Walnut Creek Elder Law Blog

The Importance of an “Elder Law” Durable Power of Attorney

mike — Thu, 19 Apr 2012 20:33:01 +0000

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.

2012 CA Medi-Cal Quick Reference Guide

mike — Thu, 12 Apr 2012 23:18:50 +0000

The following is our 2012 CA Medi-Cal Quick Reference Guide. Please refer to our website, http://www.WalnutCreekElderLaw.com for a further explanation of Medi-Cal qualification requirements.

2012 CA Medi-Cal Quick Reference Guide

Community Spouse Resource Allowance

$113,640

This is the amount that the community, or (at home) well spouse can retain in liquid assets. This amount does not include exempt assets, such as the home and qualified accounts, such as IRA’s.

Minimum Monthly Maintenance Needs Allowance

$2,841

This is the minimum amount of income the well spouse can keep.

Average Private Pay Rate (Divestment Penalty Divisor)

$7,092

This is the amount the State pays to nursing homes on the Medi-Cal program, minus a share of cost by the applicant. This figure is also used to calculate penalty periods of ineligibility for Medi-Cal.

Applicant Resource Allowance

$2,000

The applicant can keep this amount in cash, checking, etc.

Monthly Personal Needs Allowance

$35

The amount of non-exempt liquid assets the ill person is allowed to keep.

What Is The Difference Between Elder Law and Estate Planning?

mike — Mon, 17 Oct 2011 18:28:06 +0000

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.

Medi-Cal Qualification

mike — Tue, 04 Oct 2011 18:44:42 +0000

This is a brief list of exempt assets for Medi-Cal qualification. Your home is generally exempt, and you can take steps to protect your home from a Medi-Cal lien after your death. Your household goods and personal belongs are exempt. You can have an exemption for one car. Term life insurance policies are excluded, but you cannot have more than a total of $1500 cash value in the policies. You can keep your IRAs and other “qualified accounts.” You can only have $2,000 of non qualified assets.

This is a brief synopsis of exempt assets, and of course planning and applying for Medi-Cal is much more complicated than is presented here. In addition, if you are a wartime veteran or the surviving spouse of a wartime veteran, you should consider planning and possibly applying for the VA Aid & Attendance Pension Benefit. Planning for the VA Aid & Attendance Pension Benefit should be coordinated with your planning for Medi-Cal benefits. Your elder law attorney, who is also certified by the VA, can help you with planning for both benefits.

This blog is written by Michael J. Young, Elder Law Attorney, for informational purposes only and is not legal advice. You should consult an elder law, government benefits and asset protection attorney for your particular case, and before you proceed with any planning.

For additional information you can go to Mr. Young’s website at www.WalnutCreekElderLaw.com . You can send an e-mail to Mr. Young at mike@WalnutCreekElderLaw.com. His address is 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. Phone: (925) 256-0298. Mr. Young has clients in Contra Costa and Alameda Counties, including the cities of Walnut Creek, Pleasant Hill, Concord, Antioch, Bay Point, Alamo, Danville, 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 member of NAELA.

Concord Elder Law Attorney

mike — Wed, 28 Sep 2011 22:25:13 +0000

Michael J. Young is an elder law attorney in Walnut Creek, CA who represents many clients from Concord and the surrounding areas. Mr. Young represents the older client and their families regarding asset protection, estate planning, long term care planning and government benefits planning. Mr. Young helps his clients and their families plan for and qualify for Medi-Cal. Medi-Cal helps pay the cost of skilled nursing facilities.

In addition elder law attorney Michael J. Young has clients in Concord, CA who are war time veterans or the surviving spouses of wartime veterans. The VA Aid & Attendance Improved Pension Benefit can help pay the costs of in home care, assisted living facilities and board and care homes for these clients. The single veteran can receive up to $19,736 per year and the surviving spouse can receive up to $12,681 per year for this benefit.

Both programs, Medi-Cal and the VA Aid and Attendance Improved Pension Benefit, are asset and needs based for qualification. As a result, qualification for these benefits is part of the elder care plan prepared by Mr. Young for the older client and their families. This planning may involve asset protection.

Mr. Young has written booklets entitled “The Alzheimer’s Legal Survival Kit” and “The Nuts and Bolts Guide to Veteran’s Benefits”. These booklets are available on Mr. Young’s website at http://WalnutCreekElderLaw.com.

For additional information, you may contact Mr. Young’s office at 925-256-0298, or e-mail to him at LawYoung1@Gmail.com.

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

Elder Law is Alzheimer’s Planning

mike — Wed, 28 Sep 2011 18:43:24 +0000

According to the Alzheimer’s Association, Alzheimer’s disease affects more than 5 million people in the U.S., and is the seventh leading cause of death in the U.S. today. This disease is expensive for the families of Alzheimer’s patients. And, it is the families who absorb much of the cost of care.

There are government resources available to help pay for the cost of care. The VA Aid & Attendance Improved Pension Benefit for wartime veterans and the surviving spouses of wartime veterans can be very helpful to pay for care. For the single veteran, the pension rate can be as much as $1,644 per month or $19,736 per year. For the surviving spouse, the pension rate can be as much as $1,056 per month, or $12,681 per year. This VA benefit can help pay for the costs of in home care, assisted living facilities and board and care homes.

Another government benefit is Medi-Cal, which can pay for skilled nursing facilities for the Alzheimer’s patient.

Qualification for both of these programs, the VA Aid & Attendance Pension Benefit and Medi-Cal, are asset and income based. Planning for these benefits can be done through your elder law attorney. You should pursue your long term care planning goals, including asset protection, through your elder law attorney as early in the process as possible.

Your elder law and asset protection attorney will update the estate planning documents of the Alzheimer’s patient, provided it is not too late, to include asset government benefits planning, and asset protection language. Thereafter, planning steps are made over time for asset protection and for qualification for these programs.

Michael J. Young, who is an elder law attorney in Walnut Creek, CA, helps many clients with Alzheimer’s disease, and their families, with Alzheimer’s Planning. Elder Law is Alzheimer’s Planning.

Mr. Young is an elder law attorney who represents clients in Concord, Walnut Creek, Pleasant Hill, Brentwood, Antioch, Clayton, Danville, Alamo and surrounding areas.

Through proper planning from an elder law attorney, disease is not too far advanced, the

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

Antioch Elder Law Attorney

mike — Mon, 26 Sep 2011 16:35:49 +0000

Elder Law Attorney Michael J. Young practices in the areas of long term care planning, asset protection, government benefits planning and estate planning for the older client in Antioch and the surrounding areas. Mr. Young holds workshops regarding these topics on a regular basis. He is the author of the The Alzheimer’s Legal Survival Kit and The Nuts and Bolts Guide to Veteran’s Benefits. These and other publications and information regarding upcoming workshops are available through Mr. Young’s website at http://www.WalnutCreekElderLaw.com.

Many of Mr. Young’s clients live in Antioch and wish to engage an elder law attorney to help them do their long term care planning for asset protection and government benefits planning such as for the VA Aid & Attendance Pension Benefit and Medi-Cal.

Medi-Cal pays for skilled nursing facility costs. The VA Aid & Attendance Improved Pension Benefit can help pay for in home care, assisted living facilities and the costs of board and care. If you are a wartime veteran, or the surviving spouse of a wartime veteran, over the age of 65 and may be in need of help with activities of daily living, you may want to plan for this little known benefit.

Planning for asset protection, Medi-Cal and the VA Aid & Attendance Pension Benefit usually begins with updating the estate planning documents, such as the revocable living trust and financial durable powers of attorney to include specialized planning language. The focus for this type of planning changes for the older client, to help make our assets last longer, and to create more options. An elder law attorney can help you with this important perspective. We don’t want to run out of money or options as we grow older. The focus on long term care planning changes from “What happens when we die” to “What happens if we don’t die.”

Mr. Young offers a free telephone consultation, and you may contact his office at 925-256-0298, and visit his website at www.WalnutCreekElderLaw.com.

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

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney with offices in Walnut Creek, CA. www.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.

Brentwood Elder Law Attorney

mike — Mon, 19 Sep 2011 18:23:49 +0000

Michael J. Young, elder law attorney, represents many older clients in Brentwood, CA. Mr. Young practices in the areas of estate planning, long term care planing, government benefits planning and asset protection. Author of The Alzheimer’s Legal Survival Kit and The Nuts and Bolts Guide to Veteran’s Benefits, Mr. Young helps his clients plan for the VA Aid & Attandance Pension Benefit for wartime veterans, and for Medi-Cal. Both of these publications are available through Mr. Young’s website at www.WalnutCreekElderLaw.com The Aid & Attendance Pension Benefit, (A&A) can help pay the costs for in home care, assisted living facilities and board and care. Medi-Cal pays for skilled nursing costs. Both programs are income and needs based, and they have different rules for qualification, gifting and asset protection. As a result, for the veteran, both must be planned for at the same time. Mr. Young’s long term care planning and estate planning emphasizes not only on ‘what happens when you die’, but ‘what happens if you don’t die.’

For additional information, please feel free to contact Mr. Young’s office at 925-256-0298 and his website at www.WalnutCreekElderLaw.com

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.

Life Expectancy and VA Aid & Attendance

mike — Fri, 16 Sep 2011 18:10:25 +0000

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.

Elder Abuse – Criminal and Civil – Red Flags

mike — Wed, 14 Sep 2011 20:27:12 +0000

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.