Jan
30
2018
0

Medi-Cal Community Spouse Resource Allowance (CSRA) As of January 1, 2018

When one spouse applies for Medi-Cal, the state will look at the assets of both spouses for qualification of the ill spouse. As of January 1, 2018, the community spouse, also known as the “at-home” spouse, or the “well spouse”, may retain up to $123,600 in liquid assets. The ill spouse cannot have more than $2,000 in liquid assets in his or her name. The couple can also keep their home if the ill spouse confirms that he or she intends to return home. Assets held in revocable living trusts will be considered available, depending on the asset. Any non-exempt assets that the ill spouse has in his name, or jointly with his spouse, over the amount of $2,000, will be counted by Medi-Cal in determining eligibility. The state will want to know about all assets of both spouses, including savings, cash, stocks, etc. In addition, the cash surrender value of whole life insurance of the ill spouse cannot exceed $1500. If it does, you will want to transfer the excess cash to the well spouse. There is no ineligibility penalty for transfers between spouses. For Medi-Cal qualification, assets of the ill spouse are often transferred to the well spouse. Be sure that your revocable living trust and financial durable powers of attorney have the appropriate “transfer” and “gifting” language, in the event either of the spouses loses capacity. If incapacity sets in, and the appropriate language is not there, you may be prevented from making  transfers or gifts.There are of course more rules and regulations to consider, and this article is not exhaustive on the subject. Contact our office so that we may help you plan for qualification for Medi-Cal.

Michael J. Young

Elder Law and Asset Protection Attorney

Medi-Cal Attorney Walnut Creek

1931 San Miguel Dr. Ste., 220

Walnut Creek, CA 94596

925-256-0298

Jun
13
2017
0

Your Home and The “Heggstad” Petition

Your home should be transferred to your revocable living trust for various reasons. One reason is to avoid probate of your home upon your death. Another reason is that as of January 1, 2017, if you die after having been on Medi-Cal, the state will not be able to pursue recovery against your home if it is in your revocable living trust.

Some individuals, for various reasons, take their home out of their revocable living trust and do not transfer it back to their trust before they die. One reason the home is taken out of the trust is for re-finance purposes. Some lenders require that your home not be in your trust when you re-finance your mortgage. As a result, the escrow company may prepare a deed for you to sign, taking your home out of the trust. Escrow will usually not transfer your home back into your trust after escrow closes, because they would be violating the lender’s escrow instructions. As a result, you should transfer your home back into your trust after the close of escrow, unless there is a good reason for you not to do so. When you make this transfer back to your trust, your home will not be re-assessed, and the transfer will not trigger the due-on-transfer clause in the deed of trust which secures your mortgage.

The problem is that if you die, and title to your home is not in the trust, your home will need to be probated. A probate can take up to a year to complete, and is a costly process. Fortunately, there is a shorter court process in California that we can use to obtain a court order transferring your home back into your trust after you die. This is called the “Heggstad” Petition, which is named after a court case. If we can prove to the court through this court petition and supporting declarations that it was the obvious intention of the maker of the trust to keep his or her home in the trust, the court may grant an order, transferring the home back into the trust, thereby avoiding probate. This procedure is not guaranteed, but the courts have been more willing in recent years to grant this petition. As a result, if you take your home out of your trust, check to be sure that you have transferred it back into your trust, unless there is a good reason not to do so.

Please feel free to contact our office should you need help with estate planning, asset protection, and qualifying for and applying for Medi-Cal. 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, Seniors and families through their 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Mar
15
2017
0

Does Your Trust Have a Mandatory Bypass Provision?

Most modern Revocable Living Trusts do not have a Mandatory Bypass Provision, which is usually good planning. This provision is normally NOT necessary, and if you have one, it can cause unnecessary headaches after the first spouse dies. A mandatory bypass provision will require splitting and re-titling of the trust assets between a Revocable Survivor’s Trust and an Irrevocable Exemption Bypass Trust after the first spouse dies. You will need a tax I.D. number for the bypass trust, and a fiduciary tax return will need to be filed every year. The surviving spouse will also not have complete control of the assets in the irrevocable bypass trust. The mandatory bypass trust makes Medi-Cal qualification more difficult, because the state will require that you exhaust the assets of the bypass trust before you can qualify for Medi-Cal.

The primary purpose of a mandatory bypass provision in your revocable living trust is to save on death taxes, aka inheritance taxes. The current federal death tax exemption amount is $5.45 million per individual. So if you think you will have more than $5.45 million dollars after the first spouse dies, the mandatory bypass may be useful. Also, if the spouses have a blended family with “his mine and ours” children, the mandatory bypass trust can protect the assets of the children of the first spouse to die.

To avoid issues created by mandatory bypass provisions, you can instead have a discretionary bypass provision in your revocable living trust. This will provide the same results as a mandatory bypass, but will give the surviving spouse the discretion of funding a bypass trust for tax purposes. However, this funding must be completed within 9 months of the date of death of the first spouse to die. You should now check the provisions in your revocable living trust that tell you what to do after the first spouse dies. If the provisions call for a mandatory bypass trust and a split of the assets after the first to die, you may want to have the provision changed by your elder law attorney with an amendment. Most older trusts have a mandatory bypass provision, which should probably be changed.

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, Seniors and families through their 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Jan
30
2017
0

Do not Listen To Your Neighbors Regarding Medi-Cal Eligibility

Do not listen to your neighbors regarding Medi-Cal eligibility! Over the last number of days, we have been told by several individuals who are interested in our services, that their understanding is that they would never qualify for Medi-Cal based upon “advice” they received from their neighbors. In each case, the advice was wrong.

One person told me that she was told that her husband would not qualify for Medi-Cal because his IRAs were too high. I told her that her husband can have any amount of IRAs and still qualify for Medi-Cal. In fact, I told her that she, as the well spouse, can also have any amount of IRAs, and her husband could still qualify for Medi-Cal.  In addition, I told her that both her and her husband’s IRAs cannot be collected against by the State for Medi-Cal recoupment.

In another case, an individual told me that she was informed that she could not qualify for Medi-Cal because she owned her own home. This information is also incorrect. All she has to do is express a subjective intent in writing that she intends to return home, even if she is in a nursing home. We prepare that documentation for our clients as part of their estate plan. This intent to return home is also confirmed on the Medi-Cal application. In addition, I told her that as of January 1, 2017, her home cannot be collected against by the State for Medi-Cal recoupment, if her home is in her revocable living trust at the time of her death.

In another case, a person told me that he understood that he could not qualify for Medi-Cal because his and his wife’s income was too high. This advice is also erroneous because of the Medi-Cal rules regarding Share of Cost. The state pays qualified nursing homes $8,189 a month for a Medi-Cal recipient, minus a share of cost from the recipient. The $8,189 is usually much lower than a nursing home would be if you were to private pay. The recipient’s income goes to a share of cost to the nursing home, up to $8,189, minus a few small deductions from the recipient’s income. If the recipient is married, the well spouse can keep all of her income, without penalty. If the well spouse makes under $2,981 per month, the ill spouse’s income is allocated to the well spouse’s income to bring her up to $2,981 per month. As a result, many of our clients end up paying a very small share of cost, and sometimes nothing, to the nursing home.

The moral of the story is, do not listen to your neighbors regarding Medi-Cal eligibility.

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, Seniors and families through their 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Dec
21
2016
0

Medi-Cal Recovery Will Be Limited to Probate Estates after January 1, 2017

We have recently blogged about the new legislation Governor Brown signed, effective January 1, 2017, which changes the rules regarding recovery by the state for payments it has made to nursing homes for Medi-Cal recipients. Under the old law, the only way we could avoid recovery was to ensure that there was nothing in the Medi-Cal recipient’s name at the date of his death. Under the new law, for Medi-Cal recipients who die after January 1, 2017, recovery will be limited to those estates that are subject to probate under California Probate Law. Assets transferred from a revocable living trust of the Medi-Cal recipient will not be subject to recovery under California Law, because assets in a revocable living trust are not be subject to probate.

For example, if Mary the Medi-Cal recipient leaves her home to her son in her will, the home will be subject to a probate. If the state paid $30,000 to a nursing home for Mary, the state will be able to recover the $30,000 from the probate of the home. If the home was in Mary’s revocable living trust at the time of her death, the state will not be able to recover against the home, because the home will transfer from the trust to Mary’s son, and will not be probated.

The new rules, effective for Medi-Cal recipients who die after January 1, 2017, also exempt certain assets from state recovery. For example, property transferred prior to death, that are no longer in the beneficiary’s name, are not subject to recovery. However, any transfers must be made within the Medi-Cal regulations in order to avoid periods of ineligibility when applying for Medi-Cal. Also, the state cannot recover against your life insurance policy as long as you name one or more beneficiaries under your policy. If you do not name a beneficiary, or if the beneficiary you have named dies before you do, there will be a probate to determine who the beneficiary is. The state will be able to recover against the probate.

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, Seniors and families through their 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Dec
08
2016
0

John Hancock Has Dropped Traditional Long Term Care Insurance – But All Is Not Lost!

Forbes Magazine has recently reported that John Hancock is the latest insurance company to drop out of the traditional long term care insurance market. John Hancock has been one of the largest providers over the years, having sold some 1.2 million traditional long term care insurance policies. It is estimated that there are now less than 20 companies that are selling these traditional “use it or lose it” style of policies. Forbes says that, “This withdrawal signals what many financial planners, government officials, and financial service firms have known for years—that the United States is nearing a long-term care planning crisis.”

The reason that so many insurance companies have dropped out of the traditional long term care insurance market is because they are losing money on this type of policy. The insurance companies set initial premiums too low and they underestimated how long people would live. They also underestimated the cost of long term care and how much the cost of that care would increase over time.

Fortunately however, there are new insurance options that you can explore to help pay for your long term care. In 2010, an amendment to the Pension Protection Act (PPA) of 2006 was passed which can be very advantageous to Americans struggling to find ways to pay for long term care. As an example, many seniors own annuity contracts. Individuals who own annuities can now exchange those annuities, on a tax free basis, for Pension Protection Act style annuities that have long term care riders. The long term care rider in the new annuity contract can create multiples of the amount in the annuity that can be used for your care. For instance, $100,000 moving from your existing annuity into a Pension Protection Act style of annuity could create $300,000 in a rider to be used for your care. If you need help with two out of the six activities of daily living, you can “go on claim,” and the amounts distributed to you from the annuity for your care are distributed tax free.

You can also transfer money from any source into a Pension Protection Act style annuity or life insurance policy that has a long term care rider. The healthier you are, the easier it is for you to qualify for these new financial instruments. However, they are easier to qualify for than traditional long term care insurance policies because you are using your own assets to fund the long term care annuity or life insurance policy.

While you are updating your estate planning documents for long term care planning and asset protection with us, and if you are interested, we can help you explore these Pension Protection Act asset protection possibilities with you.

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, Seniors and families through their 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Nov
28
2016
0

‘Tis the Season for Stress’ – Special Challenges

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.

Nov
09
2016
0

2017 Medi-Cal Recovery Against Surviving Spouse

Governor Brown has signed new legislation, effective January 1, 2017, which changes the rules regarding recovery by the state for payments it has made to nursing homes for Medi-Cal recipients.  Under the present law, the state can recover against the surviving spouse or domestic partner of a Medi-Cal recipient, from whatever was in the Medi-Cal recipient’s estate that was left to the surviving spouse or partner by distribution or survival, as from joint tenancy or community property, or property left under a will to the surviving spouse. After January 1, 2017, if the Medi-Cal recipient is survived by a spouse or registered domestic partner, a claim is forever barred against that person. If the surviving spouse however receives Medi-Cal benefits, then his or her estate can be subject to an estate claim after his or her death.

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, Seniors and families through their 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Oct
10
2016
0

October, 2016 Medi-Cal Reference Guide

This Medi-Cal Reference Guide reflects some of the most frequently requested information we receive regarding Medi-Cal qualification.

Community Spouse Resource Allowance (CSRA) $119,220. This is the amount of non-qualified money or investments that the well spouse may keep. Either spouse may keep any amount of qualified assets, such as IRAs.

Monthly Maintenance Needs Allowance (MMMNA) $2,981. The well spouse is allowed to keep all of her income. The MMMNA is the minimum amount of monthly income that the well spouse is allowed to keep. If she is under this amount, the income of the ill spouse is applied to bring the well spouse up to the $2,981 amount. This calculation is set forth in the accounting that is presented with the application to Medi-Cal.

Divestment Penalty Divisor (APPR) $8,189. This is the monthly amount that the state pays to Medi-Cal nursing homes, minus a share of cost from the applicant. The APPR is also the gifting penalty divisor which is used in calculating periods of ineligibility for Medi-Cal, using the current 30 month look back period. So for instance, if the Medi-Cal applicant gifted $20,000 to a child in October, 2016, she would be ineligible for Medi-Cal for two months. Divide $20,000 by $8,189 and round down to two. The applicant would be ineligible in October and November, but would be eligible in December. There is no penalty for gifting between spouses.

Applicant Resource Allowance $2,000. This is the amount of assets that the applicant can keep, whether he is single or married.

Monthly Personal Needs Allowance $35. This is the amount of income the applicant can keep. The applicant is also given credit for his part B Medicare premium.

This off course is only part of the picture. Please feel free to contact our office for additional information.

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, Seniors and families through their 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 the older client and their families get their “Ducks in a Row” in order help them qualify for Medi-Cal and the VA Aid & Attendance Improved Pension benefit.

Sep
28
2016
0

Consider A Joint Checking Account With Your Parents

Many older people insist on handling their own financial affairs without assistance, for as long as as possible. This is admirable, but what if something bad happens to the older person, like a medical event which lands the older person in the hospital, and ready access to cash is needed? And, what if the older person begins to lose capacity and starts to make bad decisions with their money?

For access to immediate cash, a child or other loved one should be a joint owner on a checking account with the older person. If the older person is hospitalized and indisposed for a period of time, the child will be able to take care of finances, and pay bills for their parent. If the older person starts to make bad financial decisions, or is the subject of fraud, the child could shut the account down.

The bank and financial accounts, except for IRAs, should be transferred to the revocable living trust of the older person, with a child or other person named as successor trustee. These transfers to the revocable living trust are completed through the bank or financial institution, and these trust assets are reflected on the schedules of assets attached to the revocable living trust. The trust is set up so that if the older person loses capacity, a doctor’s note is obtained, and the child can act as the new trustee to control the assets for the benefit of the parent.

But what if the parent refuses to cooperate and do any of these things? You should try to maintain a dialogue of communication with the parent, and try to stay informed about what is happening with his daily life. If the parent becomes unusually defensive when asked about his finances, this should be a red flag. At this point, a geriatric social worker may be able to help you communicate with your parent. If the estate plan and finances aren’t properly set up, and the parent loses mental capacity, a court conservatorship may be required for you to be able to gain control of the accounts. The earlier the estate plan and joint checking account is set up, the easier it will be for all concerned.

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, Seniors and families through their 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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