Walnut Creek Elder Law Blog

As an elder law attorney, I like to ask my clients to tell me stories about their lives. One of the funniest stories was told to me by a lady in her 90’s. She told me that on one Saturday morning at about 6:00 a.m., she and her husband could hear her two boys, who were about three or four years old, whispering to each other at the foot of their parents’ bed. Looking at their parents in bed, one child asked the other, “Which one do you like better?” I thought this was hilarious.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

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, who also advises on Medi-Cal qualification, asset protection and VA Aid & Attendance qualification, serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

I always ask my clients if they are veterans, so that we can talk about planning for the VA Aid & Attendance Pension Benefit. An older couple came to see me about Medi-Cal planning, and the husband told me that he was in the Navy during WWII, stationed in San Diego. The wife told me that she is not a veteran, but she asked me if I have ever heard of Rosie the Riveter. I said yes, of course, and she said that was her! She admitted though that she was not the famous Rosie on the posters. She told me that she worked for an aircraft company in Southern California during WWII, and worked her way up to an inspector of electrical wiring for military aircraft.

The husband could of course be eligible for the Aid and Attendance Pension Benefit. In addition, if he were to pass away, his wife could be eligible for this benefit, as the surviving spouse of a war time veteran.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

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, who also advises on Medi-Cal qualification and asset protection, serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

The California Welfare and Institutions Code Section 15610.07 defines elder abuse as follows:

“Abuse of an elder or a dependent adult” means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

In addition, the California Penal Code, Section 368 provides for criminal penalties for elder abuse, against someone who willfully causes or permits an elder to suffer, or inflicts unjustifiable physical pain or mental suffering on the older person.

Examples of elder abuse could include physical injury, broken bones, unusual bruises and, bedsores. In addition, social isolation, abandonment and financial abuse can be forms of elder abuse.

Persons who provide care for elders, whether licensed or not, are mandated to report elder abuse.  In addition, any private citizen can report elder abuse.  You can report abuse by calling (APS) Adult Protective Services or by calling 911.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law and asset protection 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. His practice includes Medi-Cal qualification for nursing homes, elder law, asset protection and estate planning for seniors.

http://lawyoung.byoaudio.com/files/media/7452d421-cf4f-8f57-c8f8-e1ee605d10e0.mp3

 Parkinson’s Disease has affected all kinds of people. Pope John Paul II. Michael J. Fox. Even Hitler. But you don’t need to be advanced in age or even genetically predisposed to suffer from Parkinson’s Disease. It’s not inher­ited. And it’s not just confined to seniors. But most people tend to suffer in isolation due to the embarrassment it causes.

 You may have a loved one in your family, who you suspect of having Parkinsons disease. This disease can have many devastating consequences, which go beyond the obvious physical and psychological strains. Many of these consequences can include financial and legal grief.

People with Parkinsons disease and their families are concerned about future medical costs and the possible loss of assets, including the home and savings, etc. We are always encouraging families and their loved ones to address their legal issues that NEED TO be addressed as soon as possible, even when the disease is merely suspected, and not necessarily diagnosed. In my workshops, I talk about the long term planning that is needed for this disease.  I remind people at the workshops that when you are out of  money, you are out of options. As an elder law attorney, I see this all too many times in my practice, particularly the desire to do something very late in the game, which can make planning much more difficult. 

To help you in this regard, I have prepared a white paper entitled:

“9 Steps to Peace of Mind for the Parkinson’s Family”.

If you would lilke to obtain a copy of this pamphlet, please contact our office at 925-256-0298, or send an e-mail to mike@walnutcreekelderlaw.com, requesting a copy.

            By, Michael J. Young elder law attorney in Walnut Creek, CA.

            Mr. Young is an elder law attorney who practices in the east bay. His office is in Contra Costa County, located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA. Mr. Young has East Bay elder law clients who live in such towns as Brentwood, Antioch, Concord, Alamo, Walnut Creek, etc.  Many of his clients are concerned about how they will pay for their nursing home costs. Mr. Young prepares long term care plans for his clients, which may include utilizing Medi-Cal and the Veterans Administration Aid and Attendance Benefit for wartime veterans. www.WalnutCreekElderLaw.com  Mike@WalnutCreekElderLaw.com 925-256-0298

In the seminars presented by Walnut Creek elder law attorney Michael J. Young, www.WalnutCreekElderLaw.com, he talks about the Veterans Affairs Aid & Attendance Improved Pension Benefit, which is paid to wartime veterans or to their surviving spouses. The program is asset and income based, as is Medi-Cal. However, the two programs have different qualification rules. The VA program is often utilized to pay for in-home care, assisted living facilities and board and care facilities. Medi-Cal is most often used to pay for skilled nursing facilities.

The VA program is “non-service connected,” which means that the disability does not necessarily result from being in the service. If you are over age 65, you are deemed to be “disabled” by the VA, and you could be eligible for the lowest amount of the benefit. If you are also housebound, you could be eligible for the next higher amount. And, if you are also in need of help with various activities of daily living, you could be eligible for the highest amount of the benefit.

 The veteran must have been discharged from the U.S. armed forces, with anything but a dishonorable discharge. Also, the veteran must have served 90 days continuously in the military, one day of which had to be during a war time. The periods of war are as follows:

•  WWI: April 6, 1917 through November 11, 1918
• WWII: December 7, 1941 through December 31, 1946
• Korean War: June 27, 1950 through January 31, 1955
• Vietnam War: August 5, 1964 through May 7, 1975
• Persian Gulf War: August 2, 1990 and continuing

The VA application, if prepared by someone other than the veteran, must be prepared “pro bono,” that is, without charge, and by someone who is accredited by the VA. An elder law attorney who is accredited by the VA is best equipped to help you with the planning and application for the VA benefit. He would also prepare an integrated long term elder care plan for you, that would take into account all of your assets, plus the VA and Medi-Cal benefits.

 Caveat: Beware of non-attorney individuals and organizations who offer to help with the VA applications. First check to see if they are accredited by the VA, which is required by federal law.  Also know that VA applications are prepared pro bono, that is, without charge. You may be advised by an organization to gift all of your assets away in a large gift, which can create immediate eligibility for the VA program, but ineligibility for Medi-Cal for a long period of time. Medi-Cal and VA have different rules. Finally, if the person or organization who wants to help with the VA application wants to sell an annuity to you as part of the process, you most certainly should get a second opinion.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

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 receive calls from people asking us if they need to sell their home in order to qualify for Medi-Cal. They also ask us if the State will take their home after they die, if they have been on Medi-Cal.

Your home is generally an exempt asset for qualification for Medi-Cal. You confirm to Medi-Cal that you have an intent to return home, even if you have to go to a nursing facility for an extended period of time. At the present time, a home of any value is exempt for Medi-Cal qualification. Under the Deficit Reduction Act (DRA), which is not effective yet in California, there may be a qualification that a home cannot have more than $750,000 equitable value. But the DRA is not law yet, and to date, we do not have final language in this regard.

However, if the home is in your estate at the time of your death, it is subject to an estate lien for recoupment by the State. The State can claim against your estate, the amount of Medi-Cal benefits paid to the Medi-Cal recipient, but only up to the value of the estate. There are legitimate ways to protect the home from a State lien however, such as removing it from your estate before you die. The planning techniques in this regard this should be accomplished through an elder law attorney, in that there are potential tax issues to be dealt with.

If the deceased Medi-Cal recipient has a surviving spouse, minor, blind or disabled child, the State cannot pursue a lien. A home in joint tenancy between the surviving spouse and her children, does not provide protection against a State lien. As an aside, the State cannot recover against qualified accounts, such as IRAs, or term life insurance policies.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

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.

When we interview clients at the Law Offices of Michael J. Young, www.WalnutCreekElderLaw.com, regarding Medi-Cal qualification, we always ask if the Medi-Cal applicant owns any life insurance policies. For Medi-Cal qualification, the applicant can own any amount of term life insurance. As a result, term life insurance is an excluded asset for qualification. However, if the applicant owns whole life insurance, the face value cannot exceed $1500. The face value is also sometimes called “combined death benefit.” At times, it is difficult to ascertain the type of policy the applicant owns, and what the face value or “cash in value” is. VA policies, for instance, can present problems because the veteran, who is also a Medi-Cal applicant, may have forgotten that he even owns a VA life insurance policy. When it is discovered, and if the cash in value is over $1500, the applicant will be disqualified from receiving Medi-Cal benefits.

There are remedies to fix the problem, such as cashing in the policy, borrowing against it, and gifting or transferring ownership. If the applicant has lost mental capacity to do these things, we will need to rely on the powers in his financial durable power of attorney. Gifting or transferring ownership of the policy may not be an option for the applicant who has lost mental capacity, if the durable power of attorney does not contain the appropriate “elder law” asset protection and gifting language.  Most financial durable powers of attorney do not have this special language. You should see your elder law attorney to pre-plan for these issues.

It is also a good idea to discover whether the Medi-Cal applicant is the beneficiary of any life insurance policies, such as from a spouse. If the well spouse dies first and the Medi-Cal applicant receives the proceeds from the policy, the applicant could immediately lose eligibility.  

This blog is for informational purposes only and is not legal advice. Please see an elder law attorney for your particular case.

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 Alamo, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

For Medi-Cal qualification, one car is generally deemed exempt. We receive calls in our office, The Law Offices of Michael J. Young, 925-256-0298, www.WalnutCreekElderLaw.com,  from people telling us that they are going to immediately sell the second car.  They think they need to do this in order to create Medi-Cal eligibility for their loved one. We tell them that this may not be necessary, in that Medi-Cal allows you to have more than one car. The first car is exempt if it is used for the benefit of the applicant/beneficiary, or if it is needed for medical reasons. You can declare the most expensive car as the exempt car. The value of the second car, which is not exempt, will be added to the total value of the assets of the applicant. Remember that an individual applicant can only have $2,000 in non-exempt assets. A couple can have $2,000 in non-exempt assets for the “ill spouse” and $109,560 in non-exempt assets for the “well spouse.” The second car is not an exempt asset, and may have to be sold or transferred to create eligibility. 

If the applicant does not have a car, they can purchase a car to “spend down” assets in order to create Medi-Cal eligibility. There is no “look back period” for this purchase. When I mentioned this at one of my recent seminars,  one of the attendees jokingly asked if his parents could purchase a $1.5 million dollar Bugati automobile in order to create eligibility.  I suggested that if they could afford such a car, they probably wouldn’t be calling me, and also that the eligibility worker may view this as an abuse of the system.

This blog is for informational purposes only and is not legal advice. Please see an elder law attorney for your particular case.

By Elder Law Attorney Michael J. Young. The Law Offices of Michael J. Young is located at 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. www.WalnutCreekElderLaw.com, LawYoung1@Gmail.com. Serving Contra Costa and Alameda Counties, including Walnut Creek, Concord, Brentwood, Pleasant Hill, Alamo, Antioch.

A little known ”spend down” technique for Medi-Cal qualification purposes is the FUNERAL EXPENSE TRUST, also known as the FINAL EXPENSE TRUST. Medi-Cal allows for assets in any amount to be transferred from the Medi-Cal applicant to an irrevocable trust, to pay for the funeral expenses of the Medi-Cal recipient. This transfer does not create any periods of ineligibility for Medi-Cal qualification.

In our office, The Law Offices of Michael J. Young, www.WalnutCreekElderLaw.com, we routinely ask our clients at the initial meeting about their thoughts regarding funeral arrangements. We talk about burial vs. cremation, a traditional funeral vs. no funeral, or something in between.  We also talk about potential costs for final expenses. Many of our clients will transfer funds to the irrevocable trust to create immediate eligibility for Medi-Cal, without creating a period of ineligibility.

Other clients, and their families, just like the peace of mind, aside from Medi-Cal issues, in knowing that cash is available in the trust for funeral expenses.  These funds are protected from creditors, such as nursing homes, hospitals, etc., because the funds are in an irrevocable trust. There are no probate issues concerning the funds, and the fund is income tax free. The family can take the trust to any funeral home or cremation service, etc., in any state, and use the funds for their loved one. In addition, with the trust fund for funeral expenses in hand, it is easier for the family to shop for funeral services when the time comes. Of course, additional services can be purchased. Funds not used from the trust fund are available to the estate of the decedent and to Medi-Cal.

Your elder law attorney can provide more information to you about the final expense trust. Written by elder law attorney Michael J. Young, 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 925-256-0298