It is not a requirement that the Veteran purchase an annuity and/or sell his home in order to qualify for the VA “Aid and Attendance” benefit. And, in the majority of cases, neither is necessary. An elder law attorney who deals in this area of planning, will in most instances be accredited by the VA to file claims for their clients. We receive calls from family members who complain bitterly that they sold their parents’ home and bought an annuity at the advice of someone, to obtain qualification for VA benefits. They find out later that the purchase of an annuity and sale of the home were both unnecessary. The Veterans Administration has a non-service connected benefit available as a potential source of funds to help pay for long-term care costs for the disabled veteran who is at home or in an assisted living facility. It is a program called “Aid and Attendance”, and is available for Vets who are disabled due to the issues of old age, such as physical disabilities, Alzheimer’s, Parkinson’s or multiple sclerosis. The Vet needs to show that he is in need of regular aid and attendance on a regular basis. Needing help with various “activiities of dailly living”, is a good measure of the test. A Vet who is housebound or in an assisted living facility and who is over 65 is presumed eligible for the benefit. A Veteran can receive up to $1,801 per month, and a widow or widower can receive up to $976 per month. There are asset and income requirements. When planning for VA benefits, you must also plan for Medi-Cal benefits at the same time. There is no “look back period” for gifting under VA rules, but there is a “look back period” under Medi-Cal rules. A big transfer of assets to create eligibility for the VA benefit could make the older person ineligibile for Medi-Cal benefits. The home is exempt for qualification under both benefits, so there is no need to sell the home. The home can be protected, however, from a Medi-Cal lien after the death of the recipient. The purchase of an annuity to create eligibility for VA benefits, could make the older person ineligible for Medi-Cal benefits. The annuity may not fit within Medi-Cal guidelines, and could be treated by Medi-Cal as a transfer of assets. Moreover, and more importantly, although not all annuities are bad or unnecessary, the purchase of an annuity, may not be necessary at all. When seeking help to obtain the VA benefit, ask if the person helping you has VA accreditation to file claims. A fee cannot be charged for filing a VA claim, and elder law attorneys will pursue the claim on a pro bono basis. Usually, the VA benefit is only part of long term care planning for the elder client, which will also involve asset protection, disability planning and Medi-Cal planning. Before purchasing an annuity, or any product as part of VA planning, and certainly before you sell the home, it is good advice to contact an elder law attorney for a review. You can see more on this subject in several of my Elder Law Today newsletters as follows: A VA Benefit for Long Term Care Pt. 1 – And to be 85 Again”>A VA Benefit for Long Term Care Pt. 1 – And to be 85 Again VA Benefits May Cover the Cost of an Assisted Living Facility or In Home Care A VA Benefit for Long Term Care Pt. 2 – And Back to Work After the War You can see additional information on this and other subject at my website at WalnutCreekElderLaw.com.
An elderly client of mine died recently. When she first came in to see me, she was in her early 80′s. She was quite frail physically, but very with it mentally. She brought her three children with her. Fortunately, she still had good mental capacity, so we were able to amend her revocable living trust and durable power of attorney to add good asset preservation and elder law language. At the first meeting, we discussed what steps we could take now, to preserve assets, in case she were to go into a nursing home and she wanted to apply for Medi-Cal. One of the children said that they should wait. My client then looked at me and said, “Mr. Young, I don’t think I am getting any better. Also, I know I am not getting any younger. So, I think we should start now.” I will never forget that moment. I think she was signaling to her children to pay attention to the fact that action should be taken now. We should take action with our estate plans and elder care planning, preferably when we are younger and better. Take a look at one of my Elder Law Today Newsletters where we discuss this issue at: http://walnutcreekelderlaw.com/Newsletters/EarlyDiagnosisOfDementia.html Also, you can find additional information on this and other subjects in my website at http://walnutcreekelderlaw.com/ . Thank you,
Michael J. Young, Elder Law Attorney.
Unlike many other States, probate in California is fairly complicated. If the estate is simple and no federal estate tax is due, the final order can theoretically be obtained within 9 months of the filing of the petition. The more likely scenario is that it can take 12 to 15 months to complete the probate process. Probate can be avoided, for instance, with the use of trusts and pay on death designations on various assets. Please see my Elder Law Today newsletter on this topic at http://www.walnutcreekelderlaw.com/Newsletters/AvoidingProbate.html.
Examples of assets subject to probate would be those in the decedent’s name alone, a tenant in common interest in real property, and the one-half interest in a spousal community property asset. The threshold amount to trigger a full probate is $100,000. The will is lodged with the court, the court appoints an executor or administrator, and ultimately the court will decide who the beneficiaries are and what they will receive from the estate, after taxes, costs and other items are paid. Both the executor or administrator, and the attorney are entitled to a probate fee, which is an amount determined by the California Probate Code. Family disputes are also settled in probate court. For additional information on this and other topics, please see my website at http://www.walnutcreekelderlaw.com/. Thank you, Michael J. Young, Attorney at Law.
The practice of elder law is a fairly new field within estate planning. I have been in practice for over 30 years, and in private practice for over 20. As a Baby Boomer, my estate planning practice has evolved over the years into an elder law/estate planning practice. My parents are both gone now, but as they grew older, I adapted to their needs regarding not only regular estate planning, but asset preservation, and what I call “Life Care Plannning.” Many of my clients are now Baby Boomers who come to see me about their parents’ long term care plans, public benefits planning, etc. We also discuss the Baby Boomers’ long term care plans, as we Baby Boomers are entering our 60′s. Yikes!
Traditional estate planning involves estate tax issues, avoiding probate and distribution of assets upon death. Elder Law involves these issues, but is focused also on preserving assets and options, as we live longer lives. Asset preservation, disability planning and care planning are part of the picture. One of the goals is to preserve our assets for ourselves and our families, from the high cost of nursing home care. Government benefits planning, including Medi-Cal and VA planning, and applications for these government benefits, is part of the practice of elder law. When looking for an elder law attorney, inquire as to whether the attorney’s practice is dedicated to these areas of the law.
You may visit my web site at http://www.walnutcreekelderlaw.com/ for further information. Also, you can check out one of my newsletters on this topic at: http://www.walnutcreekelderlaw.com/Newsletters/GiftToParentsOfBabyBoomers.html Thank you, Michael J. Young, Attorney at Law
We get calls every week from potential clients who tell us they understand that they need to sell their homes in order to qualify for Medi-Cal or for VA Benefits. This week, a couple called and said that they had been advised to sell their home, had done so, and had taken a huge capital gains hit. Selling the home should be a last resort. Most people want to keep their homes, and indeed they want to return to their homes, even if they have been in a nursing home. The home is exempt for VA Aid and Attendance eligibility. The home is also exempt for Medi-Cal qualification. The home can also be protected against a Medi-Cal lien after the death of the Medi-Cal beneficiary. For further information, see my Elder Law Today newsletter at: http://walnutcreekelderlaw.com/Newsletters/DontSellTheHome.html Also, for additional information, you can visit my website at: http://walnutcreekelderlaw.com/ Thank you, Michael J. Young, Elder Law Attorney in Walnut Creek, CA.
It is a good idea to review revocable living trusts and the related estate planning documents, to be sure they have the updated elder law language for asset protection and public benefits planning. The daughter of an elderly woman came to see me, to help get the mother qualified for Medi-Cal, and to protect the mother’s home from a Medi-Cal lien. The mother had lost her mental capacity, so we could not update the language in the trust to transfer the home to the children and reserve a life estate to the mother. As a result, we had to go to court to obtain an order to change the language in the trust. The court process is cumbersome, takes time, but can be avoided with properly drafted estate planning documenbts. You can view my Elder Law Today newsletters on this area and others, such as: http://walnutcreekelderlaw.com/Newsletters/RealPropertyMedi-CalQualification.html
Michael J. Young
Once again the Holiday Season is upon us. ’Tis the season’ for mixed blessings. Along with the joys of the season come the stressors. This year you wonder how you will manage to get everything done. Your “to-do” list, as always, seems never ending with shopping, baking and decorating. This year, however, you know at the top of your priority list is providing the best possible care for your elderly loved one who suffers from increased dementia. This time of year can likewise create stress for your loved one whose anxiety levels seem to mirror your own. Unlike yourself, however, the dementia affects your loved one’s ability to express himself or herself clearly. Simple changes in routine can cause unexpected anxiety which increases with the inability to verbalize what they are feeling.
In addition to the stress on both caregiver and care recipient, out of town guests add a whole new dynamic. Family members may feel shocked by your loved one’s mental and physical changes. This shock can produce feelings of guilt or anger that may be directed at you. Your loved one may also exhibit additional uneasiness — possibly viewing family members as strangers.
So the question remains, “How do you make it through the holidays and maintain some semblance of peace?” And, equally important, “How do you help your elderly loved one do the same?”
First of all, you may want to do some pre-planning. Waiting until the last minute often leaves a person feeling rushed and harried. To avoid this unnecessary stress, create a list of priorities.
If you plan to take your loved one with you holiday shopping, hit stores early in the day and on weekdays. Most malls and department stores are far less crowded at these times. Also, take along a picture of the person you are shopping for. This provides a reminder to your loved one and an opportunity for their input on the gift. Encourage your loved one to take part in wrapping the gifts when at home. (Be mindful, however, of their frustration levels).
If you are doing any of the holiday cooking, establish the menu ahead of time. Plan to buy as many of the ingredients as possible a week or two in advance. Also, prepare whatever will keep in the refrigerator or freezer ahead of time so there is less to do on the actual day of your gathering. Most importantly, don’t be afraid to ask others to bring along a dish. Most guests would be happy to help.
Prepare your visiting family members for potential changes in your loved one’s status. Imagine how drastic changes and declines would seem if you had not been present to witness them. Sharing can help them prepare family and friends for the emotions they may feel when confronted with these changes.
Ultimately, you cannot eliminate stress from every environment. For this reason it is essential that you eat well, exercise and get plenty of sleep. With your own stress level in check, you can focus on monitoring the stress levels of your loved one.
If the stress gets overwhelming, consider getting help with your caregiving tasks. Home health care agencies can provide help a few hours a day or a few hours a week. Adult Day Care gives your loved one a safe environment in which to interact with others. If your holiday plans include an over-night visit or extended stay, check into Respite Care.
UPDATE ON MEDI-CAL PLANNING: In previous ELT’s, we have written about the existing Medi-Cal rules, vs. the more onerous rules under the Federal Deficit Reduction Act. Although the Governor has signed the act into law in California, it is not yet effective. The act’s provisions will not be implemented until non-emergency regulations are filed with the Secretary of State, and this process could take several more months.
As a result, we are still working under the old rules which in part provide for a 30 month look-back period for gifting, with the months of ineligibility disappearing, starting the month the gift was made. Under the new rules, when they are implemented, there will be a five year look-back for gifts. And, the months of ineligibility begin to disappear after the ill person has spent or gifted their assets. This will make asset preservation and Medi-Cal planning more difficult. As a result, planning should be accomplished now, under the old rules.
Micahel J. Young, elder law attorney, has written a variety of elder law publications. They can be viewed at http://walnutcreekelderlaw.com/ElderLawPublications.html.
Estate Planning Test
Is your estate plan up-to-date? Take this quick and easy test to find out!
Estate Planning Frequently Asked Questions
10 important questions and answers regarding estate planning in California.
Medi-Cal Planning and Qualification
Medi-Cal Resource Allowance for an Individual: $2,000
The $2,000 limit however is for what Medi-Cal identifies as “non-exempt” property. Exempt property is not counted in determining eligibility….
Medi-Cal Planning Reference Sheet
Medi-Cal financial information, including the Community Spouse Resource Allowance, the Average Private Pay Rate Divisor, the Minimum Monthly Maintenance Needs Allowance, the Resource Allowance for an Individual, and the Monthly Maintenance Needs Allowance.
Medi-Cal Qualification Fact Sheet
Updated Jan. 1, 2008
Exemption of the Home for Medi-Cal Qualification
The home remains exempt for qualification for Medi-Cal as long as certain conditions are met. Meeting one or more of these conditions is generally easy to do.
The Consumer’s Guide to Hospice Care
Everything you need to know regarding Hospice Care. Topics include docor recommendations, basic description of Hospice Care, why a person should choose Hospice, the history of Hospice, levels of care and Medicare eligibility requirements, steps to take when deciding to choose hospice, the basics of Medi-Cal, spending down or gifting assets, transfers for married couples, frequently asked questions, avoiding probate, and more.
Hospice Care Explained
Five reasons why it’s important to talk to an attorney who understands the needs of Hospice patients and their families.
The Alzheimer’s Legal Survival Kit
A very thorough guide to caring for Alzheier’s disease in California. Topics include planning ahead and long term care strategies, revising wills and trusts, changing property titles, durable power of attorney for financial affairs, durable power of attorney for health care decisions, strategies for financial or other gifts, Medi-Cal planning, resource exemptions, spousal impoverishment laws, safe driving and California drivers, and more.
The Nuts and Bolts Guide to Veteran’s Benefits
An introductory tour of the Special Monthly Pension available for wartime veterans and/or survivor spouses who are age 65 or older OR permanently and totally disabled. Revised February, 2008
Secret Dollars: Veteran Benefit for Long Term Care Revealed
Secretary Nicholson of the Department of Veterans Affairs, recently reported that the VA is reaching out to veterans and spouses to alert them to an under used benefit called “Aid and Attendance” (A and A).
A.K.A. – Aid & Attendance
Basic Eligibility for VA Pension
Revised March 5, 2008
Welcome to the Law Offices of Michael J. Young. Our firm provides estate planning, Elder Law estate planning, long term care planning and planning for preservation of assets for individuals and couples. We also provide legal services for probate and trust administration, and assistance regarding Medi-Cal issues.
Our estate plans are specifically designed and tailored for each of our clients’ needs and goals. We view estate planning from two perspectives: the first is from the perspective of what happens if you die; the second is from the perspective of what happens if you don’t die. Although we all die, our senior population is living longer and longer. Mr. Young’s father, at this writing, is in his late 80’s. Several of our clients are in their 90’s. The goal in our estate planning is to have a view toward a very long life for our clients, the care of our clients and the preservation of their assets for themselves and their families for as long as possible.
Alzheimer’s disease unfortunately affects many of our clients. The estate plans regarding these individuals not only involves the preservation of assets for long term care, but also the involvement of family members and others who may ultimately care for the senior clients.
We do not bill by the hour for our estate plans, and we do not bill for the initial consultation. Most of the time, we initially interview the potential client or their family members over the telephone. If it seems like there could be a “fit”, we will schedule an appointment at which time a fee will be quoted for the agreed upon plan.
Walnut Creek Elder Law is located in the San Francisco bay area. Surrounding cities include Lafayette, Moraga, Orinda, Danville, San Ramon, Pleasant Hill, and Concord. If you or a loved one lives in the bay area and needs to consult an attorney, please contact us.