Walnut Creek Elder Law Blog

We receive calls from people asking us if they need to sell their home in order to qualify for Medi-Cal. They also ask us if the State will take their home after they die, if they have been on Medi-Cal.

Your home is generally an exempt asset for qualification for Medi-Cal. You confirm to Medi-Cal that you have an intent to return home, even if you have to go to a nursing facility for an extended period of time. At the present time, a home of any value is exempt for Medi-Cal qualification. Under the Deficit Reduction Act (DRA), which is not effective yet in California, there may be a qualification that a home cannot have more than $750,000 equitable value. But the DRA is not law yet, and to date, we do not have final language in this regard.

However, if the home is in your estate at the time of your death, it is subject to an estate lien for recoupment by the State. The State can claim against your estate, the amount of Medi-Cal benefits paid to the Medi-Cal recipient, but only up to the value of the estate. There are legitimate ways to protect the home from a State lien however, such as removing it from your estate before you die. The planning techniques in this regard this should be accomplished through an elder law attorney, in that there are potential tax issues to be dealt with.

If the deceased Medi-Cal recipient has a surviving spouse, minor, blind or disabled child, the State cannot pursue a lien. A home in joint tenancy between the surviving spouse and her children, does not provide protection against a State lien. As an aside, the State cannot recover against qualified accounts, such as IRAs, or term life insurance policies.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

When we interview clients at the Law Offices of Michael J. Young, www.WalnutCreekElderLaw.com, regarding Medi-Cal qualification, we always ask if the Medi-Cal applicant owns any life insurance policies. For Medi-Cal qualification, the applicant can own any amount of term life insurance. As a result, term life insurance is an excluded asset for qualification. However, if the applicant owns whole life insurance, the face value cannot exceed $1500. The face value is also sometimes called “combined death benefit.” At times, it is difficult to ascertain the type of policy the applicant owns, and what the face value or “cash in value” is. VA policies, for instance, can present problems because the veteran, who is also a Medi-Cal applicant, may have forgotten that he even owns a VA life insurance policy. When it is discovered, and if the cash in value is over $1500, the applicant will be disqualified from receiving Medi-Cal benefits.

There are remedies to fix the problem, such as cashing in the policy, borrowing against it, and gifting or transferring ownership. If the applicant has lost mental capacity to do these things, we will need to rely on the powers in his financial durable power of attorney. Gifting or transferring ownership of the policy may not be an option for the applicant who has lost mental capacity, if the durable power of attorney does not contain the appropriate “elder law” asset protection and gifting language.  Most financial durable powers of attorney do not have this special language. You should see your elder law attorney to pre-plan for these issues.

It is also a good idea to discover whether the Medi-Cal applicant is the beneficiary of any life insurance policies, such as from a spouse. If the well spouse dies first and the Medi-Cal applicant receives the proceeds from the policy, the applicant could immediately lose eligibility.  

This blog is for informational purposes only and is not legal advice. Please see an elder law attorney for your particular case.

Written Michael J. Young, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Alamo, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

For Medi-Cal qualification, one car is generally deemed exempt. We receive calls in our office, The Law Offices of Michael J. Young, 925-256-0298, www.WalnutCreekElderLaw.com,  from people telling us that they are going to immediately sell the second car.  They think they need to do this in order to create Medi-Cal eligibility for their loved one. We tell them that this may not be necessary, in that Medi-Cal allows you to have more than one car. The first car is exempt if it is used for the benefit of the applicant/beneficiary, or if it is needed for medical reasons. You can declare the most expensive car as the exempt car. The value of the second car, which is not exempt, will be added to the total value of the assets of the applicant. Remember that an individual applicant can only have $2,000 in non-exempt assets. A couple can have $2,000 in non-exempt assets for the “ill spouse” and $109,560 in non-exempt assets for the “well spouse.” The second car is not an exempt asset, and may have to be sold or transferred to create eligibility. 

If the applicant does not have a car, they can purchase a car to “spend down” assets in order to create Medi-Cal eligibility. There is no “look back period” for this purchase. When I mentioned this at one of my recent seminars,  one of the attendees jokingly asked if his parents could purchase a $1.5 million dollar Bugati automobile in order to create eligibility.  I suggested that if they could afford such a car, they probably wouldn’t be calling me, and also that the eligibility worker may view this as an abuse of the system.

This blog is for informational purposes only and is not legal advice. Please see an elder law attorney for your particular case.

By Elder Law Attorney Michael J. Young. The Law Offices of Michael J. Young is located at 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. www.WalnutCreekElderLaw.com, LawYoung1@Gmail.com. Serving Contra Costa and Alameda Counties, including Walnut Creek, Concord, Brentwood, Pleasant Hill, Alamo, Antioch.

A little known ”spend down” technique for Medi-Cal qualification purposes is the FUNERAL EXPENSE TRUST, also known as the FINAL EXPENSE TRUST. Medi-Cal allows for assets in any amount to be transferred from the Medi-Cal applicant to an irrevocable trust, to pay for the funeral expenses of the Medi-Cal recipient. This transfer does not create any periods of ineligibility for Medi-Cal qualification.

In our office, The Law Offices of Michael J. Young, www.WalnutCreekElderLaw.com, we routinely ask our clients at the initial meeting about their thoughts regarding funeral arrangements. We talk about burial vs. cremation, a traditional funeral vs. no funeral, or something in between.  We also talk about potential costs for final expenses. Many of our clients will transfer funds to the irrevocable trust to create immediate eligibility for Medi-Cal, without creating a period of ineligibility.

Other clients, and their families, just like the peace of mind, aside from Medi-Cal issues, in knowing that cash is available in the trust for funeral expenses.  These funds are protected from creditors, such as nursing homes, hospitals, etc., because the funds are in an irrevocable trust. There are no probate issues concerning the funds, and the fund is income tax free. The family can take the trust to any funeral home or cremation service, etc., in any state, and use the funds for their loved one. In addition, with the trust fund for funeral expenses in hand, it is easier for the family to shop for funeral services when the time comes. Of course, additional services can be purchased. Funds not used from the trust fund are available to the estate of the decedent and to Medi-Cal.

Your elder law attorney can provide more information to you about the final expense trust. Written by elder law attorney Michael J. Young, 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 925-256-0298

VA BENEFITS MAY COVER THE COST OF AN ASSITED LIVING FACILITY OR IN HOME CARE

www.WalnutCreekElderLaw.com. As we discussed in previous Elder Law Today newsletters, the Veteran’s Administration provides a wonderful pension benefit for those individuals who served at least one day during a period of wartime and are now disabled due to non-service connected reasons (aging related issues,  Alzheimer’s, Parkinson’s, multiple sclerosis, and/or other physical disabilities).  This pension, referred to as “Aid and Attendance Allowance”, may pay  the long term care provided in an assisted living facility, or in-home care.  

The “Aid and Attendance” (A and A) benefit is available to a veteran who is disabled and requires the aid of another person to perform the personal functions required in everyday living.  A veteran can show they are eligible if they have a substantial need for assistance with the activities of daily living.  Such activities include bathing, dressing, meal preparation, etc.  A veteran would also qualify for this pension if they can show they need the attendance of another person in order to avoid the hazards of his or her daily environment.  The need for assistance does not have to be permanent.

 Under this program, a veteran can receive up to  $1,644.00 per month or $19,736 per year in benefits, and a widowed spouse can receive up to $1,056.00 per month of $12,681 per year in benefits.  The applicant must be “permanently and totally disabled” under the VA rules.

The vet does not need to be helpless under the rules. He only needs to show that he is in need of aid and attendance on a regular basis. Someone who is housebound or in an assisted living facility and over the age of 65 is presumed by the Veterans Administration to be in need of Aid and Attendance.

Eligibility for the program is based on the income and assets of the veteran. In determining income, deductions are allowed for unreimbursed medical expenses (UMEs). In home care workers are an allowable deduction, provided that some medical or nursing services are provided. Also, the cost of an assisted living facility, or a portion thereof, can be an allowable medical deduction against gross income. 

 In addition, a family member can provide in-home care for a veteran who is applying for aid and attendance.  In order to meet the disability criteria, the care services provided by an unlicensed relative must be prescribed by a health care professional (ex. doctor, RN, LPN or licensed physical therapist) and the professional must consult with the unlicensed relative caregiver at least once a month (in person or by telephone) to monitor the regimen.  In addition, there must be a valid care contract in place and the caregiver must be receiving no more than fair market value for services he or she is providing.

If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

 CAVEAT: When planning for this VA benefit, you should also plan for Medi-Cal benefits and coordinate all of this with your elder law estate plan at the same time. An elder law estate planning attorney, who is also accredited by the VA, is best equipped to help you with this planning. When seeking help for this VA benefit, always ask if the person helping you is accredited by the VA.  

 The following are some additional requirements for eligibility:

 a. Be a veteran who served at least 90 days of active duty.

b. At least one day of active duty had to be during wartime: WWII – 12/7/41 to 7/25/47 – Korea – 6/27/50 to 12/31/55 – Vietnam – 8/5/64 to 5/7/75;

c. Does not need to have been in combat;

d. Discharged other than dishonorably;

e. Income less than $1,644 per month, once out-of-pocket medical expenses are considered.

f. Net worth less than approximately $50,000 for singles or $80,000 for couples.

g. Gifting of assets is allowed with no look-back period, but must be coordinated with Medi-Cal planning and gifting, which does have a look-back period.

 If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

Elder Law Today is written by Michael J. Young, Attorney at Law, 1931 San Miguel Dr., Ste. 220,  Walnut Creek, CA 94596. This information is for general informational purposes only, and does not constitute legal advice. For specific questions, you should consult a qualified attorney. MIKE@WALNUTCREEKELDERLAW.COM

For additional information, such as upcoming seminars, past newsletters, and to listen to an interview with attorney Michael J. Young, visit  www.WalnutCreekElderLaw.com.

Office: (925)-256-0298

UPCOMING SEMINARS BY ELDER LAW ATTORNEY MICHAEL J. YOUNG:

Dates: Fridays, January 8 and 22, from 2:00 to 3:30 p.m. at the Law Offices of Michael J. Young, in the Channell Room. For reservations call 925-256-0298.

     Certain assets are generally exempt, or not counted, for Medi-Cal eligibility. The following is a partial list of exempt assets. There are, of course, rules affecting each of these items. As a result, please consult your elder law attorney.

• One automobile is exempt for qualification. Many people think that if they have two cars, they have to sell one to become eligible. This is not true. The second car is counted as an asset, and the value is determined by the Medi-Cal eligibility worker.
• Whole life insurance policies are exempt, provided that they do not have more than $1500 cash in value.  If they do, you must transfer the asset, cash it in, or take other steps to lower the value. Be sure your durable power of attorney has the appropriate elder law/asset protection language in it to accomplish this, in the event you lose the ability to accomplish this yourself.
• You can have term life insurance in any amount.  
• You can transfer monetary assets into an irrevocable final expense trust. This is a good planning technique to lower cash assets for Medi-Cal qualification. When the recipient passes away, the funds can be used at any funeral home in any state. Funds not used are subject to Medi-Cal recovery. Another advantage is that part of the family’s concern about burial plans is taken care of ahead of time.  
•  IRAs, pension funds and work related annuities are exempt. Medi-Cal does have  distribution rules for principal and accrued interest however.  
• $2,000 in cash.  
• Your home is exempt for qualification.  

             By Michael J. Young, elder law and estate planning attorney in Walnut Creek, Contra Costa County, California. Mr. Young’s office is located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA 94596. His office number is 925-256-0298 and his e-mail address is LawYoung1@gmail.com. You can go to his web site at www.WalnutCreekElderLaw.com  Mr. Young serves senior clients and their families in Contra Costa and Alameda Counties. He also has many senior clients in Danville, Brentwood, Pleasant Hill, Antioch, Concord, Alameda and surrounding communities. His long term care plans for older clients help families prepare to pay for nursing home costs and to preserve assets. He also helps his clients apply for Medi-Cal and the VA Improved Pension, Aid and Attendance benefit. You may see Mr. Young’s “Nuts and Bolts” Guide to Veteran’s Benefits at the following link. www.walnutcreekelderlaw.com/GuideToVeteransBenefits.html Please check his web site for upcoming seminars.

VA AID AND ATTENDANCE BENEFITS

            The VA Aid and Attendance pension benefit program is provided by the Veterans Administration to veterans and their surviving spouses. This benefit helps to pay for in-home care, assisted living facility and nursing home costs. There are income and asset requirements for qualification. When we plan for the VA Aid and Attendance benefit for our senior clients as part of their long term care plan, we also plan for Medi-Cal benefits at the same time. If this  planning is not coordinated and done carefully by an elder law attorney, you may become eligible for the VA Aid and Attendance benefit, but ineligible for Medi-Cal for a long period of time.

             You should see a senior law attorney who is accredited by the Veterans Administration to give advice on the Aid and Attendance program, and who is accredited by the VA to file an application for this benefit on behalf of his clients. The senior law attorney is required to make the application on a pro bono basis on behalf of his clients. Beware of individuals and organizations who appear somehow to be connected with the Veterans Administration. Many times they are annuity salespeople, and are certainly not accredited by the Veterans Administration. They make their living by selling annuities. Annuities may at times be a valuable tool for asset protection, but should not be the focus of long term care planning. In addition, the use of an annuity may be a “time bomb” as far as Medi-Cal eligibility is concerned. The annuity salesman may help create eligibility immediately for the VA Aid and Attendance pension benefit by the use of an annuity, but may create long periods of ineligibility for Medi-Cal. Always ask if the person who is offering to give you advice on the Aid and Attendance benefit has been accredited by the Veterans Administration.  They must  be accredited to file for an application for the VA Aid and Attendance benefit and to give specific advice with regard to the application. If they are not so accredited, they will most likely be in violation of the law.   

             To be eligible for the benefit, the veteran must have been honorably discharged from the service. The veteran must have also served one day during a wartime period, and must have been in the service during a wartime period for 90 continuous days. Also, it is not a requirement that the veteran saw combat, or that he was injured.

            By Michael J. Young, Elder law attorney in Contra Costa County.

 Mr. Young’s office is located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA 94596. His office number is 925-256-0298 and e-mail is LawYoung1@gmail.com. You may visit his website at www.WalnutCreekElderLaw.com  Mr. Young serves senior clients in Contra Costa and Alameda Counties. He also has many senior clients in Brentwood, Antioch, Concord, Alameda and surrounding communities. His long term care plans for seniors helps families prepare to pay for nursing home costs and preserve assets. He also helps his clients apply for Medi-Cal and the VA Aid and Attendance Pension benefit. You may see Mr. Young’s “Nuts and Bolts” Guide to Veteran’s Benefits at the following link. www.walnutcreekelderlaw.com/GuideToVeteransBenefits.html

             For Medi-Cal eligibility, the single applicant must have no more than $2,000 in non-exempt assets in her name. If you just give away your assets, without proper planning, and you want to enter a nursing home, you may create a period of ineligibility for Med-Cal. The ineligibility period begins at the date of the transfer.

             Medi-Cal presently has a 30 month look back period, and they use a divisor of $5,698, which is known as the average private pay rate (APPR). This figure is used to determine the period of ineligibility. So for example, if you transfer $20,000 to a family member, and divide that figure by $5,698 you will have 3.5 months of ineligibility. This is rounded down to three months of ineligibility from the date of the gift. If this gift is made in November, 2009, the applicant would be ineligible for November and December of 2009, and ineligible for January, 2010. She would be eligible in February, 2010.

            If $200,000 is transferred to another individual, (divided by $5,698), 35 months of ineligibility is created. However, Medi-Cal presently has a 30 month look back period. So, after 30 months have passed from the date of this transfer, the applicant would be eligible for Medi-Cal.

             There are also acceptable and legal methods for transferring assets, among family members for instance, which create fewer months of ineligibility. An elder law attorney familiar with nursing home and Medi-Cal eligibility can advise you on these matters.

            By, Michael J. Young elder law attorney in Walnut Creek, CA.

            Mr. Young is an elder law attorney who practices in the east bay. His office is in Contra Costa County, located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA. Mr. Young has East Bay elder law clients who live in such towns as Brentwood, Antioch, Concord, Alamo, Walnut Creek, etc.  Many of his clients are concerned about how they will pay for their nursing home costs. Mr. Young prepares long term care plans for his clients, which may include utilizing Medi-Cal and the Veterans Administration Aid and Attendance Benefit for wartime veterans. www.WalnutCreekElderLaw.com  Lawyoung1@Gmail.com 925-256-0298

For Medi-Cal qualification, the community spouse (well spouse) is allowed to have $109,560 (in 2009) in non-exempt, or countable assets. This is called the Community Spouse Resource Allowance, or CSRA, which increases yearly based upon the Consumer Price Index.

Only non-exempt assets are counted for the CSRA. As a result, IRA’s in the name of the well spouse, which are exempt, are not counted. Also not counted are a car, the house, household goods and jewelry in the name of the well spouse, plus the $109,560. Once the ill spouse is eligible for Medi-Cal, any assets acquired by the well spouse will not affect eligibility of the ill spouse. So, an inheritance received by the well spouse after the ill spouse is qualified, will not affect eligibility of the ill spouse.

In addition, under California law, the well spouse can keep all of her income. In addition, she is allowed to have what is called a minimum monthly maintenance needs allowance of income (MMMNA) of $2,739. If she is under that amount, she can receive a portion of her ill spouse’s income, to bring her up to that amount. 

The impoverished spouse statutes state that if the $109,560 CSRA, and/or the $2,739 MMMNA are insufficient for the well spouse to live on, she can file for an administrative hearing or file a petition with the court to have these amounts raised.

 By Michael J. Young, elder law attorney in Contra Costa County. Our offices are located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA 94596. (925) 256-0298. Please visit our website at www.WalnutCreekElderLaw.com

 Michael J. Young, elder law attorney advises clients in Walnut Creek, as well as surrounding  towns such as Danville, Concord, Brentwood and Antioch.

If you die after having been on Medi-Cal, the State can pursue a claim against your estate for recoupment of the money they paid to the nursing home. But, if there are no assets in your estate when you die, there will be nothing for the State to recover. The State will not pursue a claim however while the surviving spouse is alive. There are also exemptions if there is a minor, blind or disabled child of the recipient, living at the time of the recipient’s death.

 It is a common misconception that the revocable living trust of the recipient provides protection against a State lien. California will pursue claims against assets in living trusts. They will also pursue claims against joint tenancy interests and tenants in common, for instance. The amount of the potential recovery is limited to the amount of the benefits paid by Medi-Cal, or the value of the recipient’s estate, whichever is less. If your home is encumbered by a mortgage, this will reduce the available equity the State could pursue.

 An elder law attorney who is familiar with the Medi-Cal rules and regulations, can help you qualify for Medi-Cal, and can help you legally arrange your assets so that they will not be susceptible to a lien after you die. This process will also allow you to preserve your assets for a longer period of time while you are live. Remember, that if you run out of money, you run out of options.

 By Michael J. Young, Elder Law Attorney.

 Mr. Young practices elder law in Contra Costa County, and his office is located at 1931 San Miguel Dr., Ste., 220, Walnut Creek CA 94596. (925)-256-0298. He advises clients in cities such as Walnut Creek, Concord, Danville, Alamo, Antioch and Brentwood. You may visit his website at www.WalnutCreekElderLaw.com.  Mr. Young helps clients qualify for Medi-Cal benefits to pay for nursing home costs. He also helps clients qualify for the V.A. Aid & Attendance pension benefit for wartime veterans to help pay for in-home care. Many of Mr. Young’s clients are Alzheimer’s or Parkinsons’s disease patients.