Walnut Creek Elder Law Blog

People are living longer and are enjoying healthier lives for longer periods of time. George Burns, who lived to be 100 said, “I’m going to stay in show business until I’m the last one left!” I see attorney friends at the courthouse who are over 80. When I talk to them, I discover that they have no intention of retiring. Mickey Mantle once said, “If I knew I was going to live this long, I’d have taken better care of myself.” This is a funny line, but by exercising, we can expect to live long and productive lives.

 A report by the American College of Sports Medicine says that by the year 2030, there will be more than 70,000,000 people in this country who are over the age of 65. And, the fastest growing segment of the population will be people who are over age 85! But, we want to be healthy as we grow older.  

 Walking has been reported to be the easiest exercise to do, which also has the greatest benefits. According to a report by the Mayo Clinic, you can literally walk your way to fitness and good health. Several reports say that by merely walking 45 minutes per day, you can maintain a healthy weight, control blood pressure and type 2 diabetes, strengthen your skeletal system and improve your coordination and balance. Walking also helps to elevate your mood.

 You can easily create a walking routine. My wife walks around the Lafayette reservoir with her friends two times a week. They don’t go around the reservoir once, but two times! I am trying to catch up with her with my walking routine, by walking to downtown Walnut Creek and back for lunch every day. If I stretch it, I can have a 45 minute round trip walk. I believe that in the future, I will be one of the attorneys at the court house who is over 80, and in great shape!

 At the Law Offices of Michael J. Young, located in Walnut Creek, Ca, we talk about the Elder Care Journey with our clients, and in our workshops. Over the years, we have helped many families, and we can help you too with long-term care planning, asset protection plans, assistance with Medi-Cal and the VA, comprehensive estate planning, wills, trusts and powers of attorney.

 Michael J. Young, Attorney at Law, is an estate planning attorney and Medi-Cal qualification attorney in Walnut Creek, CA. 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. Mr. Young is certified by the VA and is a member of the National Academy of Elder Law Attorneys (NAELA).

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

You should get your ducks in a row long before a crisis occurs, especially where your health and finances are concerned. Many of our clients come to see us when a crisis is occurring. For instance, their spouse or loved one is in the hospital or has just entered a skilled nursing facility. At this stage the planning is usually more difficult, and we may be facing memory issues of the ill person. It may also be more difficult to preserve the home as a legacy for the clients’ beneficiaries. The home is many times our clients’ largest asset.

As part of long term care planning, we plan how various stages of care will be paid for and determine what assets and resources are available. We proceed to get our ducks in a row to protect assets. We also line our ducks up for obtaining Medi-Cal to pay for the skilled nursing facility and the VA Aid & Attendance Pension Benefit to pay for in home care or an assisted living facility. Gifting and spending issues for Medi-Cal and VA are considered. The longer we have to do long term care planning, the easier it is for all concerned. In addition, your peace of mind can be assured earlier on. 

FAMILY DYNAMICS: When we are able to do pre-planning for our clients, we can better take into account issues concerning family dynamics. We need to know which family members are helping the ill person, and who can be relied upon when help is needed. We can offer suggestions for the well spouse for her care for the ill spouse when he comes home. We will be better able to find out if there is serious infighting and resentments among family members. When a crisis occurs, these dynamics become intensified.

LEGAL DOCUMENTS: Are the legal documents up to date? If they are, you are in a tiny minority. If you have not gone to an elder law attorney in the last several years, your documents are probably not up to date. There is specialized language that can be utilized for asset protection and for government benefits planning in the various documents. For instance, if we want to preserve the home and protect it from a Medi-Cal lien, and the ill person has severe memory issues, we may not be able to proceed to transfer the home to the well spouse or a child without going to court. Most revocable living trusts and financial durable powers of attorney do not contain this specialized asset protection language.

Pre-planning will also allow us to discuss any changes that may be needed in the trust, will, financial durable power of attorney and other estate planning documents. Family dynamics are always changing with the occurrence of deaths, divorces, children who are themselves in need of care, second marriages, etc.

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.  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

Most of our clients make it well known in their long term care plans, that if they become ill, they wish to be taken care of at home for as long as possible. My parents made a pact with each other that if either of them had to go to “rehab”  as my mother called it, which is a skilled nursing facility, that they wanted to return home and be taken care of at home. My mother died at home under hospice care. Your elder law attorney can make these desires known in your elder care estate planning documents. In fact, at the Law Offices of Michael J. Young in Walnut Creek CA, we have our clients sign a separate “Intent To Return Home Document,” which states that if they have to go to a nursing home, it is always their intent to return to their home.

Most of our clients also make it known in their long term care planning documents that if they have a terminal illness, and they would only survivie by being hooked up to machines, that they would rather instead, be allowed to die with dignity, and not be hooked up to machines.

Many people do not know that hospice care can take place at home, and that hospice care professionals can come to your home. Hospice is also often paid for by Medicare or private insurance. To qualify for hospice, a physician must confirm that in their opinion, their patient is likely to die within a six month period. This is generally all that is required. I remember how relieved my siblings and I were when my mother was on hospice at home, and various nurses, social workers, doctors, priests and other aides came into my parents home to attend to my mother. All of us benefitted from this process. 

The hospice process allowed my mother, my dad, myself and my siblings to  to appreciate our last days together with my mother, outside of the traditional, more hectic hospital atmosphere.  

For more information about hospice, long term care planning, asset protection, Medi-Cal qualification and the VA Aid & Attendance Pension Benefit, please feel free to contact Michael J. Young at The Law Offices of Michael J. Young in Walnut Creek, CA. www.youngelderlaw.com www.walnutcreekelderlaw.com

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.  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

Many of our older clients are being taken care of by their spouse, or by one or more of their adult children or another family member. The older person of course appreciates the help, and the caregiver feels gratified in their role. The caregiver may also feel extremely guilty if they don not help. The care often takes place in the older person’s home or in the home of a child. Also, spouses and children will at times spend nights in their loved one’s care facility to help with the care.

But, being a caregiver for an older person can be a 24 hour a day, seven days a week job. And, the work can be exhausting. We receive calls all the time from family members or from spouses, who tell us that they can’t do it any more. I remember when my brother and I were trying to take care of our elderly father. My brother and I finally got to the point where we could barely pick our Dad up to help maneuver him to the bathroom. Toileting issues were difficult for everybody. Our Dad also would not cooperate with taking his medications, and there were other problems. My brother and I finally decided that we did not have the requisite skills to properly care for our Dad any longer, but we suffered with the guilt associated with making this decision. I do remember being amazed however, when we hired an experienced in-home care giver for our Dad, how the care giver, because of his training, could easily move our father around.

If you find yourself in the caregiver role, please keep in mind that your own health can suffer as the result of helping your loved one. How many times have we heard of the well spouse passing away from exhaustion caused by her helping her ill spouse? Please give yourself a break. Call other family members and friends to help you. You can utilize adult care services, where you take your loved one to spend several hours during the day. You can also hire a caregiver, and there are many fine agencies in the area who have qualified people who can help you.

Please feel free to contact us if you have questions along these lines, as we may have suggestions for help you can receive within the elder care community 

At the Law Offices of Michael J. Young in Walnut Creek, for many years now, we have helped clients and their families with questions such as these. We also continue to help seniors keep what they have earned. We do this through the preparation of asset protection plans, long term care plans, revocable living trusts, powers of attorney and wills, and assistance with applications for Medi-Cal and the VA Aid and attendance Pension Benefit.

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. He is Medi-Cal attorney and is VA Certified.  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

     Does your Financial Durable Power of Attorney (financial DPA) contain asset protection and government benefits qualification language? It probably does not, unless it was prepared by an elder law attorney. If you lose mental capacity, your spouse or children may be prevented from gifting your assets to themselves, in order to help you qualify for Medi-Cal or for the VA Aid & Attendance Pension benefit.

If your financial DPA contains any gifting language at all, it is probably limited to the annual gift tax exclusion amount, which is $13,000 per person this year. This language is usually of little help for Medi-Cal qualification. In addition, the language will probably not allow for gifting to the ”attorney in fact”, who is the person acting for you.  Specialized language is required under the law in order to allow for any gifting to the person acting as the “attorney in fact.” This specialized language usually does not appear in a “regular” financial durable power of attorney.

For instance, the home can easily be established as an exempt asset for Medi-Cal qualification. If the home is in the name of the Medi-Cal applicant who has lost mental capacity, and we want to transfer the home to a child and reserve a life estate to the applicant in order to avoid a Medi-Cal lien, most financial durable powers of attorney will not allow for this. Most financial durable powers of attorney will allow a transfer only upon receipt of consideration from a sale for fair market value of the real property.

To give another example, the Medi-Cal applicant, under the regulations, is allowed to own a life insurance policy, with a pay on death figure in any amount. However, in order to qualify for Medi-Cal, the applicant’s life insurance policy cannot have more than $1500 cash value. If there is a $5,000 cash value, for instance, the Medi-Cal applicant cannot qualify. The remedy is to liquidate the cash from the policy and then gift it out. What do you do however if the Medi-Cal applicant has lost capacity? We need to then look at the powers in the financial durable power of attorney. However, although most financial DPAs may allow for a liquidation of the cash value, they will not allow you to gift the cash out. The Medi-Cal applicant can only retain $2,000 in non qualified accounts, and if the cash from the policy cannot be gifted, it would have to be spent before qualification for Medi-Cal can be obtained.

The financial DPA in an elder law context, is also coordinated with the revocable living trust of the applicant. There should be specialized asset protection language in the trust, which refers to the financial DPA. This specialized language will allow the attorney in fact to “stand in the shoes” of the maker of the trust, for all purposes, including for Medi-Cal qualification. This technique is allowed by law, and provides the greatest amount of flexibility for the family who is helping the older person who has lost capacity, when we are applying for Medi-Cal.

Remember that if existing estate planning documents are not updated before the older person loses capacity, we may have to resort to a court proceeding to modify the language in the documents. This process is expensive and is not always guaranteed. The best approach is to pre-planning, and to have your estate planning documents updated as early as possible by a qualified elder law attorney, who practices full time in this area of the law. 

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. Mr. Young advises clients regarding Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is a Concord Elder Law Attorney with offices in Walnut Creek, CA.

I practice Elder Law and represent the older client and their families. When clients come to see me, their concerns are not so much about what happens when they die, but more about ’What happens if they don’t die.’

Of course, they want to make sure that their assets pass to their family with a minimum of expenses and taxes. But the bigger and more complicated question is, “What happens if I don’t die?” As we know, Americans are living longer all the time. The infirmities of old age may require that we have in home care assistance, or go to an assisted living facility, board and care home or eventually a to a nursing home.  We are of course concerned about how we pay for these costs. A regular estate plan does not address these needs. An elder law attorney can prepare a long term care plan for you, and address these needs. He will also address the concern of passing assets to their family.

To put it another way, a regular estate plan insures that if you die, your assets will be passed on to your family the way you want. The operative word is “if”. A  regular estate plan will not help preserve assets so that hopefully there will be something left when you die to pass on to your family. As we know, the assets of the older client could be depleted by a nursing home stay or lengthy illness, which could leave their spouse or heirs with nothing.  

If you have sufficient assets to pay for long-term care or nursing home costs without running out of funds, then a regualr estate planning attorney may be all you need. However, if you cannot afford the cost of a lenghty nursing home stay, of around $90,000 per year or $180,000 per year for a couple, or more, then an elder law attorney would be able to help you.

For a real life example, Mary and Jim have about $300,000 in assets and a home worth around $500,000. Jim needs assistance and uses a wheelchair. Mary has been providing for his care, but recently has shown signs of forgetfulness and confusion. She has been diagnosed by her doctor as having early signs of dementia.   

An estate plan is of course important to Jim and Mary, but this won’t help them deal with the problems they are presently dealing with. They want to tackle the issue of how they will be able to afford the cost of nursing home care should either one or both of them need it. They want to establish how they will be taken care of should Mary’s dementia become more advanced. They want to find out if if they can stay in their home with assistance.

This couple needs a life plan, specific to them, to meet their needs for the future. Jim and Mary need to seek the advice of an elder law attorney.

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. Mr. Young advises clients regarding Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is a Concord Elder Law Attorney with offices in Walnut Creek, CA.

The VA Aid and Attendance Improved Pension Benefit can help pay for the costs of in home care, assistant living facilities and board and care homes for the older wartime veteran. A single veteran can receive up to $1,644 per month, or $19,736 per year. A widowed Spouse can receive up to $1,056 per month or $12,681 per year. This pension benefit is considered non service connected, meaning that you do not have to be suffering from a wartime injury to obtain the benefit.

This VA program is needs based, and your elder law attorney can help you qualify and apply for this VA benfit. When we plan for Aid & Attendance, we also plan for Medi-Cal qualification at the same time. The Medi-Cal qualification rules regarding gifting and transfer penalties must be taken into account when you plan for Aid & Attendance. If you do not do so, you may become qualified for Aid & Attendance, but disqualified for Medi-Cal. Medi-Cal pays for nursing home costs, which can run $7500 per month or more in Contra Costa County.

As part of the Aid & Attendance Improved Pension Benefit qualification, the VA now considers the veteran’s life expectancy in determining how much a claimant can retain in assets. If the veteran has over $50,000 in assets, not including the home, you may want to pursue transfers of assets and asset protection, and coordinate any such transfers with Medi-Cal transfer regulations. You should not transfer assets without the help of your elder law attorney, who is also certified by the VA.  

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for your particular situation. 

Written Michael J. Young, lawyoung1@gmail.com, 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.

In California, civil and criminal Elder Abuse Laws pertain to persons 65 years of age or older. Under the criminal statutes, elder abuse can occur when someone causes the elder to suffer mentally or physically. Under the civil statutes, abuse can mean neglect, causing financial abuse, abandonment, and physical harm or mental suffering. In addition, under the civil statutes, elder abuse can mean deprivation of care by the custodian of goods or services that the elder needs to avoid mental suffering or pain.

There are red flags to be on the outlook for regarding possible elder abuse, which many of us have seen. One red flag could be that the older person is not given the opportunity to speak for herself. Another red flag could be that the care giver or family member expresses anger toward the elder. A painful red flag is the isolation socially, of the older person. If you see signs of elder abuse, you should report it.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for your particular situation. 

Written Michael J. Young, lawyoung1@gmail.com, 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.

We do Alzheimer’s planning in our lawfirm. This type of long term care planning includes, in part, the preparation of estate planning documents. These specialized documents contain required, updated language for asset protection and government benefits planning regarding Medi-Cal and the VA Aid and Attendance Improved Pension Benefit. Part of the planning may also include asset protection of the home and monetary assets.  

However, a big part of Alzheimer’s planning involves working with the family of the loved one who is afflicted with this disease. Alzheimer’s disease can last many years, and our relationship with the families we represent can be very long. As an example, my mother in law, who has Alzheimer’s disease, and who turns 90 next month, has been in a board and care facility for the last 10 years. Other than the disease, she is fairly healthy for a 90 year old.  She does not recognize her three “girls”, but she is being well cared for.  

Currently, there is no cure for Alzheimer’s, but there are treatments and services that will make life more bearable for the Alzheimer’s patient, and his or her family.  We offer  support for our clients and their families, regarding resources for care as part of the  long term care planning. We also encourage our clients and their families to become knowledgeable about the disease. For additional information regarding Alzheimer’s planning, please feel free to contact our office.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for your particular situation. 

Written Michael J. Young, lawyoung1@gmail.com, 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.