity loan on the property.
An attorney well versed in Irrevocable Trust Law in Boston is invaluable when making these decisions.
Wednesday, July 8, 2009
Medicaid Planning - Boston Attorneys - Conclusion
The possibility for a spouse or parent to need nursing home care is the greatest financial risk facing most seniors. Given Massachusetts' tightening budget, it has become even more difficult to obtain Medicaid eligibility and protect your assets. For your own peace of mind, it’s more important than ever to hire an experienced Elder Law Attorney to create a comprehensive Asset Protection Plan to preserve all that you have worked for.
Sunday, July 5, 2009
Medicaid Law - Boston Attorney Protecting your spouse and Assets
Protecting Your Spouse/Assets
Medicaid law provides for special protections for the spouse of a nursing home resident, known in the law as the "community" spouse. The spouse of a Medicaid applicant is entitled to keep a portion of the couple’s assets. The community spouse is entitled to keep a maximum of $109,560 (2009 figures). This assessment is not affected whether the assets are jointly held by the couple or they are all in the name of the nursing home spouse. For example, if a couple owns $75,000 in countable assets on the date the applicant enters a hospital, the community spouse will be entitled to a resource allowance of $75,000. If they have $250,000, the community spouse can keep the maximum of $109,560.
As always, if you are in our area, engaging Boston attorney specializing in Medicaid Law and Elder Law is always in your best interests a you plan for your future reliance on Medicaid, and work to protect your assets from a Medicaid Lien.
Medicaid law provides for special protections for the spouse of a nursing home resident, known in the law as the "community" spouse. The spouse of a Medicaid applicant is entitled to keep a portion of the couple’s assets. The community spouse is entitled to keep a maximum of $109,560 (2009 figures). This assessment is not affected whether the assets are jointly held by the couple or they are all in the name of the nursing home spouse. For example, if a couple owns $75,000 in countable assets on the date the applicant enters a hospital, the community spouse will be entitled to a resource allowance of $75,000. If they have $250,000, the community spouse can keep the maximum of $109,560.
As always, if you are in our area, engaging Boston attorney specializing in Medicaid Law and Elder Law is always in your best interests a you plan for your future reliance on Medicaid, and work to protect your assets from a Medicaid Lien.
Friday, June 26, 2009
Protection from Medicaid - The Transfer Penalty and the Look-Back
If you give away your assets it will make you and your spouse ineligible for Medicaid benefits for up to five years. When you apply for benefits, Medicaid reviews five years of bank statements in order to identify any disqualifying transfers. This is known as the “look-back period.” Any transfers that happened before the five year period are protected and do not have to be reported to Medicaid. However, if you apply for benefits during the look-back period, Medicaid imposes one month of ineligibility for approximately every $8,000 you give away. In addition, the clock does not start “ticking” on the ineligibility period until you are in a nursing facility and have spent down your assets. It is impoerative that you involve an attorney familiar wtih Medicaid planning to protect your assets.
The easiest way to explain the transfer rules is by way of an example. Let’s assume Mrs. Smith transfers $24,000 to her grandson on March 15, 2008. On April 15, 2009, Mrs. Smith suffers a stroke and is admitted to a nursing home. Assume she spends down her assets below $2,000 as of August 2009. Because she would be applying during the look-back period, Medicaid would impose three months of ineligibility ($24,000 ÷ $8,000 = 3 months). The transfer penalty would not start until August 1, 2009 and would end in November 2009.
Thursday, June 25, 2009
Medicaid Protecting Your Home
Many fear the Medicaid Lien as they get older and face mounting medical bills.
Homes with equity of less than $750,000 are not considered a noncountable asset. However this does not mean that the house is protected. Without proper planning and legal advice for Medicaide Patients, at death the State will have a lien against your house and at death Medicaid will seek reimbursement for benefits provided. With proper legal planning you can avoid a Medicaid lien and protect your home saving hundreds of thousands of dollars.
Many people think the best way to protect their home is to give it outright to their children.
Although this may sound like the simplest solution -- it may be the worst choice. Transferring a home outright to children can result in large capital gains taxes. Secondly, things can happen to children that can place the house at risk. What happens if a child gets divorced, is sued or has creditor problems? Seniors have been literally forced out of their own home as a result of ‘gifting’ their house to their children.
One strategy our office uses to protect homes from the Medicaid lien is an irrevocable trust. An irrevocable trust can protect your home from a Medicaid lien and avoid the risks of outright gifts.
Sunday, June 21, 2009
The Asset Rules - Medicaid Eligibility
The first basic rule of nursing home Medicaid eligibility is that an applicant, whether single or married, may have no more than $2,000 in "countable" assets in his or her name. "Countable" assets generally include everything you own, except for the applicant's home (if it is located in Massachusetts and it has equity less than $750,000). Everything else,(second homes, retirement savings, life insurance) is counted and may have to be spent down before you can obtain eligibility.
Saturday, June 20, 2009
PROTECTING YOUR ASSETS FROM THE COST OF NURSING HOME CARE
Nobody wants to think of the possibility of entering a nursing home. But the truth is, if you ignore this issue you are putting your spouse’s financial security, your life savings, your home and your children’s inheritance at risk. Nursing homes in Massachusetts cost approximately $10,000 a month. Most people don’t realize that traditional health insurance policies and Medicare provide little or no long term care coverage, but Medicaid coverage is very different. With proper planning and the right attorneys specializing in Elder Law, most married middle-class seniors, who have accumulated savings and a house, could be eligible for Medicaid to help pay some or all of their long term care costs. Unfortunately many seniors, who pay privately for nursing home care, spend their life savings until they have nothing left – and only then do they believe they are eligible for Medicaid (the program is called MassHealth in Massachusetts).
The Medicaid rules are complicated and include many traps for the unwary. An experienced elder law attorney can help you navigate through the Medicaid maze protecting your family’s savings and home.
More on this topic soon.......
The Medicaid rules are complicated and include many traps for the unwary. An experienced elder law attorney can help you navigate through the Medicaid maze protecting your family’s savings and home.
More on this topic soon.......
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