May
31
2017
0

California Still Has A 30 Month Look Back for Gifting

California still has the 30 Month Look Back Penalty Period for Gifting. There is a federal law known as the Deficit Reduction Act (DRA), which has a 60 month look back penalty period. However, California has not to date implemented that law. Medi-Cal eligibility workers are required to use the 30 month look back period.

When you apply for Medi-Cal, the application asks whether you have given away any countable, or non-exempt assets within the last 30 months. If you have made such a gift without consideration, or for less than fair market value within the 30 months prior to making the application, a penalty period of ineligibility may be imposed. Transfers of any kind between spouses are exempt and do not create any periods of ineligibility.

The penalty transfer amount, which is also known as the monthly average nursing home private pay rate, is presently $8,515. The penalty period starts when the transfer is made, as opposed to when you make the Medi-Cal application. To calculate the penalty period, first check to see if it was made more than 30 months prior to making the Medi-Cal application. If more than 30 months have passed, there is no penalty.

Lets assume however that you have gifted $50,000 to your grandchild on October 1, 2016, and that you are applying for Medi-Cal on January 1, 2017. The gift was made 3 months prior to the application, so the 30 month look back penalty rule applies. You then divide $50,000 by $8,515, which reflects 5.87, which is rounded down to 5 months of ineligibility, starting from the date of the transfer. As a result, you would be ineligible for Medi-Cal during the months of October, when the gift was made, November, December, January and February, but you would be eligible March 1, 2017. There are of course other rules to consider, which may be to your benefit, which your elder law attorney can help you with.

Please feel free to contact our office should you need help with applying for Medi-Cal, and asset protection. 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
17
2015
0

Beware of Arbitration Clauses

The New York Times has examined, in a series of articles, the problems with mandatory arbitration agreements in consumer contracts. The articles examine “… how clauses buried in tens of thousands of contracts have deprived Americans of one of their most fundamental constitutional rights: their day in court.”

The NY Times series discusses how consumers are often, unknowingly, forced to have their disputes heard by business-friendly arbitrators, without the benefit of courts or judges. As a result, the claim resolution may end with business biased results, without accountability through the justice system.

Unfortunately, nursing homes usually have arbitration clauses in their admission agreements. When the resident signs an agreement upon admission that has an arbitration provision, the resident agrees to give up their constitutional right to have a dispute decided in court, with a judge and jury. This arbitrator’s decision is final, binding, and with no right to appeal.  Arbitration is expensive, with the arbitrator receiving between $400 and $1,000 an hour for his time. Also, studies have shown that arbitrators have a pro-business bias, and that consumers receive less money from arbitration awards, than through the court process.

It is illegal under California law to force a prospective nursing home resident to sign an arbitration agreement as a condition of admission. Also, the state requires that the arbitration agreement be separate and apart from the admission agreement. So, the best way to preserve your right to the judicial system is to not sign the arbitration agreement. Our financial powers of attorney do not give powers to the attorney in fact to sign an agreement for binding arbitration.

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.

Apr
28
2014
0

Special Needs Trust & Inheritance & Workshop 5-8-2014

Special Needs Trusts and Inheritance:

Q: Our father just passed away and left $400,000 in his revocable living trust to myself and my brother. My brother is on SSI and will lose his benefit when he receives the inheritance. What should we do?

 A. There is a remedy for this problem when someone dies, and their revocable living trust does not have a special needs trust provision for a special needs beneficiary. Under the law, the revocable living trust became irrevocable when your father died. As a result, it is too late for you to amend the trust to include a Special Needs Trust for your brother.

 However, the California Probate Code does allow the Court to amend the trust to include a special needs trust upon a petition to the Court from the special needs beneficiary. The special needs beneficiary files a petition with the court requesting that the trust be modified to include a special needs trust for himself for his part of the inheritance. Your brother, who will be the petitioner, will tell the court in the petition that had your father gone to an elder law attorney who would have advised your father about the addition to his revocable living trust of a special needs trust for your brother, that your father would have requested that addition.

The courts have been willing to grant these petitions. After the court signs its order for the modification of your father’s trust, the inheritance for your brother will flow into his new Special Needs Trust and he will not lose his public benefits. Your Walnut Creek Elder Law Attorney can advise you and help you in the preparation of a petition for the modification of a revocable living trust after the maker of the trust dies.

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, special needs trusts, 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.

Nov
04
2013
0

Peace of Mind Now For Baby Boomers and Seniors Facing Retirement

A big issue now facing Baby Boomers and seniors is, surviving in retirement. We should have our “Ducks In A Row” now regarding health and financial issues, and there are many things we can do.

 Most of our clients do not have long term care insurance to pay for a stay in a nursing home. If they do, the policy would probably not pay the full cost. Fortunately however, California has Medi-Cal, which will pay for a stay in a nursing home provided that you qualify. You can now set up a long term care plan through your elder law attorney, as part of your estate plan, to provide for asset protection and qualification for Medi-Cal. For veterans, the plan will also help for qualification for the VA Aid & Attendance Pension Benefit to help pay for in home care and assisted living facilities. Your plan will also confirm your overall desires regarding how your assets will be spent for your care at home and otherwise. If you lose capacity, your loved ones will have the authority to follow through with your plan.

 The home is often our clients’ largest asset. You can take steps now through your estate planning documents to assure that your home will pass to your loved ones as a legacy, without a Medi-Cal lien, so that the state will not be able to recoup the nursing home payments it has made for you.

 Many Baby Boomers’ do not have sufficient savings to live on through retirement. The stock market has hurt many portfolios in the past. Fortunately however, Social Security is still in existence. Some analysts say that the program can pay for benefits for the next 25 years for the general populace. There also seems to be a consensus of opinion, that any changes in the law should not affect Baby Boomers, and that the fund will be available for them. Although you can begin taking benefits at age 62, this could be a 25% reduction of what you would receive if you waited until you are 66. If you wait until age 70, this could raise your benefit by 8%, so wait longer if possible.

 For additional peace of mind, you can change your life style just a little bit, and try to keep more of what your earn. I recommend reading The Millionaire Next Door by Thomas J. Stanley in this regard. Stanley gives examples of how changing your lifestyle somewhat, and giving up certain luxuries, will allow you to put more money into your retirement accounts on an ongoing basis.

 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.

Oct
08
2013
0

What Can The State Recover After I Die?

If you die after having been on Medi-Cal, the State will try to recover from your estate what they have paid out for your benefit. If there is nothing left in your estate, there is nothing for the State to take. If your home is still in your estate when you die, it could be subject to State revocery. Your revocable living trust does not protect your home from State recovery.  If you transferred your home prior to your death, following the Medi-Cal regulations, it would not be subject to recovery by the State upon your death.  If you transferred your home and reserved an irrevocable life estate, the home would not be in your estate when you die, and not subject to recovery. The life estate would disappear upon your death, and the State does not pursue recovery against reserved irrevocable life estates.

The State will not pursue recovery against the surviving spouse of a deceased Medi-Cal beneficiary. After the surviving spouse dies however, the State can pursue recovery against any property received by the surviving spouse through distribution or survival from the Medi-Cal beneficiary spouse.

If the Medi-Cal recipient is survived by a minor child under the age of 21, or if there is a blind or disabled child of any age who survives the Medi-Cal beneficiary, there can be no claim for recoupment by the State.

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.

Oct
08
2013
0

IRAs and Medi-Cal Qualification

The Medi-Cal applicant can have any amount of IRAs that are in his name, and still qualify for Medi-Cal. For instance, the applicant could have $200,000 or more in his name in IRAs, and still be eligible for Medi-Cal. IRAs and work related pension funds are also exempt from Medi-Cal qualification. The only requirement is that the Medi-Cal applicant must be receiving periodic payments of interest and principal from the IRA. If you are receiving minimum required distributions (RMDs) under the IRS rules from your IRAs, then you have probably satisfied this requirement.

In addition, the IRAs owned by the well spouse of a Medi-Cal applicant are also exempt for Medi-Cal qualification. The IRAs owned by the well spouse are also not included as part of the community spouse resource allowance (CSRA). The CSRA, or the amount the well spouse can retain is $115,920.

After the Medi-Cal applicant dies, the State cannot recover from his IRAs or from his work-related pension funds, provided that a pay on death beneficiary is named. If the beneficiary of the IRA is the estate of the applicant, the State may be able to recover against the fund. Beneficiary designations on IRAs and other assets should be reviewed as part of the long term care planning process with your elder law attorney.

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.

Oct
07
2013
0

Medi-Cal and Life Insurance

An individual can have any amount of Term Life Insurance, and still qualify for Medi-Cal. Term life insurance has been defined as life insurance that pays a benefit in the event of the death of the insured. So if you have a life insurance policy that pays $10,000 upon your death to your son for instance, that policy is exempt for qualification from Medi-Cal. Also, after the Medi-Cal applicant passes away, the $10,000 is paid to the beneficiary son, and there is no recovery by Medi-Cal. Problems can arise however, if the Medi-Cal recipeint receives a benefit from a life insurance policy, upon the death of his spouse for instance. This event could create immediate disqualification for the Medi-Cal recipient. As a result, when we do long term care planning, we take this possibility into account.

Whole life insurance policies are treated differently for Medi-Cal qualification. Whole life polices cannot  have a total face value, or cash value, that exceeds $1500. The cash value of the policy that exceeds $1500 is counted as an asset toward Medi-Cal qualification. An individual can not have more than $2,000 in non-qualified funds in order to qualify for Medi-Cal. As a result, the cash value of the Medi-Cal applicant’s whole life policy in excess of $1500 will have to be reduced and then transferred in order to create qualification. If the applicant has lost mental capacity, the financial durable power of attorney, provided it has the appropriate language, would be relied upon to liquidate the policy and then to possibly gift the excess amounts, in order to create Medi-Cal qualification. All of these issues should be taken into account as part of long term care planning.   

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.

die after having been on Medi-Cal, and your term life insurance policy pays a benefit in the amount of $10,000 to your son, for instance .

Jul
19
2013
0

Baby Boomers Predict The Future!

Baby Boomers Predict The Future!

Wouldn’t it be nice to be able to predict the future for us Baby Boomers, and start planning for it! But we do know certain things about our future …

  •  On average, 10,000 people are turning age 65 every day.
  • It is predicted that at least 70% of people over age 65 will need long-term care services.
  • Currently, the median cost of long-term care for one year in the United States is $83,950.00.
  • In 30 years, when the last of the Boomers reach age 65, the price of long-term care is expected to be at an all time high of $190,000 per year.
  • Currently, the average amount of time a person needs long term care is 2.7 years.

 As my grandson would say, “OMG!”

As a senior estate planning attorney, and a Baby Boomer, we need to ask ourselves what we can do to plan for our long term care. GE Long Term Care Insurance conducted a study and found that nursing home costs are rising at a rate of 5% every year, outpacing inflation. With the rapidly growing elderly population this is the simple law of supply and demand.

 So, what can we do to prepare for the second half of life? If you or your spouse are age 65 and one of you goes into a nursing home, do you have a spare $513,000 lying around to pay for your or your spouse’s care.

 We still have Medi-Cal in California, which pays for the cost of a skilled nursing facility. The VA Aid & Attendance Pension benefit is still available to help pay for in home care and assisted living facility costs.

But you need to “get your ducks in a row” ahead of time to plan for qualification for these benefits. For starters, Baby Boomers are now taking advantage of modern asset protection and government benefits planning qualification techniques, which are incorporated into their estate planning documents. Also, one of our main goals is to preserve our homes for our children, without a lien for payback to Medi-Cal. With the modern language in your estate planning documents, if you become incapacitated, your spouse or loved one can follow through with qualification and asset protection techniques under the Medi-Cal and VA regulations.  

This information is not to be taken as legal advice, and you are encouraged to see your senior estate planning attorney before attempting any of these techniques. 

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.

Apr
01
2013
0

Now Is The Time To Plan For Incapacity

My mother, who was a WWII veteran and the mother of five wild boys and a composed girl, used to tell me that the only thing that she really feared in life was losing her mental capacity. When I was a younger attorney, and my parents were younger, I prepared their estate plan, which was the typical plan designed for what happens when you die. When my parents got older and began to suffer the maladies of older people, I prepared a new estate plan for them, with a focus on not so much what would happen when they died, but on what would happen if they did not die, became ill and needed help with their care. My parents were adamant about having a plan that left something, especially their home, to their six children.

Estate planning and planning for mental capacity issues is very different for the older client. As a baby boomer, and after having helped take care of my aging parents, and after counseling many older clients and their families, my perspective as an estate planning attorney has changed over the years, and is now geared toward setting up a plan for the care of my clients, and protection of their assets, as well as planning for when they die.

Incapacity involves the inability of someone to make decisions regarding their personal and financial affairs. For many of our clients, diseases such as Parkinson’s and  Alzheimer’s have lead to mental incapacity. For other clients, there has been an event causing a brain injury leading to mental capacity. Many of our clients have dementia with no disease related diagnosis. Our recommendation is that anyone who is a baby boomer or older, should have an updated estate plan with an emphasis on asset protection and government benefits planning. You should also plan on how you or your fiduciary can get your ducks in a row to be able to protect your assets, such as your home, and obtain Medi-Cal to pay for your nursing home care, and the VA Aid and Attendance Pension Benefit to help pay the cost of in home care and assisted living facilities if needed.

You will need to decide who will be able to manage your financial affairs if you cannot. These individuals are usually trusted family members, but can also be friends. They can also be professional fiduciaries, who are licensed by California’s professional fiduciary bureau. You will also need to decide on who will make decisions for your regarding your health care, if you cannot do so. One issue to decide is whether you want to be on life support machines if you are in an irreversible condition and are only being kept alive by machines.

Michael J. Young, your elder law attorney in Walnut Creek, CA can help you design a plan to meet your needs as you get older. The plan will involve getting your ducks in a row for asset protection and government benefits planning. There are many options that your senior law attorney can help you with. Keep in mind that if you lose your mental capacity and what to protect assets by way of transferring your assets to your spouse or children, as is allowed under the regulations, you will not be able to do so if you have a traditional estate plan. In that case, we may have to go to court to amend your estate planning documents to provide for asset protection.

The information contained herein is not to be taken as legal advise, and you are advised to see your elder law attorney before attempting any planning or transfers of assets on your own. This article is written by elder law attorney Michael J. Young. Mr. Young, whose office is in Walnut Creek, CA is an elder law attorney, senior law attorney, Medi-Cal attorney and probate attorney whose office is in Walnut Creek, CA. Mr. Young is certified by the VA and is a member of the National Academy of Elder Law Attorneys (NAELA). For additional information, please visit our website at  www.WalnutCreekElderLaw.com LawYoung1@Gmail.com Our address is at 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, Walnut Creek, Concord, Danville, Pleasant Hill, Brentwood, Antioch, Clayton, etc. Mr. Young advises clients regarding Medi-Cal, Probates, Probates with Real Estate, Medi-Cal, nursing home costs, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney. Senior Law Attorney. Walnut Creek Medi-Cal attorney.

Mar
25
2013
0

Can The State Take My Home If I Die After Having Been On Medi-Cal?

One of the most frequently asked questions I receive as an elder law attorney in Walnut Creek, CA is, “Can the State of California take my home if I die after having been on Medi-Cal?”

 The state will not actually take your home. But your home, if it is in your estate when you die, can be subject to a claim by the state after your death for the amounts the state has paid for your care. This claim will be paid when your property is sold from your estate. The state can only recover for the amounts they have actually paid for your care. Presently the amount they can recover is $7,092 per month, minus the share of cost that you have contributed to a nursing home. This amount of course would be less than what you would have paid as a private pay patient in a nursing home.

 In order to establish your home as an exempt asset when you apply for Medi-Cal, you must confirm your intent to return home if you have entered a nursing home. There is a question on the Medi-Cal application which allows you to establish this intent.

 The state will not pursue a claim for reimbursement against a surviving spouse of a Medi-Cal recipient as long as she is still living in the property. When she dies, the state will pursue the claim against any assets she received from her spouse, including the home, if he was a Medi-Cal recipient. In addition, the state cannot pursue a claim against the home if the Medi-Cal recipient is survived by a minor, blind or disabled child.

 There are techniques allowed by the state for protection of the home from a claim after death. For instance, we can “transmute” or transfer the ill spouse’s interest in the home to the well spouse during his life, and reserve a life estate to the well spouse. We can also transfer the home from a single Medi-Cal recipient to his children, for instance, and reserve a life estate to the Medi-Cal applicant. Transfers such as these must be done correctly and pursuant to the regulations in order to avoid a state claim, and in order to avoid capital gains issues. Please be aware that there is no protection for the home if it is in the revocable living trust of the Medi-Cal recipient when he passes away. Asset protection planning must be accomplished while the Medi-Cal recipient has good mental capacity. Otherwise, we may have to go to court to correct the problem. Do not rely on the idea that your financial durable power of attorney and revocable living trust will allow you to make these transfers during mental incapacity. The estate planning documents require specialized language in order to do this, and most plans do not have the requisite language.

 Keep in mind that the state cannot make a claim against assets that are not in your estate when you die. You will need the help of your elder law attorney aka your asset protection attorney in order create a long term care and asset protection plan for you. 

 Written Michael J. Young, elder law attorney, Medi-Cal attorney, senior law attorney and probate attorney in Walnut Creek, CA and former in-house counsel for title insurance companies. Mr. Young is a Medi-Cal attorney and is VA Certified. He is a member of NAELA www.WalnutCreekElderLaw.com LawYoung1@Gmail.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. Mr. Young advises clients regarding Probates, Probates with Real Estate, Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is an Elder Law Attorney and Probate Attorney with offices in Walnut Creek, CA. Walnut Creek Elder Law Attorney, Walnut Creek Probate Attorney. Senior Law Attorney

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