Sep
30
2013
0

I Thought My Revocable Living Trust Protected My Assets from Medi-Cal

Many people who call our office are under the belief that because they have a revocable living trust, that their assets are exempt from Medi-Cal qualification. They also believe that their revocable living trust protects their assets from a Medi-Cal lien from recovery to the State after they die. Both notions are incorrect.

When qualifying for Medi-Cal, all assets in the name of the applicant, including those in the applicant’s revocable living trust, are counted. If assets are held in a revocable living trust created by a husband and a wife, all of the assets in the trust are counted towards qualification, whether the applicant is the husband or the wife. If you pass away after having been on Medi-Cal, all assets in your revocable living trust are subject to recovery. If there are no assets in your revocable living trust when you die, there can be no recovery against the trust.

In order to gets your “Ducks In a Row” for possible Medi-Cal qualification and protections of assets, your revocable living trust should be updated so that it contains the requisite asset protection and government benefits planning language. In the event of your incapacity, this language will allow your fiduciary, usually your spouse or another loved one, to gift assets or transmute (transfer) assets, pursuant to the Medi-Cal regulations and California law, in order to qualify for Medi-Cal. The majority of revocable living trusts do not contain this language.

If you have an irrevocable trust, the assets in that trust may or may not be counted toward Medi-Cal qualification. And, the assets in the irrevocable trust may or may not be protected from a Medi-Cal lien after you die. The irrevocable trust should be examined by a qualified elder law attorney in order to make that determination.

This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers and families through the Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Sep
23
2013
0

My Dad Has Alzheimer’s and Should Not Be Driving

The troubling issue of how to keep a loved one who has Alzheimer’s from driving comes up often. The independence we all enjoy from driving a car is extraordinary, and most of us, including our parents, have been driving since we were teenagers. When confronted, our parents will be the first to lecture us, with anger, that they have been driving since well before we were born, and that they are just fine. An Alzheimer’s patient however will probably not be able to comprehend the danger of getting behind the wheel. When we have conversations with family members about how to handle this issue, it is usually coupled with a story about how Dad hit something or knocked something over with his car, but that no was hurt this time.

 There are things you can do. Blatantly taking the keys away with a lecture is one approach, but can create resentment and anger. However, taking the keys away or “losing them” may be necessary when weighed against public safety. Psychologists who deal with Alzheimer’s patients say however that it may be better to create a diversion. One son of an Alzheimer’s parent told me that he parked one of his older cars in his Dad’s driveway so that his Dad could not back out. The son told his Dad that he could not start his car when trying to leave and was trying to fix it, and that he was calling his brother to pick him up. When his Dad would bring up the issue and tell his son to get his car out of the driveway, his son would change the subject. Or he would tell his Dad that he was still working on trying to find an after-market fuel pump for the car but was having a hard time. The son would then bring up another subject like what would his Dad like for dinner.

 Another approach is to write to the Department of Motor Vehicles about your parent’s Alzheimer’s condition or fill out a Request for Driver Reexamination form. The DMV will keep your request confidential at your request. You can also ask your father’s M.D. to fill out the form.  

 This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers and families through the Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Sep
16
2013
0

Problems With Do It Yourself Estate Planning:

“My husband has prepared our estate planning documents using downloaded forms from the internet. He now has dementia, and may need to go into a nursing home. Can you help us apply for Medi-Cal and protect our home and other assets?” This is an actual case, and the documents are a mess. The documents will not allow us to protect the home and other assets and qualify for Medi-Cal for the husband without going to court with a petition to reform the documents. A court petition of course is much more expensive than the attorney fee required for the preparation of proper estate planning documents with the correct asset protection and government planning language and provisions.

I have received calls like this one many times over the past 30 + years I have been in practice, and they are usually are not good news. It would seem simple enough to download documents like trusts, wills and financial durable powers of attorney, and just fill in the blanks. Many people also think that it would be safe enough to have a document preparation service prepare your estate planning documents. I have seen many documents from preparation services over the years that have created more difficulties than not having them at all. I remember being in court one time, waiting for my case to be called, listening to an attorney and the judge discuss the problems created by such a trust. I remember the judge saying out loud in open court something like, “The decedent and family would have been better off had they done nothing, as opposed to coming up with this trust.” I have also heard people comment that isn’t most of this “boiler plate any way?” Boiler plate means pre-printed language in pre-printed forms that is used over and over with little or no alteration, and that ‘one size fits all.’ You may not want that!

Estate planning for Baby Boomers and older clients is somewhat sophisticated when it comes to planning for the future for our care and for asset protection. There are established techniques that are recognized under California Law to allow our clients to get their ducks in a row for qualification for Medi-Cal, which pays for skilled nursing facilities, and for asset protection for the surviving spouses and ultimately the children beneficiaries. These techniques can also be used for qualification for the VA Aid and Attendance Pension Benefit. The goal is to lock in the special powers while the clients still have good mental capacity in the long term care plan. Thereafter we implement the plan when needed, and if a party has lost mental capacity, we can still follow through with the plan.
This information is not to be taken as legal advice, and you are encouraged to see your elder law attorney. At the Law Offices of Michael J. Young, at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA www.WalnutCreekElderLaw, 925-256-0298, lawyoung1@gmail.com we practice Elder Law and we help Baby Boomers and families through the Elder Care Journey. We help families with long-term care planning, asset-protection plans, comprehensive estate planning, wills, trusts and powers of attorney. We also help Baby Boomers and families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

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