Boston Elder Law Attorneys

Nursing Home Rights and Eligibilty

2012-01-20T13:40:00.000-08:00

Nursing homes can be very costly. Medicaid is just about the only insurance that will cover nursing home expenses, although some private insurances will pay a certain amount. Nursing Home eligibility rules are not so easy to understand. There are rules that can help protect your home and protect your spouse when using Medicaid.

Nursing Home Resident's Rights; Elder Law

The rights of nursing home's residents are no different than the rights of any citizen. Unfortunately, nursing home residents aren't always treated as they should be. In 1987 laws were passed for elder law by Congress that help protect you or your spouse while in a nursing home.
Here are just a few laws that were passed:

Resident has the right to see all of their records
Residents must be informed of services available and how much they will cost
Residents can share a room with their spouse
Residents can get up and go to bed whenever they want

Disputes in the nursing home

There are certain steps that can be taken if needed when you feel you or your spouse or loved one has been mistreated.

Talk to the nursing home staff
Talk to nursing home supervisor/administration
Request a meeting with nursing staff
Talk with the ombudsperson that is assigned

If all else fails contact Elder Law Attorney's Cohen and Oalican, LLC.
Attorneys Cohen & Oalican specialize in Elder Law; where protecting your assets and your dignity is their core mission.

Supplemental Needs Trusts

2012-01-12T10:04:00.000-08:00

Supplemental needs trusts are created for disabled children to provide luxuries that aren't available through public assistance. This is also known as a special needs trust. These trusts are setup so that beneficiaries are allowed to receive gifts or settlements without losing their eligibility for public benefits.

Public Benefits Restrictions for Supplemental Needs Trusts; Elder Law

Supplemental needs trusts need to comply with certain rules/restrictions so that public benefits will not be jeopardized. There are two ways to go about this:

A "Payback" program can be setup where the state or Medicaid will be paid back at the time of the beneficiaries death.
A "Pooled Trust" can be setup (a non-profit agency manages resources "pooled" between many disabled beneficiaries.)

Supplemental Needs Trusts Restrictions on Income Paid to Beneficiary; Cohen and Oalican, LLC

There are restrictions on how funds in a supplemental needs trust can be spent. A beneficiary can lose one dollar of SSI benefits for every one dollar paid to them. Attorneys Cohen and Oalican can draft a trust to limit a trustee's discretion. They can also setup the trust to NOT limit their discretion, but properly counsel the trustee on how their money should be used.

Attorneys Cohen & Oalican specialize in Elder Law; where protecting your assets and your dignity is their core mission.

Medicaid Planning 101; protecting your home

2011-12-21T18:03:00.000-08:00

If you receive Medicaid assistance, once you die the state has to try to recoup whatever moneys you have received for your care. This is also known as “Estate Recovery.” The first place they will look will be your home. There are ways to protect your home from recovery by the state by transferring assets.

Trusts; Cohen & Oalican, Boston, Raynham and Andover Massachusetts

Transferring your home to an irrevocable trust is one way to protect your home. If your house is sold the money must stay in the trust. If done right, $250,000 in taxable gain can be excluded for the settlor. Be careful though; once your house is in the irrevocable trust you can not take it out.

Protect your home with Life Estates; Elder Law

The easiest way to protect your home from estate recovery is by setting up a life estate. A life estate is when 2 or more people own a property. You will have primary ownership of the home for life. The second owner has ownership interest in the home but can not solely take the home until you die. At death, the home will be directly passed to that person that has interest in the home. Once the house is passed on to the other interested party, the state can not recover the home to repay Medicaid expenses.

Attorneys Cohen & Oalican specialize in Elder Law; where protecting your assets and your dignity is their core mission.

Medicaid Planning 101: Trusts

2011-12-20T13:23:00.000-08:00

Revocable trusts are considered as assets that cannot be transferred without being counted towards your Medicaid eligibility. Irrevocable trusts are trusts that cannot be changed. Therefore you will not be penalized if you were to include irrevocable trusts into your Medicaid planning.

Testamentary Trusts; Cohen & Oalican LLP, Boston, Raynham and Andover Massachusetts

Testamentary trusts are a great way for community spouses to leave assets to their surviving spouse that is in a nursing home. The assets can be used for estate planning for certain things that are not covered by Medicaid, including specialists, therapy, legal fees or transfers to a different nursing home.

Income-only Trusts; Elder Law

Income-only trusts are used for just that; income. This trust is made so it will pay an income to you for the rest of your life. When you die the rest of your assets will be transferred to your beneficiaries. These funds are protected and are not counted as assets. If you do end up going to a nursing home the income will go to the nursing home to pay for your stay.

Attorneys Cohen & Oalican specialize in Elder Law; where protecting your assets and your dignity is their core mission.

Medicaid Planning 101: Transferring Assets

2011-12-19T17:13:00.000-08:00

Last week in part one of Medicaid Planning 101, we briefly explained that it is possible to transfer assets in advance so that you could protect them. This article will go more in depth of how this can be done.

Remember: you should always talk with an Elder Law Attorney before you make any estate planning decisions.

Medicaid Eligibility; Elder Law Attorneys Cohen & Oalican, Boston, Raynham and Andover Massachusetts

There is a 60 month look back period if you have just transferred assets. The length of the penalty depends on how much you actually transferred. The penalty is: assets you have transferred divided by the average cost of a nursing home in your state. This penalty does not start until you actually move into the nursing home.

Transfers that are permitted by Medicaid

Transfers to your spouse
If you have a child that is under the age of 21
A sibling that has part ownership of your home
If you had a child that lived with you for at least 2 years who cared for you
A disabled child

While most asset transfers will be penalized, any of the above transfers are allowed and cannot be penalized.

Attorneys Cohen & Oalican specialize in Elder Law; where protecting your assets and your dignity is their core mission.

Reverse Mortgages; Should I?

2011-12-16T10:53:00.000-08:00

Reverse mortgages seem to be almost too good to be true at first glance. And like everything else that seems too good to be true, it too has its downsides. The closing costs on this type of mortgage tend to be a lot higher than usual. Most instances the closing costs will be “rolled” into the loan, but that means less money for you in the long-run.
Reverse mortgages are getting more and more popular with people that are planning for retirement.

Pros and cons of a reverse mortgage; retirement planning

Here, Elder Law Attorneys Cohen & Oalican will go more into detail to help you learn if getting a reverse mortgage is the right thing for you:

Pros of a reverse mortgage

Receive a monthly income
Don’t have to rely on family members for income support
Extra money for vacation

Cons of a reverse mortgage

High closing costs
May affect your eligibility to collect Medicaid
Loan has to be paid back after your death – home will have to be sold

There are alternatives to a reverse mortgage. You could choose to just sell your home and downsize to a smaller/less expensive home or apartment. You could get a roommate; a roommate – if you can find the right one – will also offer companionship at the same time they are helping with the bills.

Makesure you explore all your options before jumping into anything, especiallysomething that will burden your family. Call Elder Law Attorneys Cohen and Oalican with any questions that you may have.Offices: Boston, Raynham and Andover Massachusetts.

Shopping for long term care insurance; Elder Law, Boston, Raynham and Andover Massachusetts

2011-12-15T17:48:00.000-08:00

The cost of nursing home care is expensive. Long term care insurance is purchased to cover your nursing home residence, and can also pay for home care and assisted living. But there can be some problems with this coverage...Probably one of the biggest concerns for long term care insurance is the cost.

Questions to ask when comparing long term care insurance policies; Cohen & Oalican, LLP

There will be lots of questions that you will have when comparing long term care policies, but here are – without a doubt – some of the most important questions to ask:

This one will be listed first because it is probably the most important; is the long term care insurance company reputable? Are they known to pay claims?
Look for restrictions in the policy
How long is the elimination (waiting) period?
Should you purchase an inflation rider?
What is the qualification policy?

When should you start looking at policies for long term care insurance?

Deciding when to start looking into purchasing a long term care policy is not an easy decision. It is sort-of a catch-22 situation. If you purchase one when you’re 80 for example, your premium – if they even accept you – will probably way more than you can afford to pay. But, with the way things are changing daily you probably don’t want to look into purchasing a policy when you’re only 50 because you probably won’t need to use it for at least 20 years and who knows what’s going to happen in 20 years…

Attorneys Cohen & Oalican specialize in Elder Law; where protecting your assets and your dignity is their core mission.

Medicaid Planning 101

2011-12-14T12:29:00.000-08:00

Eligibility for Medicaid is always changing. Careful Medicaid planning can help you and your family tremendously. More often than you would think, people are rushing around trying to figure out what their next step will be when an unexpected need for nursing care financing pops up. Planning ahead can help you protect your family’s estate.

Long Term Care eligibility

In the U.S. the only plan that will cover long term care is Medicaid. Most people end up paying for nursing home care out of their pocket until they exhaust all their funds and then, and only then, will Medicaid kick in. Medicaid is considered a form of welfare which you can only qualify for if you’re “impoverished”.

Protecting your assets; Elder Law

There is a way to distribute/transfer your assets in advance to protect yourself and your family. Every persons case will be different though, so the need to talk to an attorney that specializes in Elder Law before it gets too late is imperative. Attorneys Cohen & Oalican specialize in Elder Law; where protecting your assets and your dignity is their core mission.

Contesting a will; Can it be done?

2011-12-13T07:07:00.000-08:00

A family member dies and you quickly find out the beneficiary was not who you thought it would be. So, what do you do? There are steps you can take to contest a will if proper estate planning was not done.

Do you have any legal ground to contest the will?

Here are some things you want to ask yourself if you want to contest a will's validity:

Was the deceased person pressured into changing the will before they died
Were they tricked – maybe told that it was a different document – into signing the will
Was the deceased person mentally capable at the time of signing
Was the will executed properly

Would contesting the will be ‘worth’ the money it would cost for legal representation

Maybe you don’t care about the dollar value. You just want to prove this person’s wrongdoing. Before you make that decision think about how much it would cost to go that route. Sometimes court costs could get high and if the inheritance is not substantial enough to cover that it might not be ‘worth’ the headache of going through probate court.

If abuse is suspected you might want to think about criminal charges being brought up. If you find yourself in this position call Elder Law Attorneys Cohen & Oalican, LLP; Offices Boston, Raynham and Andover Massachusetts

Estate planning with Cohen and Oalican LLP

2011-12-12T11:00:00.000-08:00

Estate planning is not any easy thing to do. It requires a lot of homework, and a lot of talking with family members and attorneys. You will have plenty of questions that have to be answered in order to make the right decisions. Attorneys Cohen & Oalican specialize in Elder Law and will answer any questions you and your family may have.

Things to think about when estate planning:

Drafting a will or trust
Appointing a health care and financial power of attorney
Finding out how to save on your estate tax

Drafting a will or trust with Elder Law Attorneys Cohen and Oalican

Trusts are generally more complex than wills. A lot of people have a trust as well as a will. Certain possessions can be covered with a trust to shield them from federal taxes. Also, when a trust is drafted it saves your trustee several trips to the court house.

Appointing a power of attorney for estate planning

You will need a power of attorney for your health care and finance. In some circumstances the same person is appointed to do both, but make sure the person you appoint as your power of attorney can manage both; if not, you will need to think about getting one person for each task.

Saving money on your estate tax; estate planning

There are several things that one can do to save money on estate taxes. Several insurance-based trusts are not subject to taxing. There are also programs where you can appoint money from your IRA that will be excluded. Gifts can be given up to a certain amount that will lower the value of your estate to reduce taxes also.

Call Elder Law Attorneys Cohen & Oalican for help with your estate planning; Boston, Raynham, Andover Massachusetts.

The revocable living trust

2011-12-09T10:48:00.001-08:00

The revocable living trust is a legal agreement that designates somebody full responsibility for your property - but can be changed at any time or any reason if you are alive and mentally competent. It becomes irrevocable after you die and is quickly becoming the best tool for estate planning.

The power of a revocable living trust

If done correctly a revocable living trust can save a lot of headaches and will also save a lot of time at the court house. Immediately after your death, your assets will be transferred directly to your beneficiaries or will start to be passed out over a period of time (if that is how you set it up).

Living trust or will

Trusts are generally for larger estates and are more complicated and expensive than a will. They both serve the same purpose: who gets your property, who gets your money and how and when they get it.

Protecting your assets, and your dignity through this process is the core mission of each of the attorneys at Cohen and Oalican, LLP.

Estate Planning 101

2011-12-08T07:30:00.001-08:00

Estate planning is probably one of the most important things you can do in your lifetime. Everyone wants to make sure their spouse and kids can live comfortably after they pass. I know it is for me, anyway. Here are a few of the most common will and estate planning mistakes:

The most common estate planning mistakes

Deciding to leave a lump sum of money in your will
Not making a plan for your business (if you own one)
Forgetting to update your documents as things change
Thinking you can write up your own estate planning documents

Estate plans designed to meet you and your family’s needs

Proper estate planning is not easy, but it’s one of the most important things you will ever do. Make sure that your will and estates will go where you want them.

Conservatorship / Guardianship

2011-12-07T12:23:00.001-08:00

There are a few different scenarios as to whether you or your loved ones would need a conservatorship. The most common reason is when a person is mentally ill and cannot or should not make their own decisions. Here are a few things to think about when considering a conservatorship:

Has a power of attorney already been appointed
Is there a living will or medical directive
If a medical directive has been set up, what health matters are and aren’t covered
Is there somebody designated to make decisions for personal life matters (where is the person going to live, who is allowed to visit/spend time with the person)

Conservatorship and Guardianship; Elder Law Attorneys Cohen and Oalican, Boston, Andover, Raynham, Massachusetts

Guardianship is basically the same thing a conservatorship. Simply put, if a person can’t make decisions for themselves, a judge will appoint someone to do just that for that person. They have all legal “say” where they are appointed to; finance or medical care. Sometimes that person will be appointed to cover both jobs; finance and medical care.

Advantages of Conservatorship and/or Guardianship

Family members can be at ease knowing a conservator / guardian that they trust will be handling important decisions
Conservator / Guardian will handle all legal dealings with third parties
Conservatorship / Guardianship helps the process for a judge to approve decision

If a few decisions are made by the conservator, and the family and/or judge is not happy with the decisions the judge can appoint somebody else to the job. Most of the time, the conservatorship will last until the person dies, but the conservator can be UN-appointed if the person becomes able to make their own decisions again.

Retirement Plans

2011-12-06T17:04:00.001-08:00

Start your retirement planning early. Ask Olga Karman; she had to start her retirement plan in a hurry, because before she knew it she was 48 years old wondering where she was going to get her retirement money from.
"I really had to cut back," said Karman, "I sacrificed like you wouldn't believe, and I was not shy about buying secondhand clothes."

Retirement planning; Elder Law Attorneys; Boston, Raynham and Andover Massachusetts

As soon as Karman realized she was so close to retirement, she hurried and started making very large contributions to different savings and investment accounts. She even bought a long-term care insurance policy. For any normal person to do this would not be easy. Sacrificing and cutting back on everything is a very hard thing to do.

Social Security fate concerns Elder Law Attorneys Cohen & Oalican

Nobody knows the fate of Social Security right now, and almost all employer-paid pensions are no longer existent. More and more people are starting to wonder if they will be fit for retirement or not. For many people, that is a very scary thing to think about.

Don’t let this happen to you. Start planning for your retirement as soon as possible.

Indiana's first nursing home for Alzheimer's patients

2011-12-05T07:55:00.000-08:00

Indiana's first special care nursing home dedicated to Alzheimer's disease, which is called Auguste's Cottage at Harrison Terrace, is named after Auguste D. (The first person that was recognized as having this disease) had its grand opening just recently.

Dementia affects four out of eight people over 85; Elder law Attorneys Cohen and Oalican Boston, Raynham and Andover Massachusetts

Dementia affects one out of eight people that are over 65 . Dementia affects four out of eight people over 85. More than 120,000 Indiana nursing home residents have Alzheimer's disease.

Special care nursing home planning for elderly with dementia is offered at Auguste's Cottage

Auguste's Cottage is operated by American Senior Communities which operates over 50 nursing homes in Indiana. The home has 90 residents already and has room for 22 more residents. Residents will benefit from this nursing home by the special services offered. They focus on making their residents feel at home and comfortable, not as if they are in a hospital.

Finding a safe Nursing Home through Medicaid, Probate and Estate planning and Estate Preservation

2011-12-01T17:28:00.000-08:00

The Centers for Medicare and Medicaid have made some major improvements to help us make the right choice for our loved ones nursing home placement. But is it enough?

Nursing home changes in medicare: protecting your family with Elder Law Attorneys Cohen & Oalican

It is now easier to file complaints about nursing homes by making links on their website "stand out" that will link you directly to state survey agencies websites.
Nursing home "resident rights" section "stands out" more. This section provides information on how consumers can take action if their rights are violated. This section also includes information on the Ombudsman program (Long-Term Care).
All new page on their website for "Finding and Comparing Nursing Homes".

Nursing home abuse on elderly with dementia; Boston, Raynham and Andover Massachusetts; Elder Law

2011-11-29T10:11:00.000-08:00

When we move our loved ones into nursing homes, our support and the support of other friends and family is very important. This is especially true when our loved ones have dementia and can't make adequate decisions for themselves.

It is important for families providing elder care or placing loved ones in a nursing home to ask questions.

The Office of the Inspector General for the Department of Health and Human Services reported that elderly patients are often given anti-psychotic drugs that violate government standards, are not accepted for medicare coverage and/or are not approved by the FDA. This really shows how important it is for families and friends to watch closely and ask questions as to which medications are being prescribed to our loved ones.

Pharmaceutical Companies Improperly Promoting Drugs concerns Boston Elder law attorneys at Cohen and Oalican

The FDA puts what is known as a “black box warning” on these anti-psychotic drugs stating that there is a higher risk of death when they are taken by elderly people with dementia. And yet, 88% of the time these drugs were prescribed in ways that violate government standards, they were prescribed to elderly people with dementia.
Lawsuits and settlements suggest that several pharmaceutical companies have improperly promoted these anti-psychotic drugs to nursing homes.

Drugs prescribed violate government standards; Medicaid law

These drugs known as “atypical” anti-psychotics were found to be used by over 305,000 nursing home residents. One in five that were prescribed these drugs were found to be prescribed in a way that violated government standards. Also, more than half of the drugs that were covered by Medicare should not have been covered.

2011-09-23T12:43:00.000-07:00

Guardianship Responsibility, Medicaid Planning, Elder Law.

Elder care for a loved one is a serious responsibility. Like most things in this world it is a complicated. Specialists like an elder law attorney or guardianship lawyer are a valuable resource and can help you. Ultimately the decision to pick the best facility possible for your loved one will be yours to make.

Elder Care Planning

The truth of the matter is that all types of nursing homes exist. Good, bad, and ugly, and everything in-between. Armed with a little knowledge, you should be able to at least make an informed decision that can give you the best possible odds of making the right decision. Guardianship of a loved one is an important responsibility. Here are some guide lines to help you make an informed decision:

Buy more time. Most nursing home admissions happen after a brief hospital stay. This is usually the cusp event that brings immediate needs to the foreground. If the patients is a Medicare recipient, appeal the discharge to with the hospital’s administration. This should give you two more days. Use this time to gather some human resources. If you do not already have on consider contacting a Medicaid planning attorney. Also use the hospital’s resources. Talk with nurses, doctors, social workers, and administrators. Ask questions and get information.

Use the Eldercare Locator Hotline. 1-800-677-1116. This agency can give you a list of local long-term-care facilities and the contact information of your local Eldercare ombudsman. While an ombudsman should not (and are not allowed) to recommend on facility over another, they can answer specific questions about staffing, problems, and administration turnover.

Close to Home is best. Start your search with the facilities closet to your home. It will be more convenient for you to visit. The staff is aware of the residents that get regular visitors. Residents with regular visitors get better care.

Site Visit. This one is important.

Pop in unannounced during regular business hours. You will get a better idea of the workings of the facility. Ask for the administrator and request a tour.

Ask about the ratio of caregivers to residents. Request a copy of the staffing schedule.

Do you smell any bad orders (urine, feces, or other)?

Is the facility clean?

Go into a bathroom. Evaluate overall cleanliness for sure, but what you are checking for is hot water. Lack of hot water is one of the most common nursing home complaints.

Are the residents in the right places? Seeing residents in activity areas, dining rooms, and outdoors is good. Seeing residents being changed, dressed, or toileted is a sign that the facility does not respect the residents right to privacy or dignity. Also are restraints being used? Restraints might be needed in a medical situation, however a good facility works to meet needs using restraint-free methods.

Tour the kitchen. A respectable facility should have no problem with this request. Is the kitchen clean? Does it smell good? Are dry good stored correctly? Look in the refrigerator. Are cold foods stored correctly? Is there a dietitian on staff? Do they keep a list of residents food allergies and likes/dislikes? Is fresh drinking water accessible? Dehydration is a special risk for the elderly in nursing homes.

Inspection Survey. Long-term care facilities should have be able to provide their most recent inspection survey. The report will list the most recent violations found by state inspectors. It is important to remember any inspection is a snapshot of the day and time of the inspection. On any given day, a facility could have more or fewer violations. An inspection may not be representative of the overall, long-term health of a facility. Often violations are corrected on-the-spot prior to the inspector leaving the facility. Read the report carefully . weight the severity of any violations and question the administrator about how they where corrected.

Continuing Needs

Once you have selected a facility and your charge has been admitted there are some things you can do to ensure proper care.

Get involved! Join family and residents council. Each facility should have one. These groups ensure proper care and treatment for all residents. If you do have the time to become an active member get a schedule and sit in on as many meetings as you can.

Visit often! Each resident will have a patient care plan. This document outlines all of the care requirements including dietary needs, medications, and rehabilitation directives. The most important thing you can do to ensure proper care of your charge is to visit often and monitor that the patient care plan is being followed.

2011-09-10T15:13:00.000-07:00

Elder Law Attorneys Discuss Medicare

In this era of recession, doom and gloom economic new has become the norm. Good news, even a little can be comforting. Average premiums for Medicare Part D will fall slightly in 2012.

The Rising Cost of Medicare

Medicare Part D is a federal program to subsidize the costs of prescription drugs for Medicare beneficiaries. It was enacted in 2003 and went into effect in 2006. Average premiums have not fallen since 2007. In a move to protect their profits insurers set prices high. Premiums fell when the actual costs was lower than expected. Premiums have been on the rise every year since.

Medicare Costs Lower in Boston

The heavy reliance on the use of generic drugs and competition among insurers are the main cost control factors. In a recent study Harvard Medical School and Brigham and Women's Hospital, found that the program had resulted in lower costs for some medications used to treat some common conditions. The study found that in Boston, Medicare Part D reduced health care spending by almost 10 percent.

Medicare Planning

It is important to remember that this is an average of many plans in many regions. So when people are planning for Medicare that some people in some regions will actually see a premiums rise in 2012. So take some time with your Medicare planning, evaluate plans carefully. It is important to note that the enrollment date come earlier this year. It begins October 15th and ends December 7th.

2011-08-31T12:11:00.000-07:00

Boston, Raynham, Andover, Elder Law Attorneys Discuss Shortage of Geriatricians.

America is facing a shortage of health care professionals. Looking deeper into this looming crisis, and we see a shortage of geriatricians. A geriatrician is a doctor who has specialized in the treatment of the older folks of our society. As reported by the NY Times, there is a shortage of health care professionals with experience in treating older patients: geriatricians, nurse-practitioners, social workers, and geriatric psychiatrists. The Institute of Medicine and the American Geriatrics Society agree that such a shortage exists.

Geriatricians are the least paid of all medical specialists, boston elder law Attorneys can help with special needs planning

Students are not specializing in geriatrics or gerontology. They are reluctant to specialize for perceptual and financial reasons. Younger students find the thought of working with the elderly as depressing. They are also aware that they will make less money than their peers despite an extra year of training to become a geriatrician. Geriatricians are the least paid of all medical specialists. A geriatrician right out of school can expect to earn about ten percent less than their fellows.

Geriatrics Specialists are Not Included in The National Health Service Corps debt relief program, boston elder law attorneys can help with special needs trust.

Many health professionals face a mountain of debt after school. The average physician owes more than $150,00 after completing education. The National Health Service Corps has a program in place to help professionals with some of this debt. Health car professionals that agre to work in rural or inner cities can earn $30,000 for one or two years of service, and up to $170,000 for five years. However, geriatrics specialists are not included in the federal law that funds this program. The National Service Corps has recently been able to include the specialists because the secretary of human health and human services, Kathleen Sibelius, stepped in and made it happen. This is not a permanent solution and future secretaries could just as easily reverse her decision.

The Eldercare Workforce Alliance is a group made up of consumer, health care, care giving, professional, and governmental groups. They have proposed a bill modifying the legislation that governs the National Service Corps. It would include geriatrics specialists and would require no additional expenditures. The bill is framed well with the title Caring for an Aging America Act and it short and concise, it only contains 29 words. It seems like an easy decision, but the political climate is not good. A previous version of the bill died and the last congress, and hopes are not high that it will pass with this congress.

What we are left with is one medical specialist for every 2,000 Americans over the age 75. Nancy Lundebjerg, chief operating officer of American Geriatrics Society and co-organizer of the Eldarcare Workforce Alliance asked the question, “Can we keep the shortage of people with training from getting any worse?”

PROPOSED MEDICAID LEGISLATION IN MASSACHUSETTS - Boston Elder Law

2011-08-03T08:39:00.000-07:00

Hardship Waiver, Senate Bill 490M

Under current MassHealth regulations there is a so-called Hardship Waiver which is intended to ensure that an applicant will continue to receive necessary nursing home care even if they have transferred assets.

Typically if an applicant transfers assets Medicaid imposes an ineligibility period. In certain cases, the applicant cannot get the gifted assets back despite their best efforts. If there are no other funds available to pay for their care, the applicant could be discharged from the facility, putting them at risk. The Hardship Waiver states that if an applicant proves to MassHealth that they cannot get the funds back, and that the nursing home has begun discharge proceedings which place the applicant’s life at risk, MassHealth will consider waiving the ineligibility period. In theory, this regulation should be enough to protect applicants. However, in practice, MassHealth hardly ever grants a waiver. The proposed regulation clarifies that MassHealth should presume the applicant is eligible for the waiver if they meet the regulatory requirement. Also, the bill eliminates the need for the nursing home to begin discharge proceedings. Unfortunately, MassHealth does not play by the rules and this bill is necessary to make it very clear that Hardship Waiver should be utilized.

Intent of Transfer, House Bill 2083

MassHealth’s regulations state that an applicant for benefits should not be penalized for a gift if it was made for a reason other than to qualify for MassHealth. MassHealth ignores this regulation and treats all transfers the same without considering the intent behind the gift. Each of us, at some point in our lives, has made a transfer without thinking about future nursing home care and applying for Medicaid - paying for a child’s wedding, helping support family members when someone loses a job, or paying for a grandchild to go to college. Presently, MassHealth imposes an ineligibility period even if at the time of the gift the applicant was in perfect health, without any inkling that nursing home care was in their future. This bill would force MassHealth to consider a number of factors in determining whether the gift was made for purposes other than to qualify for MassHealth. These factors would include, among others, whether the applicant was in good health at the time of the transfer and whether the transfer was made to relieve a relative’s financial difficulty. The bill would protect seniors from being unfairly penalized as a result of simply living their lives.

Protection of Retirement Benefits, House Bill 2097

MassHealth allows the spouse living in the community to retain their house in addition to $110,000 of “countable assets.” The purpose of this “spousal protection” is to enable the spouse to continue living in the community and to avoid his or her impoverishment. In addition to the $110,000, the spouse living in the community is entitled to keep certain noncountable assets which are excluded when MassHealth determines eligibility for the spouse in the facility.

Current regulations are based on an outdated idea of retirement resources.

Current MassHealth law was written with a mind toward protecting spousal retirement funds. However, the current regulations are based on an outdated idea of retirement resources. In past years, retired elders could depend on receiving a monthly pension from their employer. In addition, employees often stayed with one company for their entire lives. Over the last ten years, and especially in the current financial crisis, we have all seen the guarantee of a monthly pension disappear. Instead, the monthly pension has been replaced with retirement savings accounts such as 401(k)s and IRAs. In addition, employees are often forced to change jobs several times over the course of their working lives.

There are increasingly many gaps where the current law does not protect retirement funds.

MassHealth allows a spouse in the community to keep his or her monthly pension income. In addition, current law protects the 401(k) of a currently employed spouse of a nursing home resident. However, now that monthly pensions are less common, there are increasingly many gaps where the current law does not protect retirement funds. Again, I believe this is an oversight and reflects an outdated view of how retirement is financed. For example, although a 401(k) of a employed spouse is considered a protected asset under the MassHealth rules, the 401(k) is not protected if the spouse is retired at the time of application. Another trap for the unwary: if the elder changes employers, the 401(k) from the first employer becomes countable. Yet another pitfall: if a spouse changes employers and rolls their 401(k) over into an IRA, the funds are no longer protected. Our laws should not be so arbitrary in deciding who is protected and who is vulnerable.

The Committee seemed very receptive to our testimony in support of the these bills. Based on their questions, they appreciated that the bills would reduce some of MassHealth’s arbitrary and capricious interpretation of their own regulations. It remains to be seen what will happen during the budget discussion, but perhaps if we all let our representatives know how we feel, the bills could become law.

Should Competent Seniors be Able to End Their Own Lives to Save Health Care Costs

2011-07-19T09:27:00.001-07:00

Medicare is the federal health insurance program for seniors and one-quarter of its allotment is spent caring for elders during their last year of life, according to the Dartmouth Institute for Health Policy & Clinical Practice. Public debate over end of life decisions has been extremely contentious and political. Any attempt to civilly discuss this issue especially in relation to costs quickly veers off into sound bites regarding "death-panels."

Regardless, public awareness of this issue has been on a steady rise over the past three decades, from 59 percent in 1977 to nearly 70 percent last year, according to the General Social Survey conducted by NORC at the University of Chicago.

Should a competent adult be able to end his or her own life?

A new spin on this decades old question has now been brought to the forefront in a nationwide poll from Suffolk University's Political Research Center. The current question considers whether a competent adult should be able to end his or her own life in an effort to save on health care costs, and researchers were surprised at the results.

After surveying 1,070 adults nationwide, thirty-five percent said they would favor allowing "mentally able seniors" to end their own lives in an effort to "help save health care costs." This direct link between senior health care spending and end-of-life choices was considered to be an amazing finding by David Paleologos, director of the Suffolk University Political Research Center.

In breaking down more than one third of the yes votes, men were more likely than women to say yes; the Northeast and the West were more in favor of the seniors being able to end their lives whereas the South and the Midwest had lower percentages; among the least likely to favor seniors ending their lives were those aged 75 and over, but those in the 55-64 range were more likely advocates. Additionally, those with higher education levels were greater proponents of the seniors being given the choice to end their lives as well as those with greater household incomes.

thirty-five percent said they would favor allowing "mentally able seniors" to end their own lives in an effort to "help save health care costs.

one third of the yes votes, men were more likely than women to say yes;

Northeast and the West were more in favor of the seniors being able to end their lives

the least likely to favor seniors ending their lives were those aged 75 and over

those in the 55-64 range were more likely advocates

those with higher education levels were greater proponents

One-third of those surveyed agreeing that "mentally able" seniors should be able to end their own lives.

Increasing anxiety over the rising cost of health care, and continuous debates surrounding a potential Medicare overhaul may be the reasoning behind what David Paleologos considers to be an amazing result of over one-third of those surveyed agreeing that "mentally able" seniors should be able to end their own lives in an effort to save on health care costs.

Recently we came across an essay in the New York Times beautifully describing how one man is approaching end of life decisions. Keep in mind that no matter where you stand on the issue of end of life decisions, for each of us it is critical that we have a health care proxy with a medical directive. Click here for more information about health care proxies.

Let us know if you have any questions or comments.

Regards, Steve & Eric

Change in Treatment of Tax Refunds for Medicaid and SSI Purposes

2011-06-15T08:46:00.001-07:00

The extension of the Bush-era tax cuts this year included a little noticed provision that will impact those receiving or applying for Medicaid or SSI benefits. Under the law, tax refunds will not be considered countable income or a countable asset for up to twelve months from receipt of the refund. In other words, if an applicant can verify that part of the funds in his account are from a tax refund from the previous year, those funds will not be considered a countable asset, as long as the funds are spent within twelve months of receiving the refund. This new law applies to any refunds received after December 31, 2009. In addition, according to the new law, should an applicant seeking Medicaid nursing home benefits transfer all or part of the tax refund to a trust within twelve months of receiving the refund, this transfer will not be penalized by Medicaid.

For example, under the prior law if a Medicaid recipient residing in a nursing home received a tax refund, they would have to spend these funds down quickly either by paying the refund to the nursing home or perhaps prepaying for their funeral. If the Medicaid recipient received an $8,000 tax refund and then in turn transferred these funds to a trust they would have made themselves ineligible for one month of benefits. Under the new law, the nursing home resident has twelve months to spend down the funds and they are not penalized for transferring the funds to a trust.

Let us know if you have any questions or comments. For more information, please visit our website, www.cohenoalican.com

Upcoming speaking events: Steve will be giving an all day seminar on June 20th on Long-Term Care Planning and Medicaid, through the Boston Tax Institute. This program is open to the public and is eligible for CLE's to Social Workers and Nursing Home Administrators.

Regards,

Steve & Eric

Reverse Mortgages–Part 4

2011-05-30T11:48:00.000-07:00

Resources

· AARP - has an excellent section dedicated to reverse mortgages, including a reverse mortgage calculator then can give you an idea before you apply of how much money you might be able to take out of your home.

http://www.aarp.org/money/credit-loans-debt/reverse_mortgages/

· The National Center for Home Equity Conversions - has greater detail, and many supplemental materials.

http://www.reverse.org./

· The names of FHA insured lenders can be requested from the Federal National Mortgage Associations (800) 7-FANNIE (Fannie Mae)

· The attorneys at Cohen and Oalican would be pleased to assist you in evaluating all of your financial options, including Reverse Mortgages.

http://www.cohenoalican.com

Reverse Mortgages–Part 3

2011-05-26T11:38:00.000-07:00

Reverse Mortgage Pro's

Fast access to your equity.
The mortgage is typically not paid until you die.
Proceeds can be used for in-home care if you do not qualify for, or cannot get adequate in-home care, keeping you out of a nursing home for as long as possible.
If you have great need for the cash flow from a reverse mortgage, and preserving your estate for your heirs is not the primary objective of your financial plan, this can be an effective way of supplementing your cash flow.

Reverse Mortgage Con's

High Closing costs.

· Closing costs for Reverse Mortgages can be as much as double what is charged for a conventional mortgage.

Potential impact on eligibility for government benefits.

· Reverse mortgage payments are not typically counted as income, if the proceeds are spent in the month they are received. If the proceeds from the reverse mortgage however are not spent and accumulate in a bank account, they could push you over the allowable limits for Medicaid of SSI. Certain states may also consider the proceeds to be income, even though it is your own equity, as you receive a monthly check.

Spending your children's inheritance.

· If you are trying to preserve your estate for your heirs, the mortgage will be paid off through your estate. Your inheritors can receive the difference, however, between what you owe on the reverse mortgage and what the home actually sells for if there is an excess.

Moving Out.

· Under certain circumstances, if you end up moving to a nursing home, it could be construed as having “permanently moved out”, as there may be a presumption that an elderly person leaving their home for a nursing home would not be returning. If this were the case, it could force the sale of the home.

to be continued…

Reverse Mortgages–Part 2

2011-05-21T11:34:00.000-07:00

How much can I borrow?

What can be borrowed is not a set amount, it is a formula that takes the following into consideration.

1. The age of the borrower.

The older the borrower, the more that can be borrowed.

2. Current Interest Rates

The lower the interest rate, the more that can be borrowed.

3. The equity in the home.

The greater the value of the home, the more that can be borrowed.

4. The location (county) of the home

AARP has a very effective calculator that can help you determine how much money you might be able to take out of your home.

http://rmc.ibisreverse.com/rmc_pages/rmc_aarp/aarp_index.aspx

How is the Reverse Mortgage paid off?

Typically, the reverse mortgage is paid off by the borrower's estate.

The reverse mortgage can also be paid off from the proceeds of the sale of the house if the house is sold before the borrower is deceased.

What if I owe money on my home?

If you do not own your home outright (if there is an existing mortgage) you must pay off that mortgage, however, it can be paid off with the proceeds of the Reverse Mortgage.

to be continued…

Reverse Mortgages–Part 1

2011-05-17T11:31:00.001-07:00

Introduction to Reverse Mortgages from an eldercare perspective.

Elders often struggle to find the resources to stay out of nursing homes, and stay in their home, but still need in-home care. A reverse mortgage can be used to help make that happen.

Medicaid can be used to pay for nursing home care, but stay at home care can be difficult under Medicaid.

A reverse mortgage is not a panacea and should be evaluated with the help of an elder care attorney or elder care financial advisor.

What is a reverse mortgage?

A reverse mortgage is a loan designed specifically for elders (62 years of age or older) to take money out of their home either in payments, in a lump sum, as a credit line, or as any combination of the three.

Repayment of a Reverse Mortgage

A Reverse mortgage is a LOAN, and that loan has to be repaid.

The loans do not have to be repaid until any of the following 3 events occur.

1. the last surviving borrower dies.

2. the home is sold.

3. the borrower moves out permanently.

What is the purpose of the Reverse Mortgage?

One must never forget that the first purpose of any financial instrument, is to make money for the lender.

The intention or motivation for a reverse mortgage was to give seniors that were real estate rich, but cash flow disadvantaged, fast and easy access to the equity in their home for any purpose, including home based elder care.

to be continued….

Elder Abuse, a growing crisis without leadership–Part 3 of 3

2011-04-19T10:03:00.000-07:00

So who is responsible? The Administration on Aging & Health and Human Services are supposed to be providing the leadership services to put this problem in the spotlight where it can get the resources it needs to support our seniors. The Elder Justice Act of 2009 makes grants available to states for Adult Protective Services Programs. The Act also puts forward the means of creating, and implementing national priorities. The Act, however, does not speak to national Elder Abuse Studies.

The report recommends that no less than The Secretary of Health and Human Services should determine the importance of providing Adult Protective Services with dedicated resources, and work with the Attorney General to create and deploy a national Adult Protective Services database so that the true measure of this problem is understood.

It is our firm’s hope that once properly understood, and the real depth of elder abuse comes to light, and thereby appropriate resources will be finally granted to the states to stop this horrible crime.

The report does seem to point to a need for better information, better cooperation, and better standards. However what the elder community needs is real support.

With big government’s seeming paralysis to act on almost 50 years of “good intent” the need for legal representation, specializing in Elder Law is very obviously paramount. While the firm of Cohen & Oalican deplores the need for protection for the elderly, the rising tide of abuse, in share numbers and sophistication makes it obvious that qualified legal counsel needs to be retained to help protect our more vulnerable population.

Please, if you are a victim of abuse, don’t hide it, seek out help from law enforcement, and with an attorney. If you haven’t been a victim of elder abuse, engage the services of an elder law firm to help you in decisions where you might be vulnerable.

Abuse and neglect should be important to all of us. Contact the elder law offices of Cohen & Oalican to talk to us. A loved one in your life may be the victim of nursing home abuse and neglect. An attorney can help you understand the law and what to do next

Elder Abuse, a growing crisis without leadership -Part 2 of 3

2011-04-12T09:59:00.000-07:00

Elder abuse case loads are growing in both number, and complexity. According the study, APS (Adult Protective Services) program resources are not keeping pace with these changes. It is difficult to keep pace with enough caseworkers, and keep APS caseworkers appropriately trained, to help our growing elder community.

The study indicates that a lack of coordination in collecting, maintaining and reporting statewide case level administrative information, which limits government’s ability to track the effectiveness of services that they have provided.

The Older Americans Act of 1965 spoke to the importance of needed federal leadership in the elder justice area, the study states that no national policy priorities currently exist… almost 50 years later!

Seven agencies within the Departments of Health and Human Services, as well as the Justice Department authorized 11.9 million dollars in grants in 2009 for support for the justice department to support sharing of information between Adult Protective Services and its many partners, like law enforcement. However, the result has not offered Adult Protective Services the support they need to resolve elder abuse cases, or in standardizing the information that they need to effectively report on the problems that they have encountered.

Part 3 next week…

Cohen & Oalican acts aggressively against nursing home abuse and neglect. We proudly provide legal services to the elderly and persons with disabilities and their families. If you have an elderly parent or relative in a nursing home, and you suspect they are being abused or neglected, get help right away. Our nursing home abuse lawyers will advise you on nursing home abuse laws and the rights of residents under the care of nursing home staff. Contactone of our nursing home attorneys to schedule a consultation. A specialist in nursing home neglect will investigate the abuse or neglect and help you decide what may be your best legal options.

Elder Abuse - a growing crisis without leadership Part 1 of 3

2011-04-05T09:54:00.001-07:00

According to the March 2011 Government Accountability Office (GAO) report “Leadership could Enhance National Response to Elder Abuse” over 14% (14.1%) of elders (not institutionalized) have experienced elder abuse.

Below is a link to the study.

http://www.gao.gov/products/GAO-11-208

Elder Abuse is categorized as

· Psychological

· Physical

· Sexual Abuse

· Neglect

· Financial Exploitation.

The study, and three similar studies preceding it, indicates that the numbers are likely higher due to non-reporting among seniors.

The factors that leave elder adults prey to abuse include:

· Physical and Cognitive Impairments

· Mental Problems

· Low social support among victims.

This abuse has been associated with a negative impact on health and longevity. In short, we have a growing problem of elder abuse, that’s literally killing our elderly population.

Part 2 to be posted next week…

Cohen & Oalican acts aggressively against nursing home abuse and neglect. We proudly provide legal services to the elderly and persons with disabilities and their families. If you have an elderly parent or relative in a nursing home, and you suspect they are being abused or neglected, get help right away. Our nursing home abuse lawyers will advise you on nursing home abuse laws and the rights of residents under the care of nursing home staff. Contact one of our nursing home attorneys to schedule a consultation. A specialist in nursing home neglect will investigate the abuse or neglect and help you decide what may be your best legal options.

10 Most Important Cuts to MassHealth

2011-03-28T06:59:00.000-07:00

2011-03-28T06:19:00.000-07:00

Top 10 Most Important Cuts to MassHealth for Seniors, the Disabled, and their Families

2011-03-22T09:14:00.001-07:00

continued from March 14th….

6. Elder Home Care

Approximately 2,500 frail elders each month are able to receive community based care services allowing them to stay in their homes and out of hospitals or other care facilities. There are now more than 2,700 elderly each month on waiting lists for these services. This program has experienced a $21.7 Million cut.

7. Elder Protective Services Cut

It’s no secret that the elderly are frequently preyed upon by the unscrupulous, and often loose whatever nest eggs they have managed to save and protect. The program that focuses on protecting the elderly has experienced a $1.5 Million (or 9% when adjusted for inflation) cut. More cases of elder abuse are likely to go uninvestigated. Fewer Guardians may be granted to Massachusetts most vulnerable elders.

8. Council on the Aging

The Council on the Aging sponsors locally focused programs that provide a variety of recreational and support service to elders. Adjusted for inflation this has been cut 11% since 2009. This year, it experience an almost Million Dollar cut in funding.

9. Geriatric Mental Heal & family Caregivers programs eliminated

This is a quarter of a million dollar program that has been entirely eliminated in the 2011 budget.

10. Home Care of the multi-Disabled

28% of the budget since 2009 for this program has been cut (adjusted for inflation). This program provides funding for home care of the multi-disabled, enabling a higher quality of life for those with multiple disabilities, who would otherwise be forced into institutional care.

If you have any concerns about how these cuts will affect you, contact our Elderlaw Attorneys at http://www.cohenoalican.com

Top 10 Most Important Cuts to MassHealth for Seniors, the Disabled, and their Families

2011-03-14T09:47:00.000-07:00

Continued from March 7th 2011

Here are the major cuts that impact our clients. The following is a link that has a more inclusive list of budget cuts..

http://www.massbudget.org/documentsearch/findDocument?doc_id=614&dse_id=1293

1. Restorative Dental Care

700,000 adults relied on MassHealth for restorative dental care in 2010. Just over 18% were seniors.

2. Reduction in Hours for Day Services to Disabled Adults

Coverage for day services has been cut from six to five hours a day.

3. Personal Care Attendant Services Limited

Many disabled adults require only limited assistance. For instance they might need help getting in and out of bed, dressing and bathing, but are otherwise self sufficient. The 2011 plan establishes a floor. If your need is less than 14 hours a week, you will no longer be eligible.

4. Prescription Advantage Cuts

$26 Million has been cur tom the Prescription Advantage program, Some low income elderly will no longer have subsidies for the portion of their prescription drug costs not covered by Medicare Part D.

5. Respite Services Cut

$12.7 Million in funding will be cut for respite and intensive family support services. These services support the family care givers. Giving parents of disabled children, or children of parents with disabilities support and a safety net.

Stay tuned for the last 5 next week…

Top 10 Most Important Cuts to MassHealth for Seniors, the Disabled, and their Families

2011-03-07T07:13:00.001-08:00

Introduction

We at Cohen & Oalican feel it is incumbent on us to keep our Elder, and disadvantaged client base abreast of the changes to our state’s Medicaid program, MassHealth in these economically challenging times.

As a result of the recession, politics, changing demographics, and many other factors, there have been some significant cuts to MassHealth, and other Health Reform programs.

Our job is not to comment on politics or right and wrong, but to help our clients who require services to get those services, without compromising their economic status. A large part of this is navigating MassHealth. Appropriate elder law attorney representation is a tremendous safeguard, our advice is to always PREPARE while you or your loved ones are healthy, not REACT. When you are in need of either, please feel free to contact us.

Briefly, Fiscal Year 2011 has seen an increase of less than 3% in funding, at a time when more demands are being placed on the Medicaid system, with healthcare cost inflation (depending on who is doing the estimates) is running anywhere between 5% and 8%. This means that funding, while it has increased, is not keeping up with healthcare inflation, at a time when overall demand on the fund is increasing due to the pure economics of more and more baby boomers retiring, and more and more younger people entering the Medicaid/MassHealth system due to unemployment from the recession.

to continue…

Alzheimer's & Dementia

2011-03-02T03:45:00.000-08:00

Alzheimer’s and Dementia Part 3

2011-02-24T17:45:00.000-08:00

4. Financial Status

Use this week to ask tough questions about your parents financial status. Be sure that their finances are appropriately managed after their diagnosis of Alzheimer’s or Dementia. Find the location of safety deposit boxes, bank accounts, investment or brokerage accounts, outstanding debts or other assets unknown to the family. If you don't have these hard discussions, funds that could be used to cover the costs of long term care could be lost and forgotten when memory loss ultimately occurs.

5. Contacts and information

Ask now, while memories are still sharp. Begin to work with your elder parents to compile a list of important contacts and other information that will be useful to the family if memory loss occurs. Get information on doctors, professional advisors (ie. accountant, attorney, financial advisor) and important passwords for online accounts.

“These conversations are NEVER easy. Having these talks though can ease every member of the family's transition into living with Alzheimer’s or Dementia.” says Steve Cohen. “Plan Ahead, if at all possible, don't leave these things till it is too late and you have to react instead of plan. Your parents will appreciate your care and concern that their wishes be followed and honored ”.

For further information contact our elder law attorneys at Cohen & Oalican, LLP.

Alzheimer’s and Dementia Part 2

2011-02-21T17:36:00.000-08:00

According to the law firm of Cohen and Oalican, elder law attorneys in Boston, MA, there are 5 specific conversations adult children should have with their parents as soon as the opportunity presents itself. They comprise the following:

1. Long-term care preferences

Would your parents prefer nursing home, long term care, or in-home care if there had to be a choice? If they prefer a long term care or nursing home facility, what amenities and activities are important to them? Asking these questions early can smooth the moving to an assisted living facility or a home-health care program far simpler should the need ever present..

2. Legal Documentation

What good is a living will if no-one knows where to find it? It is critical that you know what legal documentation your parents have before incapacity occurs. This includes making sure their parents have a power of attorney, health care directive and HIPAA forms so someone can easily step in to make financial or medical decisions on their behalf. In absence of this documentation, the family can be forced into petitioning a court for control over their parents. This can be expensive, time consuming, and may not result in what your aging parent wanted with their lives.

3. Medical Preferences and Wishes

Please discover what type of, and how much care your aging parents want as soon as possible after their initial diagnosis of Alzheimer’s or Dementia. Understand their desires about life support and other end-of life medical treatments. Who do they want to make these decisions for them if and when they can’t? This will help your parents' security in knowing that their desires in this area will be carried out, despite the family trauma that enfolds itself around Alzheimer’s and Dementia.

to be continued….

Alzheimer's and Dementia

2011-02-15T17:29:00.001-08:00

While most of the country is involved in Valentines activity this week, those who care for elders with special needs are more than aware that this is also Alzheimer’s and Dementia awareness week (February 14th –21st). This week is the perfect time to show your love for those you care for by having the “tough love” hard conversations with elderly aging parents about their wishes and plans should the disease ever strike.

“Does Dad want to be in an assisted care facility, or a nursing home?”

“Does Grandma look at life with Alzheimer’s or Dementia to be quality of life?”

“Do you have, and where do you keep legal documentation ensuring someone can act financially on mom or dad’s behalf if they are no longer able to act on their own behalf?”

These are many questions that experts in all fields urge adult children to ask of their parents during this year’s Alzheimer’s and Dementia Awareness Week (February 14th- 21st). These answers help family’s build a plan, and know how to execute their parents’ wishes in the tragic event that mental illness strikes. Don’t leave the decisions to when it becomes a battle between siblings, or until there isn’t enough time to financially prepare. Have these heartfelt conversations now.

“We see so many families that waited on important conversations, that come to us in crisis mode, instead of planning mode regarding Alzheimer’s or Dementia - Crisis mode is expensive, and results too often in knee jerk, and expensive decisions.” says Boston elder lawyer, Stephen Cohen. “Legally, if an adult child doesn’t know their parents’ wishes, or can’t put their hands on instruments like a durable power of attorney, they can be left with a legal, financial and tax quagmire, while simultaneously dealing with the physical and emotional needs of this debilitating disease”, adds elder law partner Eric Oalican.

to be continued…

Alternatives to Nursing Homes as Nursing Home Populations Swell With Younger Patients – Conclusion

2011-01-18T08:32:00.000-08:00

Our current health care reform has several provisions to incentivize states to expand at home care, but there is still a strong “institutional bias” that requires states to fund nursing homes, but makes the payment of nurses for at home care optional. Despite the savings, participation in a new Federal pilot program that promotes at home health care is optional for states.

Another trend that has been found is that the population in nursing homes is changing to those who are either sicker, or more economically disadvantaged. Those with the ability to pay, are moving to assisted living facilities. Those who do not have as great a medical need (i.e. Healthier, but still in need of assistance) are also better served in more independent living facilities. This new movement creates a nursing home population that is more disadvantaged both from a medical and a financial perspective.

NPR reports that “By federal law, people who face going into a nursing home must be told about alternatives. But in Miller's study in one state, nearly 30 percent of younger people in nursing homes said they weren't told about options. Often doctors and other health care providers just don't know what's available — and recommend a nursing home instead.”

Many times, when younger people chose to not to into a nursing home, it is at the expense of family members. These family members provide care at no cost to the state. While the state gets a free pass, the care giver family members can bear a huge burden in terms of health, time and stress.

There are alternatives for many younger people to nursing home care. With an experienced legal advocate by your side, you can also consider independent living facilities. Many severely disabled people still live full and rich lives, not even in a facility, but with at home care. It will frequently take an experienced attorney to protect your rights, and to help you determine what care is most appropriate for your situation.

We welcome hearing from you if you or a family member has special needs, and is looking for alternatives to nursing homes, or looking for ways to protect your family financially from the costs of long term care.

Call one of elder law attorneys at Cohen & Oalican, LLP Boston, Andover and Raynham.

Alternatives to Nursing Homes as Nursing Home Populations Swell With Younger Patients - Part 2

2011-01-10T09:06:00.001-08:00

One of the main reasons cited for this movement of younger people into nursing homes are the budget cuts most states face in Medicare and Medicaid. In the long term, it is more cost efficient to care for a younger person in their home with part time caretakers. However, in the short term, this is a more expensive way of treating patients, as the caregivers need to be hired and trained. In the budget crunch most states are experiencing, short term funding takes priority over long term spending. Younger people are being moved into nursing homes earlier, as in the short term, this is a more economically viable way of treating them.

According to a study by the AARP Public Policy Institute, the cost of at home care is about a third the cost of providing care in a nursing home or institution. Many states, however, simply do not have the funding for at home care in their Medicaid programs.

One of the most telling quotes about the movement of younger people to nursing homes is:

“Over the past 20 years, federal laws and policies have established a civil right to get long-term care at home. But NPR's investigation found that is only sporadically enforced.

More than 60 percent of what states spend on long-term care for the elderly and disabled goes to pay for people — like Michelle Fridley — to live in a nursing home. The amount spent on home-based care has grown steadily, but not nearly enough to meet the need. Nationwide, there are some 400,000 people on state waiting lists for home-based care, double the number 10 years ago.”

Frequently attorney’s like our firm, that specialize in caring for the elderly, and those that have long term care needs, must be engaged to support a patient’s right to at home care. In 1999, the right to at home care was clearly established in the Supreme Court, in the “Olmstead Case”. In that decision, the Supreme Court stated that the unnecessary institutionalization of people with disabilities is a form of discrimination.

To be continued…

Alternatives to Nursing Homes as Nursing Home Populations Swell With Younger Patients - Part 1

2011-01-05T10:09:00.001-08:00

We heard the other day on National Public Radio, that one of the fastest growing populations in Nursing Homes is not the elderly, but rather adults aged 31 TO 64.

These patients that are victims of disease, accident, health failure, or mental health problems. Many of these new patients could be cared for at home, or assisted living facilities, but are instead finding themselves in the Nursing Home System. Young people aged 31 to 64 are the single fastest growing population of nursing homes. This population has grown roughly 40% since 2000.

This report underscores the fundamental need for legal advocacy when considering nursing home care, or alternatives to nursing home care.

You can see the full report here.

http://www.npr.org/2010/12/09/131912529/a-new-nursing-home-population-the-young

All too often, people think of nursing homes as a repository for the elderly, and disability attorneys like Cohen and Oalican as being entirely elder law. There is a huge sense of accomplishment for us, however, when we can use our skills and help young people, and their families, to live a fulfilling life, perhaps outside of institutional care, and despite their disadvantages. We have long been involved in special needs trusts to help protect family’s finances when there is a young (or younger) family member with special needs.

To be continued….

Proposed Tax Changes for 2011

2010-12-29T10:53:00.001-08:00

Make video montages at www.OneTrueMedia.com

Preview of the Proposed New Tax Relief Act of 2010–Conclusion

2010-12-28T12:21:00.000-08:00

Changes to Regulated Investment company (RIC).
Do you have investments in an offshore owed Regulated Investment company (RIC). Here’s what changes you might be able to expect if the current bill is extended.

Estate tax look-through of certain Regulated Investment Company (RIC) stock held by nonresidents. Although stock issued by a domestic corporation generally is treated as property within the United States, stock of a RIC that was owned by a nonresident non-citizen is not deemed property within the United States in the proportion that, at the end of the quarter of the RIC’s taxable year immediately before a decedent’s date of death, the assets held by the RIC are debt obligations, deposits, or other property that would be treated as situated outside the United States if held directly by the estate (the “estate tax look-through rule for RIC stock”). The proposal permits the look-through rule for RIC stock to apply to estates of decedents dying before January 1, 2012.

By the time you read this, much may have been changed. What we know for sure is that there will be change and it will impact our elder and special needs clients. Please consult with us, or with an appropriate elder law attorney as you make decisions that will impact your taxable situation for the coming years.

Your friends at…

Cohen & Oalican

Boston Elder Law Attorneys
Raynham Elder Law Attorneys
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Preview of the Proposed New Tax Relief Act of 2010 - Part 4

2010-12-26T12:17:00.000-08:00

Once again.. this is a preview of what is currently under discussion. It is NOT law, and should not be looked at as political, legal, or financial advice. This is only a brief look at some of the currently debated act, as it impacts our senior clientele.

Tax Free Distributions to Charity from IRA Account
Continuing on the theme of philanthropy, if approved, there will continue to be opportunity to make charitable contributions from your retirement account without attracting a tax penalty.

The bill if approved in its current form extends through 2011 the provision that permits tax-free distributions to charity from an Individual Retirement Account (IRA) of up to $100,000 per taxpayer, per taxable year. The bill allows individuals to make charitable transfers during January of 2011 and treat them as if made during 2010.

To Be Continued…

Your friends at…

Cohen & Oalican, LLP

Boston Elder Law Attorneys
Raynham Elder Law Attorneys
Andover Elder Law Attorneys

Preview of the Proposed New Tax Relief Act of 2010 - Part 3

2010-12-23T12:10:00.001-08:00

Estate Tax
Top on the list for most of our elder law clients, is preserving their estate. Below are the changes, verbatim, on what we may expect to see in tax relief in Estate Taxes.

Temporary Estate Tax Relief
Temporary estate, gift and generation skipping transfer tax relief. The EGTRRA phased-out the estate and generation-skipping transfer taxes so that they were fully repealed in 2010, and lowered the gift tax rate to 35 percent and increased the gift tax exemption to $1 million for 2010. The proposal sets the exemption at $5 million per person and $10 million per couple and a top tax rate of 35 percent for the estate, gift, and generation skipping transfer taxes for two years, through 2012. The exemption amount is indexed beginning in 2012. The proposal is effective January 1, 2010, but allows an election to choose no estate tax and modified carryover basis for estates arising on or after January 1, 2010 and before January 1, 2011. The proposal sets a $5 million generation-skipping transfer tax exemption and zero percent rate for the 2010 year. 5 of 12

Conservation Gifts & Capital Gains
For those clients considering the philanthropic disposition of property for purposes of conservation, the following is being contemplated.

Extension of provision encouraging contributions of capital gain real property for conservation purposes. The bill extends for two years (through 2011) the increased contribution limits and carry forward period for contributions of appreciated real property (including partial interests in real property) for conservation purposes.

To be continued…

Your friends at…

Cohen & Oalican, LLP

Boston Elder Law Attorneys
Raynham Elder Law Attorneys
Andover Elder Law Attorneys

Preview of the Proposed New Tax Relief Act of 2010 - Part 2

2010-12-21T07:21:00.001-08:00

Once again.. this is a preview of what is currently under discussion. It is NOT law, and should not be looked at as political, legal, or financial advice. This is only a brief look at some of the currently debated act, as it impacts our senior clientele.

Capital Gains and Dividends.
Many of our clients are reliant on their investments. Here is what is under contemplation regarding Capital Gains and Dividends.

Under discussion it to temporarily extend the current capital gains and dividend rates. Currently capital gains and dividend rates for individuals below the 25% bracket is equal to zero percent. For those in the 25% bracket and above, the capital gains and dividend rates are 15%. If this portion of the act does not happen, capital gains taxes become 10% and 20% respectively. Dividends will be subject to the ordinary income rates. This proposal extends the current capital gains and dividends rates for all taxpayers for an additional two years, through 2012.

Dependent Care Credit
Many of our clients have adult dependent children, or are themselves dependents of their children. The impact of the dependent care credit is of a direct concern to our elder and disabled clients. Under discussion is to (temporarily) extend the expanded dependent care credit. The dependent care credit allows a taxpayer a credit for an applicable percentage of child care expenses for children under 13 and disabled dependents. The current eligible expenses are $3,000 for one dependent, and $6,000 for two or more dependents. These are proposed to be extended through 2012. If the credit falls back to previous rates, it will be only $2,400 for one dependent and $4,800 for two or more dependents.

Your friends at…

Cohen & Oalican, LLP

Boston ElderLaw Attorneys
Raynham ElderLaw Attorneys
Andover ElderLaw Attorneys

Preview of the Proposed New Tax Relief Act of 2010 - Part 1

2010-12-14T08:21:00.001-08:00

There’s a lot of talk about the New Tax Relief Act of 2010.

At the time of this writing, it isn’t law, and with our current political logjam, there is likely to be a fair bit of change between now and then.

We thought, however, that our clients would like to hear some of the elements that are of most direct interest to their welfare, and to the health of their estate.

Reductions in Individual Income Tax Rates

Under contemplation is to temporarily extend the 10% bracket. The 10% individual income tax bracket expires at the end of 2010, and this impacts a great deal of our elder law clients. If nothing happens, the lowest tax rate will be 15%. This proposal extends the 10% individual income tax bracket for an additional two years, through 2012.

Part 2 will look at the proposed changes to Capital Gains and Dividends as well as The Dependant Care Credit.

Your friends at…

Cohen & Oalican, LLP

Boston ElderLaw Attorneys
Raynham ElderLaw Attorneys
Andover ElderLaw Attorneys

Scams and Our Elderly Clients

2010-11-29T17:14:00.001-08:00

Scams and Our Elderly Clients

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Scams and our elderly clients

2010-11-27T12:22:00.001-08:00

• Unlicensed contractors offering home repairs: "Hey, we just finished a job for the smiths two streets over, and there's leftover tile, would you like a great deal on....." If it sounds too good to be true, it probably is. Beware of home repair scams. Look out for transient work crews, strangers claiming to have extra material, free inspections in your home.. All of these should be red flags. You should look to licensed bonded and insured professionals. It may feel more expensive at the outset than these street contractors that show up.. but nothing is more expensive than a botched job, or worse, paying and never seeing your money or the work again. Shop around for a certified contractor insist on a detailed contract on the work to be done, estimated cost and timetable.

• The state of Massachusetts Executive Office of Elder Affairs should be notified of any scam, or scam attempt by calling 1-800-243-4636.

If you have been victimized, keeping quiet will not help the next victim in line. Just last month (October 20/2010) in Ipswitch an elderly citizen was approached by someone saying that they were the recipient of funds from the federal government, and asked to provide personal information in order to claim his windfall. The man intelligently informed local police, and the scammer was investigated and arrested. We applaud this anonymous individual. Our elders cannot be a doormat waiting for the next scam artist to come knocking.

If you are subjected to a scam, contact local authorities, and your elder law attorney.

At Cohen & Olican we take pride in protecting our clients.

Scams and our elderly clients–Fake Charities

2010-11-16T08:35:00.000-08:00

Fake Charities:

Scam artists create fake charities, often sounding like a real charity... they can spend a few dollars at a local copy store to dummy up credible looking ID, and they go on the prowl. These ruthless con men (and women) not only steal from the vulnerable, but they also make it harder and harder for legitimate charities to do the worthy work that they are chartered to do. We recommend that you make a conscious decision and a real plan for your charitable giving and philanthropy. Check out the organizations that you intend to support, and support them for the good works that they do. Do not be moved by the compelling story of a young woman knocking on your doorstep. Legitimate charities are registered with the state of Massachusetts. Here's a website to go to to validate whether or not a charity is registered with the state.

At Cohen and Olican we take pride in protecting our clients.

Scams and our elderly clients: Some common swindles–ID Theft

2010-11-15T07:20:00.000-08:00

ID theft: With the growing of the internet and all the different ways con artists work to get ahold of your private information, you must be incredibly careful with Identity theft. Place outgoing mail in a secure collection box and remove incoming mail from your mailbox promptly. Get a shredder.. nothing that is in your trash should be considered safe. Any personal information should be shredded before it is trashed. Question any website that asks you for your passwords or bank account numbers. Websites can be built to look like they are your real bank website - but in truth - they are there to take your information. If it doesn't feel right..ask the question.. has my bank ever before asked me to go to a website just to confirm my password... We assure you - they haven't. If in doubt.. call your bank, or whomever it is that is asking for your information. To cut down on credit offers, call 888-567-8688 or go to http://www.optoutprescreen.com to opt out of mail credit offers. You will need to provide your Social Security number so they can match your request with your file - this is a legitimate request for your private information.

At Cohen Olican we take pride in protecting our clients.

Scams and our elderly clients.

2010-11-11T07:15:00.001-08:00

Our elder law firm, Cohen & Olican LLP, works hard to protect the rights and assets of our elderly and handicapped clients. When we champion your rights, it is totally upsetting to us to see our clients preyed on by unscrupulous con artists.

So, in this article, we are going to do our best to alert you to some of the more common scams, and how to protect yourself. Of course, should you fall victim to one of these scam artist, turning to professional law enforcement, and your elder law attorney is far more important than protecting yourself from embarrassment. Acting against these scam artists is the only way to protect the next victim.

You've hear the adage "If it sounds to good to be true......" Well, frankly, more often than not, it is too good to be true. Yet still the vulnerable are constantly preyed on by con men and women, leaving financial devastation in their wake.

Tomorrow we will present some of the most common scams you should be on the look out for.

Boston Elderlaw Attorneys Present:: Sharing of Data Leads to Progress on Alzheimer's Disease

2010-10-10T09:59:00.000-07:00

Sharing of Data Leads to Progress on Alzheimer’s Disease–Part 2

2010-09-30T12:41:00.000-07:00

The need was for all researchers and experts to come together to work and evolve a standard data set. But how was this possible? It would entail an incredible collaboration as no one company or researcher could manage to do this alone. The project would involve 800 subjects with varying degrees of memory impairment; some normal, some with a little impairment, some with Alzheimer’s and all had to be tested for the biomarkers and then followed up for several years to judge whether the markers heralded the progression of the degenerative disease. It did seem an impossible project and one that was way beyond anybody’s implementation.

But in the car, Dr. Potter had an intuitive flash when he felt that this project due to its seriousness of objective and aim of ending untold suffering may well propel people to work together in a way that had never been attempted before. The concept was to make the National Institutes of Health the go-between or broker between the world of academia and the pharmaceutical industry. Very soon afterward the director of the National Institute on Aging Dr. Richard J. Hodes talked about this to the former scientific director at the National Institute of Mental Health, Dr. Steven M. Paul and the latter agreed to consult the drug companies to find ways of getting funding for the research. Soon it became clear that all these companies were ready to assist as the development of diagnostic methods was a gigantic task that no one could manage on their own. Collaboration was the need of the hour. Congress established the Foundation for the National Institutes of Health to find ways and means to garner private funds for the institutes. Dr. Steven M. Paul was appointed to the board of the foundation.

Ultimately, $ 41 million was given by the National Institute on Aging, $2.4 million was contributed by some other institutes, 2 non-profit associations and 20 organizations together managed $27 million and this became the initial seed money to get the project started and keep it going for the first 6 years. The National Institute of Aging advanced another $24 million last year and on the basis of further federal and private funding the foundation made plans for the project to continue for another 5 years.

In the beginning, the unique parameters of the project had many scientists worried as they wondered whether giving up ownership and sharing valuable data with all and sundry would result in anything positive at all. There could be misinterpretation, misuse and wrong information being disseminated that could do more harm than good. But despite the misgivings, all realized that there was no alternative to this collaborative endeavor. Even the drug companies, who were usually looked upon with suspicion, were roped in and everyone had to overcome this mental block, according to Dr. John Karlawash an Alzheimer’s researcher at the University of Pennsylvania.

Dr. Karlawash stresses the need to combine resources and work together. The need to find these valid biomarkers for Alzheimer’s was urgent and the entire process demanded such huge funding and massive research that it was impossible for any one company or academic institution to even think of embarking on the project. It had to be a collaborative exercise and now all concerned are making use of the data. The huge data set has been downloaded at least 3200 times and the data sets comprising images of brain scans have been downloaded almost a million times.

The positive outcome of the project has delighted Dr. Buckholtz who says that he is quite “pleasantly surprised” by the way it has turned out. No one was sure how this innovative concept of sharing everything in the public domain in a research project would evolve, but they were confident that ultimately there would be some good coming out of the hard work and combined research. That is how it has turned out to be and it has kindled new hope for the conquest of these diseases.

Could someone you love have Alzheimer’s? Do you have a long term plan to deal with the Medicaid issues surrounding this? Call Cohen & Oalican, LLP to draw up a plan.

Sharing of Data Leads to Progress on Alzheimer’s Disease - Part 1

2010-09-28T12:14:00.000-07:00

A project was initiated in the year 2003 when the National Institutes of Health, the Food and Drug Administration, the drug and medical-imaging industries, universities and nonprofit groups joined hands in a joint endeavor to find the biomarkers that reveal the progress and evolution of Alzheimer’s disease in the human brain. It was a unique project in the annals of medical research and it is yielding results now, which are evident in a deluge of research papers on the subject.

Early diagnosis of Alzheimer’s is being done with PET scans and spinal fluid analysis and more than 100 drug studies are in progress to find formulations that might slow down or even cure the disease. This remarkable collaborative effort is showing the way for more such projects and a similar one has begun for Parkinson’s disease. The Michael J. Fox Foundation has sponsored a $40 million study to find the biological markers for Parkinson’s disease that will enlist 600 subjects in Europe and the USA.

The project has generated great excitement among the research fraternity as the agreement to share all data and make all findings public was something unheard of in the scientific world. Anybody with a computer anywhere can access all the data and go through the findings of all the research studies on the subject. The objective was not just to raise funds, or do research but share all the facts and figures and everything going on in the project on a global scale. There would be no ownership or patent of the data or the research finding and everything would be in the public domain. Private pharmaceutical companies would of course benefit in the long run from the drug formulations or imaging tests that were being developed during the project.

Dr. John Q. Trojanowski, an Alzheimer’s researcher at the University of Pennsylvania is stunned by the amazing scope of the project. It is a project that is unique and path-breaking in scientific research, according to him. But it is the only way to do it, as unless we kept aside our egos and intellectual property issues, the task of finding the biomarkers for these diseases would be an impossible one, he says. It does not mean that a person having the biomarkers would definitely get the disease, but that is also part of the project. The study aims to find those biomarkers that herald the onset of the degenerative disease.

The Alzheimer ’s disease Neuro-imaging Initiative or ADNI came about during a normal conversation about 10 years ago. Neil S. Buckholtz, chief of the Dementias of Aging Branch at the National Institute on Aging was being driven to the airport in Indianapolis by Dr. William Potter who was himself a neuroscientist at Eli Lilly. Dr. Potter was seriously thinking about the ways to hasten the progress of the drug research on Alzheimer’s. He wanted to come out of the typical drug development syndrome of the 19^th century, where a drug was administered and then everyone waited around for it to work. He felt that there must be some other method, where one could view the brain as Alzheimer’s developed and then formulate drugs to halt that development. There were efforts to locate biomarkers, but there was not much progress as different scientists in many different parts of the world were doing their own studies in their universities and with their own patients. They were obviously coming up with different results due to this.

Could someone you love have Alzheimer’s? Do you have a long term plan to deal with the Medicaid issues surrounding this? Call Cohen & Oalican, LLP to draw up a plan.

New pathways to parkinson’s and alzheimer’s diseases

2010-09-27T11:40:00.001-07:00

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New pathways to parkinson’s and alzheimer’s diseases

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New Pathways to Parkinson's and Alzheimer's Diseases.wmv

2010-09-22T08:40:00.000-07:00

New Pathways to Parkinson’s and Alzheimer’s Diseases

2010-09-20T09:32:00.001-07:00

Cohen & Oalican, LLP share recent Alzheimer's research.

Although Alzheimer's disease, Parkinson's disease and Huntington's disease have different genetic causes and pathways, all these ailments have one thing in common. All of them cause untimely death of the brain cells and the reason that this happens has been a dilemma to the treatment of these fatal diseases.

A recent study by a group of doctors and others at the Sanford-Burnham Medical Research Institute that was published in the July 30 issue of the medical journal Molecular Cell, throws some light on this brain cell death in patients of these diseases. The sudden and untimely transfer of a gaseous molecule called NO or nitric oxide from one cell protein to another could be the answer. Earlier research had revealed that NO and other molecules were responsible for nerve cell death or survival, but in this case, NO was seen to actually move from one protein to another through new molecular channels, triggering cellular suicide.

This was explained by the senior author of the research study group and the director of the Del E. Web Center for Neuroscience, Aging and Stem Cell Research at Sanford-Burnham, Stuart A. Lipton, M.D., Ph.D. Since this molecular evidence for the untimely cell death in Parkinson’s, Alzheimer's, and Huntington's diseases has been discovered, it would be possible now to utilize this new breakthrough to diagnose, treat and hopefully prevent these illnesses in the near future. As a Harvard-educated neurologist who runs his own clinical practice, Dr. Lipton is familiar with these fatal diseases as he observes his patients.

This research study has revealed that NO molecules relocate from the caspases to the XIAP proteins; the former are proteins that usually trigger cell death while the latter inhibit it. The caspases protein throws the NO molecule away like a “hot potato” to the XIAP protein to avoid the imminent cell death and this process happens through a chemical reaction called transnitrosylation. This action brings about a dual distress for the brain cells, as these cells are programmed to self-destruct when caspases do not have NO on them or XIAP have the molecule attached to them. Either way then it is death for the brain cells, as both these fatal actions happen simultaneously. In the study, it was shown that persons with neurodegenerative diseases had the NO molecule attached to the XIAP protein more frequently than those with normal brains. This reinforced the theory that this change in protein structure brings about cell degeneration.

The research group used a new arrangement of the Nernst equation to understand and analyze whether the caspases or the XIAP protein is more likely to end up with the NO molecule. The Nernst equation is taught in every chemistry class and is a mathematical equation that was found in the 19^th century. This possible prediction of the NO attachment to the brain cell proteins may ultimately help doctors to make earlier diagnosis of these neurodegenerative ailments, thereby kindling hope for treatment and cure. Cerebrospinal fluid and brain tissue from patients suffering from Parkinson's and Alzheimer’s is being studied and analyzed to find out whether the NO-attached proteins could be utilized as biomarkers to understand the progress and evolution of these diseases.

In ongoing research based on these findings, to formulate treatment and therapy to treat these neurodegenerative ailments, Dr. Lipton and his team are using robotic technology in Sanford-Burnham's Conrad Prebys Center for Chemical Genomics. Chemicals are being screened in their thousands to discover drugs that may stop the movement of the NO molecule from one protein to another, which may soon prevent brain cell death.

Do you have a plan if nursing home care is needed for yourself or your spouse? Will your home be protected?

Call Cohen & Oalican, LLP, they will help you to protect your home and all of you savings so you can focus on your loved one.

Cohen & Oalican : MEDCottage

2010-09-16T08:54:00.000-07:00

Cohen & Oalican, LLP discuss the medcottage

2010-09-14T11:09:00.001-07:00

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Cohen & Oalican, LLP introduce the medcottage

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MEDCottage or Granny Pod–Part 2

2010-09-10T04:51:00.000-07:00

The actual name for the “granny pod” is MEDCottage and it is a type of mobile residential unit that can be rented on a monthly basis. It can be parked in your backyard, you can connect your water and electricity to the unit and it transforms into an independent room for your elderly relatives. This innovative concept is becoming quite popular all over the country, especially in the state of Virginia where the zoning restrictions have been relaxed for these hi-tech homes by the government, which are expected to be available next year.

The MEDCottage has vinyl siding on the exterior and French doors with a white trim around them, while the interiors are fully equipped with a comfortable suite of rooms, with a kitchen and toilet. In short, the MEDCottage is a complete home in itself with all amenities needed to live a safe, comfortable life and ideal for the elderly.

What makes the MEDCottage even more suitable for the elderly is that inside the unit there is state-of-the-art health monitoring equipment and a lift to take an incapacitated person from the bedroom to the bathroom. There is also a camera installed just a foot above the floor that is adequate to view the person’s feet, so if he/she fell down it would immediately be seen. It has been estimated that falls in the home are one of the primary reasons elderly people have to be taken to hospitals and nursing homes, so having this “Feet Sweep” camera would be a big help in the timely assistance in case of such accidents. In addition to these useful conveniences, the MEDCottage has lighting along the floors that would help the elderly in easy movement around the unit. There are monitoring systems that offer regular updates on the medical status of the occupant, like heart rate and temperature and also provide information about medicine intake and other details.

The thought of relegating your older relative in a separate unit in the backyard may not sit easy with most people, but Rev. Dupin says that it is in line with the independent nature of most Americans. The space of the MEDCottage with the family and yet apart is symbolic of American self-reliance and independence. It is not that we can declare loudly that we do not want our older family members in our home, but neither would they wish to live with us. The MEDCottage is an acceptable alternative where the elderly are near their family but are not stepping on anyone’s feet in the process. It is a wonderful way for the older generation to remain part of the family, enjoy the company of their grandchildren and feel safe and content, without being any sort of a burden on others.

Rev. Dupin does not think that his parents would be living in a “granny pod” but certainly visualizes a future where he might be living in the backyard of one of his children.

Call one of elderlaw attorneys at Cohen & Oalican, LLP Boston, Andover and Raynham to see if this fits into your long term care plan.

MEDCottage or Granny Pod–Part 1

2010-09-07T08:38:00.001-07:00

MEDCottage

One of the things that the elderly hate the most and find really upsetting is to be moved from their familiar surroundings to a hospital or nursing home. The clinical, coldblooded ambience of a medical treatment center possibly makes the older lot a bit nervous and also tentative about their future.

Priests attending to older people have commented on this feeling and also opined that it appears that closeness to family members and access to their loved ones are most important issues. There was one lady in particular about whom Rev. Kenneth Dupin had talked about when discussing this aspect of caring for senior citizens. Katie was a happy old lady living in her own home, filled with mementos and artifacts from her past and she loved to talk of the days gone by. Rev. Dupin enjoyed listening to her anecdotes when he visited her, but the entire scenario changed when Katie was shifted to a nursing home some time afterwards.

Katie’s entire demeanor and happy attitude had just disappeared, which was noticed by Rev. Dupin when he went to see her at the nursing home. She begged and pleaded to be taken back home with tears running down her cheeks. She did not get the chance to go back to her beloved home, as she passed away in the nursing home, but the entire episode had a profound effect on Rev. Dupin. He was extremely moved by Katie’s attachment to her home and her deep melancholy at being moved to a nursing home, away from her loved ones.

In a talk with Audie Cornish of the National Public Radio (NPR) he said that Katie and her emotional outpourings had left him thinking about the entire subject of elderly people and their happiness in their last days. He was seriously wondering whether there was some way whereby older people could be kept closer to their families and out of places like hospitals and nursing homes. His concern is now being addressed as a new concept called “granny pods” that is gradually becoming an alternative for the housing of the elderly.

In Part 2 Cohen & Oalican, LLP talk more about the concept of “granny pods” or MEDCottages. Call our attorneys to see if this is an option for you and if Medicaid covers it.

How to Protect Your Home if You Are Admitted to a Nursing Home Part 2 & ...

2010-09-01T10:10:00.000-07:00

How to Protect Your Home if You Are Admitted to a Nursing Home - Part 3

2010-08-30T07:11:00.000-07:00

Medicaid Lien

There is also the distinct possibility of Medicaid putting a lien on your home to compensate for the expenditure on your treatment. If you sell your home while still living, the lien would have to be satisfied by reimbursing the state for the amount spent on your medical care. The only cases where you can claim exemption from this rule is when a spouse, or a minor, disabled or blind child, or a sibling with equity share in the property, is living in your home.

Recovery of Estate

As stated earlier, only if a spouse, a minor, blind, or disabled child, or a sibling with a share in the property inhabit the house, can you be exempted from the state claiming it as recompense for your Medicaid expenses of your nursing home treatment. If the spouse of dependent family member move out or dies, the state can again try to claim the property.

There are some situations however, when the value of a home or property can be protected against recovery by Medicaid. These are:

• If you or your spouse owned the home as tenants by the entirety.
• If the house is in the name of your spouse and you have given up your interest in it.
• If the house is in the name of an irrevocable trust.
• If any family member is eligible as a ‘care-taker child’.’ This is applicable when a daughter/son looked after you prior to your admittance to a nursing home and has no other place to live in. The person can then avoid a Medicaid claim on the house after your demise.

It is advisable to have a detailed discussion with an attorney regarding this ‘care-taker child exception’ and whether it can be applicable for any family member in your case. Considering the many legalities and other policy matters involved, the attorney can guide and help you to protect and retain your home and property, against all claims by the state and Medicaid.

For further information visit Cohen & Oalican,LLP Boston Elder Law and Estate Planning Attorneys, Also serving Andover and Raynham Massachusetts

How to Protect Your Home if You Are Admitted to a Nursing Home - Part 2

2010-08-24T07:30:00.000-07:00

Part 2

Transfer of your home

The legal transfer on ownership of your home to your children or any other family member may incur a Medicaid penalty, which would affect your eligibility for Medicaid for a certain period of time. It is best to talk to an attorney to find out all the legalities regarding your wish to transfer your property ownership to someone else, before you do it.

There is no penalty involved if you transfer ownership of your home, to the following:

1. To your spouse.

2. Any child of yours who is under 21 years of age, or visually or physically challenged.

3. Into a trust that is formulated for the sole benefit of a disabled person under 65 years of age. This could be for the Medicaid applicant as well, under certain circumstances.

4. A brother or sister of the owner, who has lived in the same home for one year prior to the admission of the applicant in the nursing home and also has an equity share in the property.

5. A child who has been a caregiver and is the offspring of the applicant, who has lived in the same house for a minimum period of 2 years. He/she must have taken care of the applicant during that period to avoid admission to a nursing home.

You may consider selling off your home at the current market value, but you may find yourself ineligible for any Medicaid benefits. You may end up utilizing the money from the sale of your home, for your medical treatment.

For advice with your Medicaid Planning, contact Cohen & Oalican,LLP Boston Elder Law and Estate Planning Attorneys, Also serving Andover and Raynham Massachusetts

How to protect your home if you are admitted to a nursing home part 1

2010-08-23T08:35:00.001-07:00

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How to Protect Your home if You Are Admitted to a Nursing Home - Part 1

2010-08-20T07:38:00.000-07:00

How to Protect Your Home if You Are Admitted to a Nursing Home

When you need to obtain Medicaid coverage for your future medical treatment and care, it is not necessary to sell your home. However, if the house is in your sole name, the state may claim your house legally after your demise. When you claim Medicaid to pay for medical treatment in a nursing home, it is possible that the state may try to recover the cost of the benefits provided, by placing a lien against your home. This is termed ‘estate recovery’ and the house you own may be the only item of considerable value left after your demise, given the terms and conditions of eligibility for Medicaid.

So there is a distinct possibility of the state filing a legal claim on your property and home after your demise. It is in your interest therefore, to consult an attorney to get complete information and find out how to protect your home, as soon as you need to be admitted to a nursing home for your medical treatment. Some states have implemented the Deficit Reduction Act of 2005, whereby the home is not looked upon as an asset for the terms of eligibility for Medicaid, if the equity value is less than $500,000. In some states, the equity value limit is $750,000. You can retain your home and property with no limit on the equity value, if your spouse or
any other dependent family members live there.

Cohen & Oalican,LLP Boston. Elder Law and Estate Planning Attorneys, Also serving Andover and Raynham Massachusetts

A Guidebook for Caregivers of Alzheimer’s Disease

2010-08-17T07:05:00.000-07:00

A Guidebook for Caregivers of Alzheimer’s Disease

There is a new online guidebook published by the National Institute on Aging, detailing the aspects of care-giving for those afflicted with Alzheimer’s disease. This is specifically for the people who are facing the difficult task of looking after family members or others, stricken with this incurable disease. The aspects of the guidebook that are worth mentioning are:

1. It is written in simple, clear language

2. It is exhaustive, giving a complete range of information, from full details of the medical condition and legal formalities to the various aspects of care-giving and what to do and what to avoid

3. It is free

You can read it online Read it online (P.D.F.) at Cohen & Oalican, LLP or for future reference (as it is very useful), you can order print copies from the website.

The Alzheimer’s Disease Education and Referral Center of the National Institute of Aging provides answers to all queries, sends different journals and other publications on the subject and helps with information on local medical and other support services. The Center also has detailed and up-to-date information on the clinical trials being undertaken for research, around the country. The Center is open from 8:30 am to 5:00 pm Eastern Time from Monday to Friday and the staff members are fluent in English and Spanish. There is a toll-free number too for the convenience of people who wish to contact them: 800-438-4380.

Cohen & Oalican, LLP

Boston Elder Law and Estate Planning Attorneys Also Serving Andover and Raynham Massachusetts

Alzheimer’s Disease and Dementia Care for Veterans - Part 3

2010-08-09T07:48:00.000-07:00

Alzheimer’s Disease and Dementia Care for Veterans -
US Department of Veteran Affairs -
Part 3

Question: My father was a veteran of World War II and my widowed mother is afflicted with Alzheimer’s disease. Is she entitled to any VA facilities or services?

Answer: Certain VA health services are available for spouses of veterans. The websites given below can be looked at for more detailed information on these programs.

1. 1-800-827-1000: You can get information on VA benefits that are not medical.

2. CHAMPVA and CHAMPVA for LIFE (CFL), These sites give information on the health services available for the spouses and other dependents of veterans.

3. TRICARE and TRICARE for Life (TFL): The site provides information on the health services available for retired military personnel, their families and surviving dependents.

4. This site has the complete list of VA Medical Center locations and the contact details.

5. State Veterans Home Program: Owned and managed by the various states of the country, the admission criteria are also decided by the individual states. Care and services provided may sometimes be chargeable. The State Veteran’s Home offers a range of services, including day care, domiciliary, nursing home care and others. Some of these Homes take in the spouses of veterans, but there is no funding given by the particular state or the VA for the spouses or other family members of veterans. Your mother therefore would have to pay for all the services provided at the State Veteran’s Home, while the admission application would have to be made to the state authority concerned.

6. This site has information on the Aid and Attendance Benefit

Call one of our Elder Law attorneys at the offices of Cohen & Oalican, LLP, and let us guide you through the government requirements and available programs.

Alzheimer’s Disease and Dementia Care for Veterans - Part 2 Application Procedures

2010-08-05T06:17:00.000-07:00

Alzheimer’s Disease and Dementia Care for Veterans -
US Department of Veteran Affairs

Part 2

Application Procedures

1. The person (veteran) must be enrolled for VA medical services. You can call 1-877-222-VETS (1-877-222-8387) toll-free or apply online by filling in the enrollment application form. You may also contact the enrollment coordinator at your nearest VA Medical Center or the VA Community-Based Outpatient Clinic.
2. At the VA facility, you can have a detailed discussion with the patient-care coordinator to understand and choose the suitable services that are available and appropriate for the medical condition of the veteran. The enrolled veteran’s priority status would matter in the payment for certain services. The services could be provided free of cost or may need some co-payment for some part of the services. The coordinator could help you with the different options available, offer you the specifics that you are looking for and also explain the co-payment terms and conditions. The prescription benefits are also part of the medical care provided by the facility. The veteran must go through a medical checkup by an authorized VA physician to obtain the medication from a VA pharmacy. The medication according to the prescription would be given as per the veteran’s priority group and income. There could be co-payment for this as well depending on the status of the veteran.

State Veterans Home Program:

The various states own and operate the Veteran Homes and establish their terms for admission and care. A variety of extended-care services, including adult day care, domiciliary and nursing home services are provided, though there may be charges for some of them.

The Department of Veteran Affairs pays a portion of the daily expenditure (per diem), which does not exceed 50% of what the state provides, for the veterans who are admitted to a State Veteran’s Home. The admission for application to the Home is made directly to the state concerned and the veteran need not be enrolled with the VA health care system to do this. He should however be eligible to get the VA per diem payments. The State Department of Veterans Affairs should be contacted for all the details on the Veteran’s Home services, including the procedures for admission and residency. The department would also be able to provide guidelines for the specific services provided for Alzheimer’s disease and dementia. The National Association of State Veterans Homes have a list of the State Veteran’s Homes, which is useful for knowing the locations of the different centers.

To discuss your Medicare and Long Term Care planning needs call Cohen & Oalican, LLP elder law attorneys in Boston, Andover and Raynham.

Alzheimer’s Disease and Dementia Care for Veterans : Part 1

2010-08-03T07:59:00.000-07:00

Alzheimer’s Disease and Dementia Care for Veterans -
US Department of Veteran Affairs

There are misconceptions about the care provided for veterans afflicted with Alzheimer’s or Dementia. There are some usual queries that people usually ask us about this assistance.

Question: My father has been diagnosed recently with Alzheimer’s disease and he was a veteran of World War II. What kind of care and support does the Department of Veteran Affairs (VA) provide for people with dementia and what is the method of application for such services?

Services offered by VA: Veterans who qualify and are eligible for care, can avail of the range of services offered by the VA, which includes in-house care, community, outpatient care, inpatient and extended-care services.

The entire ambit of VA services includes the following:

• Primary Care/Home-based: This would be focused on support for the homemaker and home-health aide, with respite being an important area. It would also include adult day health care, visit to the outpatient clinic and related services.

• Extended/Inpatient care: Veterans with dementia are entitled to general care in the VA outpatient and inpatient facilities. Along with this, some care infrastructure has been developed for specific dementia services, which includes Dementia Clinics for outpatient treatment and extended care in a Dementia Unit for inpatient services.

There are no special eligibility conditions for veterans with dementia. The normal procedures for eligibility and applications must be followed.

To discuss your Medicaid and long term care planning needs call Cohen & Oalican, LLP elder law attorneys in Boston, Andover and Raynham.

Cohen & Oalican answer: Can enrollment in Medicare Part B be delayed without having to pay a higher premium?

2010-07-26T11:17:00.000-07:00

Can enrollment in Medicare Part B be delayed without having to pay a higher premium?

Enrollment in Medicare Part B can be delayed without paying a higher premium under certain circumstances. If you or your spouse was employed and had group health plan coverage through the union or your respective employer and therefore did not enroll in Medicare Part B when you were first eligible, you can sign up for it during a Special Enrollment Period. You can sign up for Medicare Part B:

• While you still have health plan coverage provided by your employer or group plan coverage offered by the union, during your period of employment or that of your spouse

• In the eight-month period after the health plan coverage given by your employer or union ends or your employment ends, whichever happens first

The rules for Special Enrollment in Medicare Part B are also applicable if you have any disability and are working, or if you have health plan coverage provided by an employed member of your family. If you enroll for Medicare Plan B during the Special Enrollment Period, the effective date for commencement of coverage differs depending on when you enroll:

1. If you are covered by the group health plan or you enroll in Medicare Part B in the first month after the group health plan coverage ends, the coverage provided by Medicare Part B would begin on the first day of the month of enrollment. If you wish to postpone the coverage, you can designate the starting date to the first day of any of the three months immediately following the enrollment.

2. If you enroll any time during the remaining seven months of the Special Enrollment Period, your coverage under the Medicare Part B will begin the month following your enrollment.
If you are unable to enroll in the Medicare Part B during your Special Enrollment Period, you cannot enroll again until the next General Enrollment Period, which is scheduled on January 1st through March 31st of each year. If you enroll during this period, you may have to make a higher premium payment for the Medicare Part B health coverage, since you had the opportunity to enroll earlier and chose not to.

For more information on enrollment, please contact Social Security Administration at 1-800-772-1213.

Make sure you will be protected, call Cohen & Oalican, LLP to discuss your Medicaid Plan.

Medicare coverage for Nursing Treatment, Long-Term Treatment and Expert Nursing Care

2010-07-19T09:10:00.000-07:00

What is the amount of coverage that the current Medicare plans offer for nursing home treatment, long-term treatment and expert nursing care?

Normally, Medicare does not offer any help for long-term treatment and care. Treatment on a long-term basis is referred to as “custodial care,” as it can be carried out in various forms and locations. Long-term treatment and care can be rendered at a nursing home, another location in the community and even at home.

Personalized care, which cannot be categorized as skilled care, includes supportive service for daily activities like bathing, eating and other general support which does not fall under the category of skilled medical treatment. Therefore, Medicare will not pay for this type of care.

Medicare offers monetary help only for treatment, classified as vital and proficient medical or nursing care. If you are ill and need constant care under the eye of trained medical personnel who will have the responsibility for your remedial care, you would fall into this category.

Trained medical personnel like doctors and nurses managing your treatment differ from the long-term care given at home or elsewhere by your family members or care-givers. Medicare will only pay for treatment given at a medical facility by qualified and experienced staff.

To make sure you will be protected, call Cohen & Oalican, LLP to discuss your long-term care and Medicaid Plan.

Cohen & Oalican : New Health Care Law and Medicare

2010-07-11T08:30:00.000-07:00

Cohen & Oalican answer:

Will the new health care law have any influence on my current benefits and coverage from Medicare?

You may rest assured that there will be no adverse impact on your current Medicare coverage due to the new health care law. On the contrary, this new law signed by the President ensures increased access to health insurance and provides considerable improvements to current policy, thereby providing enhanced protection for you and your family through Medicare coverage plans.

While you may keep your current plan intact, the President’s new law improves Medicare coverage exponentially. For example, the new law ensures the gap in prescription drug coverage (otherwise known as the “donut hole”) will close gradually by 2020. Each year, Medicare recipients will be offered new savings under the law. In 2010, a one-time rebate of $250 will be offer to Medicare recipients This amount will be given to those Medicare recipients who are not already receiving extra help to pay for prescribed medicines. You do not have to submit any personal information to obtain this check like bank account numbers, Social Security details or even Medicare coverage details. If anybody calls you regarding this $250 check and asks for any information, we advise you not divulge any personal facts.

The new health care law would also help reduce the costs of preventive services from the year 2011 moving forward.

If you have further questions please contact Cohen & Oalican LLP, elder law attorneys in Boston, Andover and Raynham.

Cohen & Oalican : New Health Care Law and Presciption Drugs

2010-07-01T11:44:00.000-07:00

Cohen & Oalican answer:

Does the new health care law have any provisions to deal with the coverage gap in prescription drugs?

Medicare’s drug coverage was inadequate for approximately 8 million people in 2007. Most Medicare plans have a prescription drug coverage gap or “donut hole” , which forces you seniors to pay out of pocket for your prescription medicines to a certain limit before the plan will begin to cover medication costs. Coinsurance, private payments and annual deductible amounts are all taken into account for each plan’s limit within the coverage gap, however, even these high costs do not always translate to cost savings for many Medicare recipients.

2010: Coverage Gap Rebate of $250

In March, the President signed a new health care law, which offers discounts and savings for seniors during the coverage gap period. The rebate is designed to assist Medicare recipients with prescription drug costs while in the donut hole.

Here’s how it works—Beginning in 2010, Medicare will send you a check for $250 as a one-time payment, three months after the end of the quarterly period when you reached your prescription drug coverage limit. It is important to note that the coverage gap rebate only applies to Medicare recipients who are eligible for the drug coverage and are not currently receiving assistance from another source. Seniors should also be advised that no personal information has to be provided to receive the rebate check, like the number of your bank account, your Social Security number or your Medicare information. If you are contacted by regarding the rebate payment who asks for personal information, please do not divulge any
essential or pertinent facts about yourself. For more information about the coverage gap rebate check, call the designated location dealing with your particular plan.

If you have further questions please contact Cohen & Oalican LLP, elder law attorneys in Boston, Andover and Raynham.

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 7 Conclusion

2010-06-09T10:32:00.000-07:00

Cohen & Oalican, LLP : PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 7 of 7

Conclusion

Our clients worked extremely hard their entire lives saving for their retirement and to pass along a little something for their children. Often, their home is their “nest egg” representing a life time of hard work and savings. The best way to protect your home is to plan ahead. Given the State’s tightening budget, it has become even more difficult to obtain Medicaid eligibility and protect your home. 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.

Consult with one of the attorneys at the offices of Cohen & Oalican, LLP for more information on Medicaid and Estate Planning.

This series has been brought to you by Cohen & Oalican LLP , Elder Law Attorneys Boston, Raynham, Andover

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 6 Bring on The Medicaid Lien

2010-06-07T09:46:00.000-07:00

Cohen & Oalican, LLP discuss: PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 6 of 7

Bring on the Medicaid Lien

In certain situations, it may make more sense to apply for Medicaid and let the Medicaid lien accrue against the house. Let’s consider a client who has $100,000 and a house worth $400,000. They spend down their funds in a year or so after entering a nursing home. At that point they have two choices. First, they could sell the house and pay privately for their care until the funds are spent down. If the nursing home costs $10,000 a month this will take about three years or so. Another option would be to apply for Medicaid once the funds are spent down. Remember, Medicaid will not count your house as an asset in determining eligibility if you indicate on your application that you intend to return home. Once the application is accepted, Medicaid will place a lien against the house and when the individual dies, the family will have to pay back Medicaid for benefits provided during that person’s life. You may be wondering where is the benefit in this strategy? The benefit lies in the fact that when you repay Medicaid you are paying them based on what Medicaid pays the nursing home which is typically between 60 and 60 percent of the private pay rate. In other words, if you let the lien accrue you would pay back Medicaid at a rate of $7,000 a month compared with the $10,000 a month that you would have paid privately if you sold the house. Of course, if you receive Medicaid benefits over many years, the lien may exceed the value of the house and there would be no benefit to the family. (It’s important to note that regardless of the size of the lien, Medicaid is only entitled to the value of the house.) One other drawback to this strategy is that the Medicaid applicant cannot use their own income to pay for the house expenses (taxes and insurance). The only way to cover this cost is either to rent the house or for other family members to pay the bills.

Consult with one of the attorneys at the offices of Cohen & Oalican, LLP for more information on Medicaid.

This has been Part 6 in a series of 7, brought to you by Cohen & Oalican LLP , Elder Law Attorneys Boston, Raynham, Andover

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 5 Life Estates

2010-06-03T08:23:00.000-07:00

Cohen & Oalican, LLP discuss: PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 5 of 7

Life Estates

Another option to protect your house is with a Life Estate deed. With a Life Estate deed a client is typically giving away their house to their children but they are retaining certain rights of ownership over the property. Most commonly, clients keep the right to live in the house and the rights to rental income. They also still have an obligation to pay the house expenses. However, the house cannot be sold or mortgaged without everyone’s consent. The parents retained interest in the house is called a Life Estate. A child’s right to receive the property at death is called a remainder interest. Because a Life Estate deed passes automatically at death outside of probate, a Life Estate deed avoids Medicaid’s claim at death. One drawback to a Life Estate deed is that the house will only be protected as long as it is not sold until after the death of the Medicaid recipient. If the house is sold during the person’s life, a portion (this value is based on Medicaid’s actuarial tables) of the proceeds will pass to the Medicaid recipient and the funds will be taken by Medicaid. On the other hand, if the house is held in an irrevocable trust, all of the proceeds from the sale stay in the trust and remain protected regardless of when the house is sold.

Consult with one of the attorneys at the offices of Cohen & Oalican, LLP for Mediciad planning.

This has been Part 5 in a series of 7, brought to you by Cohen & Oalican LLP , Elder Law Attorneys Boston, Raynham, Andover

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 4

2010-05-31T17:59:00.000-07:00

Cohen & Oalican, LLP discuss: PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 4 of 7

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE

Irrevocable Trusts

One strategy our office uses to protect homes from the Medicaid lien is an irrevocable trust. In order for a trust to be protected from Medicaid it must meet three requirements. First, it has to be irrevocable. This means that neither the Medicaid applicant, nor their spouse, can be able to revoke or change the trust in any way. Second, neither the Medicaid applicant nor their spouse can serve as trustee. Keep in mind that when Medicaid reviews trusts they are looking to see whether the applicant or their spouse, retained too much control over the trust assets. If you have too much power over a trust, your home will not be protected. Lastly, the trust principal cannot be paid out to the Medicaid applicant or their spouse. The asset that is held in the trust is called the trust principal. The interest, dividends or rent earned on the trust is called the trust income. As an example, let’s assume you have your home deeded in an irrevocable trust and the house was then sold for $250,000. The trust could pay the interest earned on the funds to you but it cannot under any circumstances pay the $250,000 to you.

Consult with one of the attorneys at the offices of Cohen & Oalican, LLP to create your personalized Medicaid plan.

This has been Part 4 in a series of 7, brought to you by Cohen & Oalican LLP , Elder Law Attorneys Boston, Raynham, Andover

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 3

2010-05-27T10:52:00.000-07:00

Cohen & Oalican, LLP discuss: PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 3 of 7

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 and have spent down your assets.

The easiest way to explain the transfer rules is by way of an example. Let’s assume Mrs. Smith transfers her condo worth $320,000 to her grandson on March 15, 2010. On April 15, 2011, Mrs. Smith suffers a stroke and is admitted to a nursing home. Assume she spends down her assets below $2,000 as of August 2011. Because she would be applying during the look-back period, Medicaid would impose thirty two (32) months of ineligibility ($320,000 ÷ $8,000 = 32 months). The transfer penalty would not start until August 1, 2011 and would end in April 2014.

Keep in mind, that the rules are different for married couples. If a husband is in a nursing home with a wife living in the community, Medicaid allows the husband to transfer their home to the healthy spouse, without imposing any ineligibility period. The house is then completely protected from the husband’s nursing home costs (even after the wife’s death.) Although, planning can be more complicated for a single person there are several options available to protect the house regardless of whether you are married or single.

Consult with one of the attorneys at the offices of Cohen & Oalican, LLP to create your personalized Medicaid plan.

This has been Part 3 in a series of 7, brought to you by Cohen & Oalican LLP, Elder Law Attorneys Boston, Raynham, Andover

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 2

2010-05-24T09:50:00.000-07:00

Cohen & Oalican, LLP discuss:

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE

Part 2 of 7

Noncountable does not mean Protected

A home with equity of less than $750,000 is considered a noncountable asset. Without proper planning, at death the State will have a lien against your house and Medicaid will seek reimbursement for benefits provided. On the other hand, there are steps you can take to avoid a Medicaid lien and protect your home, saving hundreds of thousands of dollars.

Although the risk of a Medicaid lien is very real, the good news is that Medicaid will not force you to sell your house if you enter a nursing home. As long as a Medicaid applicant indicates on their application that they intend to return home, Medicaid will not force the sale of the house. This is a subjective question and it does not matter whether there is any realistic chance that the person actually will be able to return home.

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. There are several strategies available which will protect the house from Medicaid but also protect your right to live in the house. However, before you consider transferring your house, you have to understand the Medicaid transfer rules.

Be sure to consult with one of the attorneys at the offices of Cohen Oalican, LLP to create your Medicaid plan

This has been Part 2 in a series of 7, brought to you by Cohen & Oalican LLP, Elder Law Attorneys Boston, Raynham, Andover

Protecting your house from the cost of nursing home care - Part 1

2010-05-21T14:22:00.000-07:00

Cohen & Oalican discuss Part 1 of 7

PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE

Introduction

For must of us, our home is our most valuable asset. “Value” refers both to how much money you would receive if you sold your house but perhaps more importantly, value describes the emotional attachments we hold for the place we live and raise our families. When we first meet with our clients we typically ask what they are most worried about. The overwhelming majority tell us that they want to protect their home. “I don’t want to lose my house, if I go to a nursing home” is an often repeated refrain.

There is a great deal of confusion regarding what will happen to your house if you enter a nursing home. Some people have the good fortune of being wealthy enough to pay privately for their care. Although when nursing homes typically cost $100,000 a year, most of us are not that lucky. Others had the foresight to buy long-term care insurance. However, most of our clients are not wealthy enough to pay for their care and they either cannot afford insurance, or are not qualified. The remaining choice is Medicaid.

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 your 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. Although Medicaid will consider your home to be a noncountable asset it is important to understand that does not mean your home is protected.

This has been Part 1 in a series of 7, brought to you by Cohen & Oalican LLP, Elder Law Attorneys Boston, Raynham, Andover

A Brave New World - The Affordable Care Act

2010-05-17T10:11:00.000-07:00

A BRAVE NEW WORLD: This week, President Obama signed into law the main part of the
contentious health care reform legislation. Although some parliamentary problems still need to
be resolved, the entire bill will likely become law prior to Congress’ scheduled recess at the end
of this month.

The president’s signature will put into effect the Affordable Care Act as amended by the Health
Care Reconciliation Act. The impending new law imposes responsibilities on both citizens and
employers. Here are some of the highlights:

Citizen Responsibilities:

Citizens and legal residents must have “qualifying health coverage”. Penalties will be imposed
on individuals without coverage and phased in over several years. The tax penalty is the greater
of $695 annually up to a maximum of three times that amount ($2,085) per family or 2.5% of
household income. Either way, the new law imposes hefty penalties on individuals who fail to
comply. However, persons with incomes falling below the federal tax filing threshold ($9,350
for singles and $18,700 for couples in 2009) and anyone whose lowest cost plan exceeds 8% of
that person’s income are exempt from penalties.

Employer Responsibilities:

Beginning in 2014, employers with more than 50 employees will be assessed a penalty depending on whether health plans are offered and whether certain employees receive premium tax credits. Penalties will not be assessed on employers with 50 or less employees. Employers with more than 200 employees must enroll employees in plans offered by the employer and opting out will not be option.

Private Insurance:

Within 90 days of the enactment of the new law, a temporary national “high-risk” pool will be
established to provide coverage to individuals with pre-existing medical conditions. Within six
months, all policies must provide dependent coverage for children through age 26.

Other Provisions:

The new law increases payments to physicians and Medicare payments to providers in certain
rural areas. Access to Medicaid and types of services will expand. Medicaid will now additional
preventive and long-term care services. Medicaid eligibility will also now cover low-income
nonelderly, non-pregnant individuals who are not otherwise eligible for Medicare. The new law
also contains additional provisions to attack fraud in the federal healthcare programs.

The Invoice:

The Congressional Budget Office estimates the cost of the mandatory coverage will be $940
billion over ten years. This expense will be financed through a combination of savings from
Medicare and Medicaid, new taxes and fees, which the CBO estimates will raise $32 billion over
those ten years. It also estimates the proposal will reduce the deficit by approximately $143
billion during that period.

Is the new law a step closer to forced socialism or does it reflect a nation’s collective decision to
expand the benefits of its “social compact”? Whatever one’s political stance, health care reform,
for better or worse, is a new pillar in the structure of our government.

Brought to you by Cohen & Oalican, LLP

Cohen & Oalican Answer: Can a Life Estate Still Protect Your House from Medicaid Part 2

2010-05-13T14:12:00.000-07:00

Part 2

The three year look back period was the most important reason to choose a Life Estate deed instead of an irrevocable trust to protect a client’s house. That benefit has been eliminated. Now clients and attorneys must consider the limitations of Life Estates in relation to irrevocable trusts. Most importantly, the Life Estate only works if the house is not sold until after the Medicaid recipient’s death. If the house is sold during the person’s life a portion (this value is based on Medicaid’s actuarial tables) of the proceeds will pass to the Medicaid recipient and the funds will be taken by Medicaid. If a house is held in an irrevocable trust, all of the proceeds from sale stay in the trust and remain protected regardless of when its sold. Although families understand the issue when they create the Life Estate, this becomes a pressing issue when the client moves into a nursing home and the house is empty. At that point, families must either rent the house (taking on the aggravation of being a landlord) or leave the house empty and use their own funds to pay for the property taxes and insurance. Both options are not ideal.

There are also capital gains tax issues to consider when choosing between a Life Estate deed and an irrevocable trust. The tax questions are somewhat up in the air right now and many attorneys believe that unless Congress changes the tax laws, Life Estate deeds will no longer give clients a step-up in the tax basis resulting in children paying capital gains taxes on all of the gain accrued during the parents’ lives.

That all being said, a Life Estate deed does have one important benefit. Its simple. A Life Estate
deed is easy to put in place. Its just a deed. Also, if everyone on the deed is agreeable, its also
easy to unwind; everyone just deeds the house back to the original owners. Reversing an irrevocable trust is much more complicated (and sometimes not possible) with an irrevocable trust.

Everyone wants to protect their home. The question remains what is the best strategy to do the job. In weighing your options, consider, how much control you want to keep, when the house will be sold, your need to use the house equity and tax issues. Life Estate deeds do still work. However, irrevocable trusts are often a better option to protect your home.

Contact Cohen & Oalican to discuss a medicaid plan that works for you.

Cohen & Oalican Answer: Can a Life Estate Still Protect Your House from Medicaid Part 1

2010-05-10T11:34:00.001-07:00

Part 1

Can a Life Estate Still Protect Your House from Medicaid?

We are often asked by clients and attorneys alike, whether Life Estates still “work”. In other words, can you protect your house from a Medicaid lien with a Life Estate deed. To cut to the chase, Life Estate deeds still work, but they may not be the best option. First, let’s clarify the question. If an individual applies for Medicaid (MassHealth in Massachusetts), their home is considered to be a noncountable asset. Although the regulations make it sound as if your home is a “protected” asset, that is far from true. As a noncountable asset, Medicaid cannot force you to sell your home to obtain eligibility (as long as the equity is less than $750,000). However, at the death of the Medicaid recipient, if the house is in that person’s sole name, the State will have a claim against the house for reimbursement for benefits provided during that person’s lifetime.

Frequently, our asset protection plans focus on a client’s home. Medicaid is only authorized to make a claim against an interest in a house that is in the sole name of the Medicaid recipient. These assets are referred to in legal jargon as “probate assets”. For example, a house that’s held as joint tenants passes to the survivor automatically by virtue of the deed and thus avoids probate and a Medicaid lien.

For many years a simple way to protect the house from Medicaid was by using a Life Estate deed. With a Life Estate deed a client is typically giving away their house to their children but they are retaining certain rights of ownership over the property. Most commonly, clients keep the right to live in the house and the rights to rental income. They also still have an obligation to pay the house expenses. However, the house cannot be sold or mortgaged without everyone’s consent. The parents retained interest in the house is called a Life Estate. The childrens’ rights to receive the property at death is called a remainder interest. Because a Life Estate deed passes automatically at death outside of probate, a Life Estate deed avoids Medicaid’s claim at death.

Prior to February, 2006 (when the federal Medicaid laws changed), Life Estates were quite common. At that time Medicaid imposed a three year “look-back” period for transfers to individuals and a five year “look-back for transfers to trusts. Consequently, clients and attorneys often preferred to use a Life Estate as part of their asset protection plan instead of an irrevocable trust because the house would be protected in only three years. That is no longer the case. Under current law, all transfers have a five year look-back period and in effect make the applicant and their spouse ineligible for five years.

Part 2 to follow

The experienced attorneys at Cohen & Oalican, LLP, can help you prepare for, and resolve, all of your medicaid planning and administration needs.

The Probate Process

2010-04-23T08:13:00.000-07:00

Attorneys at Cohen & Oalican, LLP serving Boston, Andover and Raynham discuss the Probate Process

1. What is the probate process?

Probate is the process supervised by the probate court by which a deceased person's property, known as the "estate," is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about a year. However, substantial distributions from the estate can be made in the interim.

2. What property is subject to the probate process?

The probate estate includes all property held in the decedent's name. Certain kinds of property, such as property owned jointly by the deceased and another person, life insurance, and property held in trust, are not part of the probate estate and are not subject to the probate process. For example jointly owned bank accounts pass automatically to the surviving joint owners upon the death of one of the owners without going through probate. The non-probate property, however, is part of the decedent's taxable estate (see below).

3. How is the probate process started?

First, a petition for probate of the will must be filed with the probate court, along with the original will and a certified copy of the death certificate. Notice must be mailed to all of the decedent's heirs at law (usually the surviving spouse, children and children of any deceased children), to those named as beneficiaries in the will, and, if a charity is involved or there are no heirs at law, to the Attorney General. Notice must be also published in a local newspaper. If no one objects by a deadline set by the court, the executor named in the will is appointed by the court.

4. What does the executor do?

The executor is responsible for collecting the probate property and for paying any debts of the estate. The executor must file with the probate court an itemized list, known as an "inventory," of the probate property, including the value of each item. The executor must file an estate tax return within nine months of the date of death. This is true even if no estate tax is owed, if the decedent owned real estate or the executor wants his or her final accounting (see below) allowed by the probate court. Creditors of the estate have one year to bring claims against the estate. Executors generally wait until this claim period has expired to complete distribution of the estate according to the terms of the will. As his or her final responsibility, the executor must file an accounting with the probate court showing the income and expenditures of the estate administration.

If you would like to pursue this further, contact an attorney at Cohen & Oalcian, LLP who is skilled and experienced in this area; practicing only elder law and disability law

Durable Power of Attorney and Health Care Proxy - FAQ Part 3

2010-04-19T09:06:00.000-07:00

12. When does a health care proxy take effect?

A health care proxy takes effect only when you require medical treatment and are unable to communicate your wishes concerning your treatment.

13. What if I become able to communicate my own decisions?

If you become able to express your wishes at any time, you will be listened to and the health care proxy will have no effect.

14. Who should have a copy of my health care proxy?

Your agent should have the original document. You should have a copy and your physician should have a copy with your medical records.

15. How can I get a health care proxy?

Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.

Durable Power of Attorney and Health Care Proxy - FAQ Part 2

2010-04-13T11:37:00.000-07:00

Durable Power of Attorney and Health Care Proxy - Part 2

6. What kind of records should I keep?

It is very important that you keep good records of your actions under the power of attorney. That is the best way to be able to answer any questions anyone may raise. The most important rule to keep in mind is not to commingle the funds you are managing with your own money. Keep the accounts separate. The easiest way to keep records is to run all funds through a checking account. The checks will act as receipts and the checkbook register as a running account.

7. Can I be compensated for my work as attorney-in-fact?

Yes, if the principal has agreed to pay you. In general, the attorney-in-fact is entitled to “reasonable” compensation for his or her services. However, in most cases, the attorney- in-fact is a family member and does not expect to be paid. If you would like to be paid, it is best that you discuss this with the principal, agree on a reasonable rate of payment, and out that agreement in writing. That is the only way to avoid misunderstanding in the future.

8. What is a health care proxy?

A health care proxy is a document executed by a competent person (the principal) giving another person (the agent) the authority to make health care decisions for you if you are unable to communicate such decisions yourself.

9. Why have a health care proxy?

In case you ever become incapacitated, it is important that someone has the legal authority to communicate your wishes concerning medical treatment. This is true especially if you were to disagree with family members about your treatment. By executing a health care proxy, you ensure that the direction that you have given your agent will be carried out in the event of such disagreement.

10. Who should I appoint as my agent?

Since your agent is going to have the authority to make medical decisions for you in the event you are unable to make such decisions yourself, it should be a family member or friend that you trust will follow your wishes. Before executing a health care proxy, you should talk to the person that you want to name as your agent about your wishes concerning medical decisions, especially life sustaining treatment.

11. Should I have a medical directive (Living Will)?

A medical directive provides your agent with instructions on what type of care you would like. If you wish, you may include a medical directive in your health care proxy. It may include specific instructions concerning the initiation or termination of life sustaining treatment or a more broad statement granting general authority for all medical decisions that are important to you.

Please contact Cohen & Oalican, LLP Boston, Andover and Raynham, for further information.

Durable Power of Attorney and Health Care Proxy - FAQ Part 1

2010-04-11T19:38:00.000-07:00

Durable Power of Attorney and Health Care Proxy

1. Does everyone need a power of attorney and health care proxy?

Absolutely.

These documents allow you to designate who will make decisions for you should you become incapacitated. Without them, it may be necessary for your family to become your legal guardian to the probate court which can be time consuming and expensive.

2. Could I be held liable for my actions as attorney-in-fact?

Yes, but only if you act with willful misconduct or gross negligence such as stealing money from your principal. If you do your best and keep your principal’s interest in mind as the basis of all your actions, you will not incur any liability.

3. When does the power of attorney take effect?

Unless the power of attorney is “springing”, it takes effect as soon as it is signed by the principal. A “springing” power of attorney takes effect only when the event described in the instrument itself takes place. Typically, this is the incapacity of the principal as certified by one or more physicians. Section III of your power of attorney indicates whether it is effective immediately or is springing. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used until he or she becomes incapacitated. You should discuss this with the principal so that you know his or her wishes.

4. What if there is more than one attorney-in-fact?

Depending on the wording of the power of attorney, you may or may not have to act together on all transactions. In most cases, when there are multiple attorneys-in-fact they are appointed “severally”, meaning that they can each act independently of one another. Nevertheless, it is important for them to communicate with one another to make certain that their actions are consistent.

5. Can I be fired?

Certainly. The principal may revoke the power of attorney at any time. All he or she needs to do is send you a letter to this effect. The appointment of a conservator or guardian does not immediately revoke the power of attorney. But the conservator or guardian, like the principal, has the power to revoke the power of attorney.

Contact an attorney at Cohen & Oalican, LLP who is skilled and experienced in this area.

Financing Nursing Home Care - FAQ

2010-04-07T07:02:00.000-07:00

1. Will Medicare pay for the cost of my care if I need nursing home care?

No.

Medicare will only pay for a maximum of 100 days in the skilled nursing facility if you meet certain requirements. You must have moved to the nursing home within 30 days of the hospital discharge and the hospital stay must have lasted at least three (3) days. Also, if you receive a skilled level of care, Medicare will pay completely for the first twenty (20) days. For days twenty-one (21) through 100, they will pay less a co-payment, which is set each year. In most situations, people receive less than the full 100 days of benefits. After that point, you either have to pay privately with your own funds or obtain Medicaid eligibility.

2. If my spouse requires Medicaid, will I lose all of my assets?

No.

Medicaid will allow a spouse living in the community to keep their home and a modest amount of the couple’s savings. However, Medicaid does cap the amount of assets the spouse in the community can keep regardless of whose name the assets were in when the couple first applied. For this reason, it is critically important for a couple to speak with an elder law attorney to ensure that the assets are protected.

3. Will my homestead declaration protect my house if my spouse or I need Medicaid benefits?

No.

A homestead declaration filed with the Registry of Deeds offers no protection in the Medicaid context.

4. If I give away my assets, will this make ineligible for five (5) years?

Perhaps.

With careful planning, it is possible to shorten the ineligibility period so that it is less than five (5) years. In addition, there are many exceptions to the Medicaid rules. Where there is no transfer penalty imposed by Medicaid, however, you need to work with a qualified elder law attorney to identify these planning opportunities.

For further information call one of our attorneys at Cohen & Oalican, LLP Boston, Andover or Raynham.

Cohen & Oalican discuss Choosing a Trustee

2010-04-02T17:15:00.000-07:00

CHOOSING A TRUSTEE

Few legal restrictions exist for trustee selection. While some states may limit the ability of individuals or corporations to act as trustee without being licensed or registered by a bank or other appropriate agency, few other restrictions exist. The most obvious choices, along with some of the benefits and disadvantages of each, are listed below (Robert B. Fleming, Choosing a
Trustee, Special Needs Trusts, Stetson College of Law, October 22, 1999):

1. Parents. Parents are good choices from an economic perspective, in that they usually don’t charge a fee, unlike a professional trustee. If the plaintiff is a minor, his parents will know his needs better than anyone else and will be able to plan for his future needs.

But whether particular parents are the best choice depends on a number of factors. While they are very familiar with the daily needs of the beneficiary, they may not be able to view the entire picture objectively. They frequently suffer conflicts of interest given that the decisions they must make as trustee could potentially have a large effect on the household and the
parent/trustee’s decision may be influenced by that knowledge. The parent also may not have the necessary investment experience needed to manage the trust.

2. Other family members. Non parent family members may be appropriate to serve as trustees. They may be better able to manage the business, tax and administrative concerns of the trust. Additionally, the likelihood of self dealing may be reduced. Family members are also economically advantageous, since they will likely charge less than a professional trustee. The reduced costs and security offered by a non parent family member make then an attractive choice as trustee.

3. Family friends. A professional individual, a trusted advisor or a close friend may serve as trustee. A close friend may be willing to serve as trustee for lower fees. Additionally, a close friend may be more accessible in emergency situations and more willing to take on the social worker aspects associated with the trust than would a professional trustee. However, before
agreeing to a family friend, the attorney should do her best to make sure that the friend has sufficient experience and is sufficiently reliable to fill this important role.

Part 2 will discuss some other choices...

This series brought to you by Boston Attorneys Cohen & Oalican,LLP, specializing in Guardianship and Conservatorship.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Supplemental Needs Trust - Questions Answered Part 2

2010-03-31T15:38:00.000-07:00

Are there restrictions on how the funds in the supplemental needs trust may be spent?

Yes and no. Yes, each public benefits program has restrictions that must be complied with in order not to jeopardize the beneficiary’s continued eligibility for public benefits.
For instance, the beneficiary would lose a dollar of SSI benefits for every dollar paid to him or her directly. In addition, payments by the trust for food, or housing for the beneficiary are considered "in kind" income and, again, the SSI benefit will be cut one dollar for every dollar of value of such "in kind" income. Some attorneys draft the trusts to limit the trustee's discretion to make such payments. Others do not limit the trustee's discretion, but instead counsel the trustee on how the trust funds may be spent, permitting more flexibility for unforeseen events or changes in circumstances in the future. The difference has to do with philosophy, the situation of the client, and the amount of money in the trust.

This series brought to you by Boston Attorneys Cohen & Oalican,LLP, specializing in Guardianship and Conservatorship.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Supplemental Needs Trust - Questions Answered Part 1

2010-03-29T07:15:00.000-07:00

SUPPLEMENTAL NEEDS TRUSTS

• What is a supplemental needs trust?

Supplemental needs trusts (also known as "special needs" trusts) are drafted so that the funds will not be considered to belong to the beneficiary in determining his or her eligibility for public benefits, such as Medicaid, Supplemental Security Income (SSI), or public housing. These trusts are designed not to provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public assistance funds, such as education, recreation, counseling, and medical attention beyond what is required simply to maintain an individual.

• Who can create a supplemental needs trust?

Very often supplemental needs trusts are created by a parent or other family member for a disabled child (even though the child may be an adult by the time the trust is created or funded). But the disabled individual can often create the trust himself or herself, depending on the program for which he or she seeks benefits. Medicaid is the most restrictive program in this regard, making it difficult for a beneficiary to create a trust for his or her own benefit. But even Medicaid has a "safe harbor" allowing for the creation of a supplemental needs trust with a beneficiary's own money if the trust meets certain requirements. This is sometimes called a "(d)(4)(A)" trust, referring the authorizing statute.

• Must the supplemental trust be irrevocable?

Yes, if it is created and funded by the person seeking public benefits himself or herself. No, if it is created and funded by someone else for the benefit of person receiving or seeking public benefits.

• Who can serve as trustee?

Choosing a trustee can be a difficult decision. The basic question to consider is whether to choose a professional trustee (such as a bank orhttp://www.cohenoalican.com/) or to use family. Family and friends can serve as trustee, but it is important to consider whether they have the experience and qualifications to serve in this role. The only person who cannot serve as trustee is the beneficiary themselves as this could disqualify them for public benefits.

When choosing a trustee, the factors to be considered include the cost of the available parties, relative investment experience, and flexibility and bureaucracy. Additionally, the trustee’s knowledge of public benefits programs and their regulations, as well as the beneficiary’s special needs and circumstances, should be considered. Often it can make sense to split the necessary trustee roles, with a bank or trust company handling investments and accounting, a family member or social worker taking care of planning for the beneficiary and disbursements, and an elder law attorney advising on public benefits issues. This can be done through multiple trustees, or a single trustee advised by individuals with the necessary knowledge and experience.

Cohen & Oalican provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Your Retirement - Part 3 - FAQ

2010-03-25T08:05:00.000-07:00

The Roth IRA

As if the rules described above were not complicated enough, as part of the Taxpayer Relief Act of 1997 Congress created two new planning vehicles: the Roth IRA, named after Senator William V. Roth (R-Del.) And the Education IRA. The Roth IRA, in effect, turns a traditional IRA on its head. While traditional IRAs permit the taxpayer to shelter pre-tax earnings but taxes them upon withdrawal, the Roth IRA is for after-tax savings, but both the original deposits and the earnings on them are not taxed on withdrawal. In addition, unlike traditional IRAs, Roth IRAs are available to taxpayers already contributing to a plan at work and to taxpayers who continue to work after age 70 ½. Finally, there is no minimum distribution requirement upon reaching that age.

Eligibility for the Roth IRA is limited to taxpayers with an adjusted gross income of under $110,000 if single and $160,000 if married (to be adjusted for inflation after 1998). The contribution is limited to $2,000 a year, with smaller limits for taxpayers with income of between $95,000 and $110,000 if single and between $150,000 and $160,000 if married and filing a joint return.

Financial experts calculate that for many Americans a Roth IRA will save more money than a traditional IRA. This is because the future value of the interest earned, which will never be taxed, often far outweighs the value of deferring taxes on the investment itself. Remember, traditional IRAs may be converted to Roth IRAs this year only! Consult with your financial advisor to help decide if a Roth IRA makes sense for you.

The Education IRA

Similar to the Roth IRA, the new education IRA permits individuals to save up to $500 annually with the earnings accumulating tax free. This may be of special interest to parents and grandparents who can contribute this amount annually to accounts owned by their children and grandchildren. Although $500 a year isn't a lot of money given the size of college tuition, over time it can make a difference. It is only available to taxpayers whose adjusted gross income is under $110,000 for single taxpayers and $160,000 for married taxpayers filing a joint return, with limits on contributions for taxpayers with income between $95,000 and $110,000 and between $150,000 and $160,000, respectively (all numbers to be adjusted for inflation after 1998). If the parents' income exceeds these levels, grandparents and others with lower taxable incomes can contribute to the accounts. But only $500 can be added per child per year.

Funds can only be added to the accounts while the child is under age 18 and must be withdrawn by the time he or she reaches age 30 or turned over into an account for another family member. An advantage with these accounts over most accounts created for children is that the funds do not have to be turned over to the child at age 18. But a word of caution: if you expect that your child or grandchild will apply for financial assistance for college, it may be wiser to invest the money in your own name. The financial aid application process for college has become increasingly complex, but, in general, colleges treat assets held by the family -- especially a grandparent -- differently from assets held by the student.

Only a portion of family assets are expected to be used for a specific student's education, while all of the child's assets are expected to be used before the student draws on financial aid.

Conclusion

While the rules regarding retirement plans are complicated (and the summary above only brushes the surface) the most important lesson is to always name a designated beneficiary and to make sure that you name individuals only. (You can also name a trust that meets certain requirements beyond the scope of this article.) The second lesson is to consult with a qualified professional advisor when you reach 70 ½, if not before.

Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Your Retirement - Part 2 -FAQ

2010-03-21T07:54:00.000-07:00

To Fix or Recalculate, That is the Question

The second consideration is not so straightforward. At your required beginning date, you may elect the "fixed" or "recalculation" method of determining your minimum distributions. As their names imply, under the first approach the portions of your retirement plan that you must withdraw is based on your life expectancy and that of your designated beneficiary on the required beginning date and it never changes. Under the second approach, you withdraw a bit less than under the fixed approach each year because your life expectancy and that of your designated beneficiary are recalculated each year. The choice makes little difference during the first few years, but the longer you live the better off you are with the recalculation method. Under the fixed approach, when you and your spouse reach age 90 you will have withdrawn everything. But if one of you reaches that age your life expectancy will still be five years, meaning that you would only have to withdraw one fifth of what remained in your plan that year if you had opted for the recalculation method.

On the other hand, if you choose the recalculation method after one of you dies, you will have to base future distributions on the survivor's life expectancy alone. If one spouse dies at a young age, this choice could accelerate minimum distributions. So, what's the best approach? Some experts recommend always using the fixed methods. Others recommend always using the recalculation method unless you or your spouse has a shortened life expectancy for one reason or another. In short, there's no answer that's right for everyone. What you choose may depend on predictions of your longevity and that of your spouse based on your health and the lifespan of other family members. If you designate someone other than your spouse as your beneficiary, you may not elect the recalculation method with respect to his life expectancy, only for your own.

Post-Death Treatment of Retirement Plans

What happens to retirement plans after the participant dies depends on whether the decedent had named a designated beneficiary, whether that designated beneficiary is the decedent's spouse, and whether the participant died before or after her required beginning date. If the participant dies before her required beginning date and has not named a designated beneficiary, all of the plan must be distributed before the end of the fifth calendar year after her death. This is often referred to as the five-year rule. On the other hand, if the decedent had named a designated beneficiary, the assets may be distributed over the beneficiary's life expectancy. If the beneficiary is not the decedent's spouse, the distributions must begin by the end of the calendar year after the participant died. If the beneficiary is the surviving spouse, distributions must begin by the end of the calendar year in which he reaches age 70 ½ or the calendar year after the participant's death, whichever is later.

Again, these rules show the importance of designated a beneficiary. Without a designated beneficiary, the heir must take distributions of the entire plan within five years and pay income taxes on such distributions. With a designated beneficiary, the heir can take distributions over his life expectancy, which for a 38-year-old child, for instance, would be 44.4 years. The ultimate difference to the heir may total hundreds of thousands of dollars over time, depending on the value of the retirement plan. You may designate more than one beneficiary, but the minimum distributions will be based on the life expectancy of your oldest beneficiary. Don't name a non-person, such as a charity, as a beneficiary of your plan or the five-year rule will apply to all of your beneficiaries.

If the plan participant dies after her required beginning date, again the outcome depends on whether she named a spouse as her designated beneficiary. If she did not designate a beneficiary, the heirs would be required to withdraw the entire plan within one year of the death of the participant.

The spouse has an option not available to other designated beneficiaries. He can roll the plan over into his own plan and it will be treated as if he had always been the owner. This means he can postpone withdrawals until his required beginning date and designate a new beneficiary.

A non-spouse designated beneficiary may withdraw from the plan based on her life expectancy and that of the decedent (unless the decedent elected the recalculation method, in which case the beneficiary must make withdrawals based on her life expectancy alone). Note, that in cases where the beneficiary is considerably younger than the decedent, this will allow smaller distributions than before the plan participant's death since the beneficiary will no longer be deemed to be only 10 years younger than the participant.

In part 3 we will discuss the different IRA's

Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Your Retirement - Part 1 - FAQ

2010-03-18T06:37:00.000-07:00

This series will cover some Frequently Asked Questions:

Your Retirement
Following are the basic rules governing taking minimum distributions from retirement plans and a few pointers for getting the most out of them.

Calculating Your Minimum Distribution
Congress created the rules described below to encourage saving for retirement. They imposed a penalty for early withdrawal and a penalty for failure to withdraw once the owner reaches retirement age. Until last year, there was also a penalty for excess withdrawals, in other words for those who saved more than they need for retirement, but that has been repealed.

These penalties are in the form of excise taxes. Withdrawals (with limited exceptions) before age 59 ½ are subject to a 10 percent excise tax. The plan participant must begin taking distributions by the April 1 occurring after he or she reaches age 70 ½ (known as the required beginning date), or pay a whopping 50 percent excise tax on the amount that should have been distributed but was not.

In general, the advantage of retirement plans is that the participant may save income before taxes during his or her working career and continue to have such savings grow without paying taxes until the funds are withdrawn. This permits the retirement savings to grow at a much faster rate than other savings and investments. The participant must pay taxes on any amounts withdrawn. As a result, it usually makes sense to postpone withdrawals for as long as possible.

The amount the participant must withdraw after reaching age 70 ½ is based on her own life expectancy and that of the person she names to receive the plan after her death, known as the designated beneficiary. At the required beginning date, your life expectancy will be either 15.3 years or 16.0 years, depending on whether you have reached your 71st birthday before the applicable April 1. If you have not designated a beneficiary, you will have to withdraw this portion of your plan at that time that is 1/16th (assuming you're 70 years old on your required beginning date). In other words, if your plan holds $160,000, you'll have to withdraw $10,000 or pay a penalty.

On the other hand, if, for instance, you have named your spouse as your designated beneficiary and you are both 70 years old, your joint life expectancy will be 20.6 years, meaning that you can withdraw a smaller portion of your retirement plan each year -- only $7,767 from a plan holding $160,000. In the first year alone, this would permit you to continue to invest an additional $2,233 tax free and save more than $700 in income taxes (depending on your tax rate). The savings can be even greater if you name someone younger than yourself as a designated beneficiary, but if you choose someone who is not your spouse, he or she will always be deemed to be no more than 10 years younger than you.

You can always change designated beneficiaries after you have reached the required beginning date, but they can never be used to reduce your minimum distributions. This means that if you have no designated beneficiary on your required beginning date, you will always be stuck making withdrawals based on your own life expectancy. So, the first rule of retirement plans is to always designate a beneficiary.

Part 2: To Fix or Recalculate, that is the question.

Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.

"Living Longer on Less in Massachusetts:"

2010-03-14T05:16:00.000-07:00

These tough economic times have made it increasingly difficult for many Massachusetts seniors to make ends meet. The Institute on Assets and Social Policy recently released a report entitled: "Living Longer on Less in Massachusetts: The New Economic (in)Security of Seniors." This report highlights some of the financial difficulties faced by seniors today and discusses proposed changes to the law.
The study identified five factors critical in determining the economic stability of seniors. These factors are: Housing costs, healthcare expenses, household budget, home equity, and household assets. According to the study, 68 percent of all senior households in the state are financially at risk. Single and widowed seniors face the greatest financial hardships. The study recommended that seniors meet minimum financial criteria to be considered financially stable. To view the criteria and the proposed changes to state law, click on the following link to read the article in it's entirety:
Article
If you have any questions pertaining to Medicaid, guardianship, or other elderlaw issues, please feel free to contact us at scohen@cohenoalican.com or eoalican@cohenoalican.com or by phone at (617) 263-1035 Boston or (508) 821-5599 Raynham