Walnut Creek Elder Law Blog

The language used in estate planning documents for asset protection and government benefits planning for the older client, is very different from the language used in regular estate planning documents. In fact, I would say that 90% or more of all revocable living trusts and financial durable powers of attorney do not contain the right language, and are defective for this type of planning, if the maker or one of the makers of the documents loses mental capacity.

As an example, if we are going to protect the home from a Medi-Cal lien, because of an imminent stay in a nursing home, we may want to transfer the ill spouse’s interest in the home to the well spouse. Or, in the case of a single person, we may want to transfer that person’s interest in the home to a child. Or, we may want to liquidate the cash in value of a life insurance policy, and gift that interest to a spouse or a child.

If the person who owns the interest has lost capacity to make the transfer, the language in the trust and financial durable power of attorney, in most cases, does not allow for this type of transfer. As a result, we may have to go to court to obtain an order to reform the estate planning documents. This process can be costly.

The alternative is to do pre-planning, and have the revocable living trust and financial durable powers of attorney updated by an elder law lawyer, who practices in the areas of Medi-Cal planning, VA planning and nursing home planning. By doing pre-planning, and including the correct language in these documents, we can save costs and headaches later on.       

This blog is for informational purposes only and is not legal advice. You should consult an elder law, asset protection and government benefits 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. Mr. Young advises clients regarding Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning.

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.