Dear friends of our firm: In this month’s newsletter, we are bringing to your attention issues that have recently been making news in elder law. The topics below discuss elder care issues facing many of our clients and those who love them. We hope you will find these of interest as we continue to “Educate to Motivate.” 1. Harder to Find a Doctor It has been reported that some primary care physicians will not take Medicare patients. Though some have indicated it is not a crisis yet, it has the potential to become a crisis. Doctors complain that federal Medicare program reimbursements are too low and further cuts in their pay are coming. Furthermore, fewer medical students are choosing to become primary care physicians, and instead are going into certain medical specialties. Simultaneously, a lot of older physicians are retiring, and lastly the population is aging with millions of baby boomers prepared to receive Medicare in the near future. 2. Protect Your Home Attempts to protect your family home after you move into a nursing home can be perilous. In most states, transferring your home to your children may lead to a Medicaid nursing home penalty period, making you ineligible for Medicaid nursing home care based on the penalty period calculated in accordance with state regulations. There are times when transferring a residence to children or other persons may make strategic sense, but you need to contact an elder law attorney to determine the circumstances and method under which the transfer is acceptable for Medicaid nursing home purposes. If you make the wrong transfer and become ineligible, the state will attempt to recoup from your estate whatever benefits it paid for your care. 3. Personal Care Contracts for Family Members Who Help Out Many Americans are caring for an elderly family member or friend without compensation. Some are receiving compensation. In cases where compensation is paid, however, it is essential that the parties enter into a written care contract where the caregiver accepts payments that are commercially reasonable in exchange for the care that they are providing to the loved one. If this is not done at an arm’s length and a commercially reasonable basis, any transfers can look like gifts, thereby disqualifying the elderly from Medicaid nursing home benefits. These care contracts have to be established by an elder care attorney. 4. All Trusts Are Not Alike An Ohio appeals court recently determined that resources in a Medicaid nursing home applicant’s trust were countable resources, thereby disqualifying the resident from Medicaid nursing home care. Not a surprising decision, in view of the fact that the trust allowed the trustee, at the trustee’s discretion, to give principal to or for the benefit of the creators of the trust. 5. Potential Reverse Mortgage Problems Some reports suggest that there are observers in the financial markets who are concerned that reverse mortgages have the potential to become another big scandal. Some predatory lenders may be starting to seep into the reverse mortgage market. Some are using the reverse mortgage circumstance as an excuse to offer the sale of investments, annuities, or long term care insurance, all of which can be useful products, but must be suitable for the client in the circumstances. Usually, borrowers receive counseling as a matter of course before they get a reverse loan, but certain government sponsored programs are underfunded with too many borrowers and too few counselors. Reverse mortgageswill still be of value in certain circumstances where cash liquidity is needed instead of Medicaid asset protection planning alone. P.S. Our Special Workshops. As a notice to our readership, please be aware of the following upcoming dates for our workshops entitled “5 Step Plan – So You Don’t Go Broke In a Nursing Home“:

May 21, 2008 at 7:00 pm

June 11, 2008 at 4:00 pm

June 26, 2008 at 7:00 pm

July 9, 2008 at 7:00 pm

• – Call 847.563.4887 to make a reservation in our training room.

• – You don’t want to miss this workshop!

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

• – Maturing Years

• – Senior Years

• – Post Death Years

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

 

1. The New Paradigm for Long Term Care? Will You Advise Your Clients the Same Way? Dissatisfaction with Medicaid by persons who believe the system is unfair to citizens and extremely expensive for government has created new interest in a new model for delivering long term care. The new model would allow the elderly and disabled to obtain custodial care without impoverishing themselves, but at the same time it will curb the ever expanding cost of the Medicaid program. In the State of New York, the legislature has pending a new model for long term care called “The Contract for Long Term Care”. The American Bar Association, and more recently the Illinois State Bar Association, have both approved resolutions urging legislative bodies to consider this model. More will follow about this as it develops in the future. It may be the new paradigm in long term care planning for those that don’t have long term care insurance. Stay tuned. 2. Advise Your Clients to Have a Compliant Medical Power of Attorney A recent Illinois case demonstrates that relying on the Healthcare Surrogate Act may not provide continuity in the delivery of medical records in the event that your client is ill. In this recent case, two individuals were named as surrogate decision makers under the Illinois Healthcare Surrogate Act. However, once the patient left the nursing facility, the application of the act was deemed to have terminated as well, and did not control. The best course of action is to make sure your clients have HIPAA-compliant powers of attorney for healthcare in place. 3. Advise Your Clients That Not All Trusts are Alike, But Don’t Get Hung Up On Details. In a recent Ohio case, the appeals court ruled that certain assets that were held by the Medicaid applicant in an irrevocable trust were deemed available to the Medicaid applicant, and thereby subject to spend down because the trustee of the trust had the discretion to make payments of trust principal for the Medicaid applicant’s benefit. Nevertheless, there are plenty of trusts that can be used to benefit your clients who are Medicaid applicants. The key to these trusts lies in the proper drafting. 4. Can the Home Be Saved? I’m Sure You Get This Question All The Time. While Medicaid does not force the sale of homes in order to qualify for Medicaid, it is more prudent to consult with a qualified elder law attorney before entering a nursing home in order to discuss ways to protect the home. Sometimes placement in revocable trusts and irrevocable trusts can help. Conversion to rental can help, too. It really does depend on the circumstances. 5. Reapply for SS Benefits In connection with taking early Social Security benefits, if your clients change their mind and retirement age, it is possible to pay back the benefits that they have already received with regard to early retirement benefits, and then reapply for full retirements after their retirement date. 6. Nursing Homes Costs Are Rising Costs with regard to nursing homes, home healthcare services, and assisted living facilities have risen for the fifth year in a row. The national average cost for a nursing home is approximately $209.00 per day. That turns out to be $76,000 for coverage on an annual basis. Advise your clients to get LTC insurance if they qualify and can afford it. 7. Financial Abuse of the Elderly Watch your clients for signs of financial abuse of the elderly. What is happening in many cases is that unscrupulous home healthcare aides gain the confidence of a frail, elderly person by helping them with bathing and dressing and constantly being at their side for assistance. Once this trust and confidence is won, the healthcare aides will ask the elderly to write checks payable to cash for supplies from the grocery store, drug store, etc. This kind of abuse can also happen withfamily members who are delivering services. If you suspect this type of financial abuse, it should be immediately reported to the police. 8. Are Pending Contracts Countable Assets? A recent New Jersey appeals court decision indicates that money in customer contracts held by a disabled person’s business should be counted as a countable resource when determining Medicaid eligibility. This is a case where business succession planning should have long before preceded such a chain of events. This is where your value as an advisor is priceless. 9. Trial vs. Arbitration In Nursing Home Contracts Two U.S. Senators have recently proposed legislation that would ensure that nursing home residents have a right to trial for claims they have against the nursing home, rather than being forced by contract into arbitration. The benefits of arbitration to clients are lower costs and less time before a decision is made. But, some counsel feel that trials are more advantageous for a plaintiff. 10. Don’t Trigger Tax In IRA’s and 401(k)s Before Their Time. In some states and IRA or 401(k) or the other tax qualified account is considered a countable asset for a person who is going to be institutionalized. Thus, the IRA or tax qualified asset will need to be spent down for care before Medicaid will provide any coverage. In such cases, the financial advisors will often liquidate the existing tax-qualified account and then cause the account to be subject to early withdrawal penalties and immediate income taxation of the entire liquidated amount. As an alternative, advisors should consider doing a trustee to trustee transfer of the IRA or tax qualified account from the current custodian to a Medicaid compliant annuity. The result can be that this will not trigger a taxable event. Furthermore, you may be able to avoid early withdrawal penalties and immediate taxation on the cash out of the entire account. This is situation where it is worth running the numbers for your client. P.S. Teleseminar for Advisors Call our offices at 847.563.4887 to learn about the specifically tailored upcoming teleseminars that we offer only to advisors that discusses Medicaid preplanning and crisis planning solutions and tools. Join us as Mr. Ferraro dissects the new law and shows you how you can still help your clients even under the new DRA rules. Call to reserve your space. This will fill up quickly! You don’t want to miss this teleseminar!

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

• – Maturing Years

• – Senior Years

• – Post Death Years

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

 

STEP #2 TO REDUCING YOUR CLIENT’S NURSING HOME COSTS

AND

AN OPPORTUNITY TO DISTINGUISH YOURSELF FROM OTHER FINANCIAL ADVISORS

What is step #1? First, step #1 is what we refer to as “pre-planning”. With pre-planning, there is no immediate crisis looming, and there is adequate time to take steps to plan. We discussed pre-planning in volume II of our April 2008 issue. The step #2 of Medicaid planning is what we call “crisis planning“. This arises when a client or a loved one is already in a nursing home or about to enter one. Even at this late stage, there is still plenty of planning to be done. We will discuss crisis planning in this issue. Step #2 Is Crisis Planning: Create High Level Solutions for Clients The Deficit Reduction Act of 2005 (DRA) has significantly changed the landscape of Medicaid. Since the DRA has changed the elder law area so extensively, some lawyers have actually left the field of practice. Not us. We are excited to share with you an additional paradigm shift for your practice. As of this writing Illinois has not yet adopted the DRA. We believe Illinois will do at some future point. We would be happy to update you at that time. Crisis Planning and Medicaid Crisis planning exists when a client or their spouse (or both of them) is in a nursing facility. Once a client is in need of long term care services, a different type of planning must be employed. Financial advisors can play a key role in crisis planning, as well as in the pre-planning discussed in earlier issues. In crisis planning, the issue is how to pay for the immediate monthly nursing home cost of care, while at the same time seeking a preservation of assets. In the State of Illinois at the present time, one method that is available is the monthly gifting of assets. This gifting of assets must be done carefully, because once the DRA is adopted in Illinois, monthly gifting will probably no longer be available. If we assume that monthly gifting is not available, then what other types of strategies are permissible? Another approach might consist of a strategy wherein some of available assets are transferred to children or trusts and the remaining assets are retained. We may also suggest a Medicaid compliant annuity, with the Medicaid compliant annuity structured in a way that will pay toward the cost of care. A Medicaid compliant annuity is something that a financial advisor needs to procure and do just right. There are carriers specializing in these types of annuities and they are willing to partner with other financial advisors in procuring these products for clients that need this type of solution. A Big Mistake To Avoid – Not Capitalizing On Opportunities in a Vast Market As we said before, many advisors think that if you have an asset protection plan you don’t need long term care insurance, or if you have long term care insurance then you don’t need asset protection planning. In my opinion you should haveboth. The reason that the long term care insurance is so valuable is that during the 5 year ineligibility period, the long term care insurance policy can provide either in home care or nursing home care if we need to shift from the 5 year pre-plan to a crisis situation due to a health crisis. You Don’t Want To Miss This Chance! We can, at your request, do the following for your clients (if you are not doing this now):

1. Do a 15 point asset protection audit of your clients’ existing documents
2. Do an Asset Protection Analysis using a 1 page trademarked tool we have
3. Prepare a 5 Step Plan to legally protect your clients’ assets from nursing home costs.

Would doing this for your clients enhance your value to them and therefore the value of your practice? Contact our office. We can share some of the advantages of using asset protection approaches that enable our clients to gain Medicaid asset protection and still have some degree of control and security with regard to the transferred assets. These are well thought out and powerful applications that can benefit your clientele and differentiate you from your competition. P.S. Teleseminar for Advisors Call our offices at 847.563.4887 to learn about the specifically tailored upcoming teleseminars that we offer only to advisors that discusses Medicaid preplanning and crisis planning solutions and tools. Join us as Mr. Ferraro dissects the new law and shows you how you can still help your clients even under the new DRA rules. Call to reserve your space. This will fill up quickly! You don’t want to miss this teleseminar! The “3 Phase” Lawyers Legal Counsel Assisting You in the 3 Phases of Your Life:

• – Maturing Years

• – Senior Years

• – Post Death Years

P.S. On May 15, 2008, I conducted a public workshop regarding VA benefits in Stone Park, Illinois. The response was strong. If you would like to make reservations for future VA workshops, please contact our office at (847) 563-4887. Also, don’t miss our other workshop open to the public: “5 Step Plan – Legally Protect Your Assets from Nursing Home Costs” set for the following dates. Please contact our office at (847) 563-4887 to register.

Wednesday, June 11^th 4:00 pm

Thursday, June 26^th 7:00 pm

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

 

News in our Firm On September 29, 2007 I was presented with a certificate stating that I have been certified as a graduate of the Veteran’s Benefit Institute, a new entity created for the education of the public for Veteran’s Benefits in general. As an elder law attorney, I have learned that VA benefits are available to wartime veterans who may have a substantial need for financial assistance with regard tomedical care expenses. What Kind of Benefits Exist? A veteran who is confined to his/her home, or who needs assisted living care, may qualify for what the Department of Veteran’s Affairs calls Aid & Attendance (A&A). Many Illinois veterans and veterans throughout the country are not even aware that they may be entitled to this benefit. Aid & Attendance is available for veteranswho are disabled due to the issues of aging such as Alzheimer’s, dementia, and other disabilities. For those vets and their widows who are eligible, this can provide a source of cash flow for those who are not yet ready to go into a nursing home. This A&A benefit can pay for in home care and assisted living. The benefits can be as much as$1801.00 per month for a married veteran. The widow of a veteran can receive up to $976.00 per month. For those veterans and widow(ers) who are eligible these benefits can be a blessing, as the benefits can be used for healthcare in their own home or in an assisted living community. More on Aid & Attendance Aid & Attendance is available to a veteran who is not only disabled but who has the need for assistance from another person to help protect a veteran from his or her daily life or environment. In other words, this means that a veteran needs the assistance of someone to help prepare meals, bathe, dress or otherwise take care of him/her. Someone who is confined to the house or is in an assisted living facility and over the age of 65 years is considered by the Department of Veteran’s Affairs to be in need of Aid & Attendance. Therefore it may not take much for some veterans to qualify immediately. There are some limitations with regard to income and assets, however, which are held by the VA applicant. Thus, it is important for veterans to meet with either a veteran’s organization service officer, or an elder law attorney for a consultation to determine whether or not they need any kind of planning to qualify for this wonderful benefit. An elder law attorney can provide veterans and their families with the necessary counsel to determine the appropriate steps that need to be taken if they wish to apply for this benefit. P.S. Please contact our office for more information. You can reach us at (847) 563-4887. We would be happy to assist you with all matters pertaining to your VA benefits planning, estate planning, Medicaid planning needs, and long term care and nursing home needs. P.S.S. On May 15, 2008, I conducted a workshop regarding VA benefits in Stone Park, Illinois. The response was strong. If you would like to make reservations for future VA workshops, please contact our office at (847)292-1220. Also, don’t miss our other workshop: “5 Step Plan – Legally Protect Your Assets from Nursing Home Costs” set for the following dates. Please contact our office at (847) 563-4887 to register.

Wednesday, June 11^th 4:00 pm

Thursday, June 26^th 7:00 pm

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

• – Maturing Years

• – Senior Years

• – Post Death Years

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

 

Dear friends of our firm: In this month’s newsletter, we are bringing to your attention issues that have recently been making news in elder law. The topics below discuss elder care issues facing many of our clients and those who love them. We hope you will find these of interest as we continue to “Educate to Motivate.” 1. Combining Elder Law and Veteran’s Benefits Our office is combining our efforts as elder law attorneys with our expertise in the area of Medicaid qualification and Veteran’s Benefits planning (with emphasis in what is generally referred to as “Aid and Attendance”). We recently had a family that was ecstatic when they found out that their 85 year old mother (the surviving spouse of a WWII vet) would not have to spend $900.00 per month out of her life savings when going into an assisted living facility. The reason? Because the surviving spouse of a veteran can receive up to a maximum of $998.00 per month in “Aid and Attendance” benefits from the VA. Combining that benefit with an asset protection trust, which all her life savings of $200,000 could be transferred to without the creation of an ineligibility period for VA benefits, the family was very pleased. Bottom line-consult an elder law attorney to determine whether or not you as a veteran or the surviving spouse of a veteran are getting your “Aid and Attendance” benefits to which you are legally entitled for your years of service. 2. Nursing Home Reform Legislation is the First Major Industry Reform in 20 Years A bill that the Senate Finance Committee is considering will create one of the largest reforms in nursing home care in the last twenty years. The bill is called the “Nursing Home Transparency and Improvement Act” (S2641). The bill would require nursing homes to indicate their ownership, complete standardization for complaints for residents, and improved information regarding staffing and reporting. The bill is designed to make it easier for those shopping for a nursing home to compare various facilities. Always have your nursing home contract reviewed by an elder law attorney. 3. Caregiving for “Long Distance Parents” Consumer Reports has recently indicated that development of a support network, making use of technology to monitor your parents’ computer or make video calls, and other technological tools, such as monitoring devices, etc., can enable you to care for parents who may live out of state or far away. You might not be able to be there on a day to day basis by living across the country, but you can still help parents who need assistance with finances, taking of medicine, and general oversight. Of course, bringing in a geriatric care manager is a major step, but sometimes an initial assessment can cost $300.00. Remember that the average cost of a caregiver in the State of Illinois ranges somewhere from $15 to $21 per hour for basic assistance, to $150 for managed care or skilled nursing care. With regard to technology, there are personal emergency response systems and environmental detectors that can be installed for as little as $30-$100 per month.If you assist your parents and receive compensation you must consider creating a Personal Service Contract between you and your parents. 4. Status of Payment to Illinois Medicaid Providers A recent Illinois audit confirms that the State of Illinois has a backlog of unpaid healthcare bills. The Auditor General found that Illinois ended each of the last three years with an average of $1.5 billion in unpaid bills. The State held bills without paying them for nearly two months before even starting the process of paying them. The Department of Healthcare and Family Services indicated it will make improvements. The State of Illinois could end up owing $81 million in interest on overdue bills. 5. Is This the End of Pooled Payback Trusts for Clients 65 Years or Older? Recently, the Center for Medicare and Medicaid Services (CMS) issued a bulletin changing its long-standing position regarding pooled payback trusts. According to CMS, transfers to these pooled payback trusts created for individuals 65 years of older are now subject to transfer penalties as if the assets were gifted away to a third party. A pooled trust is an arrangement where a trust is established for a disabled individual. The pooling of funds in this trust enables the individuals to obtain Medicaid benefits while the assets still remain in the pooled trust. The state does have the ability to obtain a reimbursement for whatever it advances on behalf of the disabled person once the person is deceased. Then the balance of the funds in the pooled trust can be transferred to the family. This has been an effective planning tool. It seems that CMS is now curtailing with this new policy a long held and valuable planning technique. Stay tuned, as Illinois attorneys are expecting opposition to this notion. 6. Make Sure You Designate a Beneficiary Advisors nationally are reminding all IRA and 401(k) owners to make sure that they have designated a beneficiary on their retirement accounts. If no beneficiary is designated, then your estate will become your beneficiary. The problem with having your estate become your beneficiary (instead of a person or an appropriate trust) is that the beneficiaries of your estate will be required to withdraw all of the money from the IRA or 401(k) within a five year period instead of being able to spread the payment of taxes over the life expectancy of the beneficiary themselves, thereby allowing for years of tax deferred compounded earnings. Have you considered a stand alone IRA trust to stretch out your IRA benefits and provide asset protection for your beneficiary? 7. Second Marriages and Life Insurance Advisors are cautioning clients that second marriages create complications in determining beneficiary designations. Especially as it relates to life insurance, it is very important to ensure that you carefully draft beneficiary designations so that you can take care of your new spouse if you are remarried, while at the same time not neglecting your children from a previous marriage. Counseling on this issue is vital. 8. Watch Those Pre-Nup Agreements In the State of Tennessee, a trial court ruled that a prenuptial agreement required the husband to pay for wife’s nursing home care. The prenuptial agreement between the parties indicated that the husband was responsible for the daily necessities of the wife. The court found that the expenses involved in being in a nursing home were considered to be daily necessities and ordered the husband to pay them under the terms of the prenuptial agreement. P.S. Our Special Workshops. As a notice to our readership, please be aware of the following upcoming dates for our free workshops entitled “5 Step Plan – Legally Protect Your Assets From Nursing Home Costs“:

June 11, 2008 at 4:00 pm

June 26, 2008 at 7:00 pm

July 9, 2008 at 7:00 pm

• – Call 847.563.4887 to make a reservation in our training room.

• – You don’t want to miss this workshop!

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

• – Maturing Years

• – Senior Years

• – Post Death Years

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

1. The New Medicaid Rules Brought by the “Deficit Reduction Act” (DRA)

As you know from prior Elder Law updates, the “Deficit Reduction Act” (DRA) was signed by President Bush on February 8^th of 2006. (In Illinois these rule are somewhat on hold until the State of Illinois adopts the “Deficit Reduction Act” in the implementation of Illinois’ Medicaid rules. This has not happened as of this writing). The first big change deals with the fact that the look back period for review by the state was now increased from 3 years to 5 years. The second big change deals with gifting. Specifically, for all gifts made on or after February 8^th of 2006, the penalty period does not begin until the individual has spent down to $2,000 and is receiving an institutional level of care (i.e. in a nursing home). The third major change deals with the treatment of annuities. When used as a Medicaid planning technique, the state must be named the primary beneficiary of the annuity so that at the death of the nursing home resident, the state will then have the ability to obtain proceeds equal to the cost that the state has advanced on behalf of the nursing home resident. The fourth change deals with the fact that even though the personal residence may be exempt for Medicaid purposes, the maximum amount of equity in the residence that will be sheltered is $500,000. 2. Five Mistakes Financial Advisors are Making about Long Term Nursing Home Care and the New Medicaid Rules So what are the mistakes that financial advisors are making with regard to the new rules? They are as follows: 1. Not realizing that any gifting that occurs after February 8^th of 2006 can now cause a Medicaid penalty 2. Not making sure that annuities are structured exactly right in order to make sure they qualify for Medicaid. However, these types of annuities are very technical and have to meet guidelines set up by Centers for Medicare and Medicaid Services (CMS) (Formerly HCFA) in its transmittals to the public. 3. Not planning far enough ahead. Under the old rules it was easy to plan in a crisis situation. Under the new rules crisis planning will not yield as much in the way of asset protection. 4. Not being alert to determine whether or not Estate Planning documents are setup properly. For example, one of the greatest mistakes people make is that they continue what we call “Sweetheart Wills and Trusts”. That is, husband leaves everything to the wife and the wife leaves everything to the husband. That’s all well and good when long term disability is not in view. However, if there is a possibility of long term disability, then leaving everything on your death to a spouse who is about to enter a nursing home is not good planning. 5. Assuming that any power of attorney is adequate for Medicaid planning and other planning. This is not true. 3. Is This the End of Pooled Payback Trusts? A note of concern is that CMS, the agency that sets out rules for all of the states to follow in the implementation of Medicaid eligibility, has recently issued a letter on May 12, 2008 indicating that Pooled Trusts for disabled individuals aged 65 or older, may be subject to penalty as a transfer of assets for less than fair market value. A Pooled Trust has been a great tool to allow disabled seniors to qualify for Medicaid for vital and basic medical services while at the same time maintaining a source of funds to supplement the minimal care benefits provided by the public benefits system. It appears that the ability to have a Pooled Trust and Medicaid at the same time for persons 65 years or older may no longer be possible. We will keep our readership apprised of the status of this recent change. 4. Trusts with Incentives and Asset Protection for a Change Recently our practice has seen a proliferation in requests by clients to continue to draft trusts, but with two new focal points: 1. Incentive Trust provisions that are designed to award beneficiaries who work hard, invest wisely or accomplish allowable goals. 2. Asset Protection Trusts for Beneficiaries. Fully discretionary third party trusts can protect an inheritance from claims brought against the beneficiaries’ creditors (divorcing spouses, creditors of a lawsuit, creditors of a failed business) if properly drafted. This type of trust drafting will increase in the future. 5. Caregiver Contracts Again! As stated in prior issues of the Elder Law Update, please be aware that monies paid to children in exchange for the services they provide to parents should be transacted under a written caregiver agreement. Without a written agreement setting forth the terms of the compensation, the transfers from the parent to the child will often be deemed to be gifts instead of transfers in exchange for services. It is our strong recommendation that any advisors that see children receiving compensation should seek the advice of an Elder Law attorney in order to establish a written contract between parent and child setting forth the terms of the compensation and supplementation with contemporaneous timesheets filled out by the children as they render the services for which they are being paid. Anything less than this could result in substantial ineligibility periods for the parent at the time they enter a nursing home. This can be disastrous for the parent if the money is no longer available to be repaid back to the parent. P.S. Teleseminar for Advisors Call our offices at 847.563.4887 to learn about the specifically tailored upcoming teleseminars we offer only to advisors that discuss Medicaid pre-planning and crisis planning solutions and tools. Join us as Mr. Ferraro dissects the new law and shows you how you can still help your clients even under the new DRA rules. Call to reserve your space. This will fill up quickly! You don’t want to miss this teleseminar! The “3 Phase” Lawyers Legal Counsel Assisting You in the 3 Phases of Your Life:

• – Maturing Years

• – Senior Years

• – Post Death Years

P.S. On May 15, 2008, I conducted a public workshop regarding VA benefits in Stone Park, Illinois. The response was strong. If you would like to make reservations for future VA workshops, please contact our office at (847) 563-4887. Also, don’t miss our other workshop open to the public: “5 Step Plan – Legally Protect Your Assets from Nursing Home Costs” set for the following dates. Please contact our office at (847) 563-4887 to register.

Thursday, June 26^th 7:00 pm

Wednesday, July 9^th 7:00 pm

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

We recently handled a case where we successfully obtained an increase of the amount of assets that could be transferred from an ill spouse to a well spouse in order to keep the well spouse in the community longer and without suffering from the nursing home Medicaid spend down of the ill spouse. Background Facts:

• Husband and wife.
• Husband – mentally incompetent and residing in nursing home due to debilitating effects of a stroke. No Powers of Attorney.
• Husband – monthly nursing home cost out of pocket – $6,500 per month.
• Wife – healthy, living in the community.

Problem:

• Husband does not qualify for Medicaid nursing home coverage.

Financial Data:

• Ill husband’s separate assets: $56,000.
• The well spouse’s separate assets: $22,000.
• The joint assets of the ill spouse and the well spouse: $90,000.
• Real estate held by both spouses ½ each as tenants in common value: $275,000.

The Result (quite favorable for our client): 1. The ill spouse could legally transfer assets to the well spouse. 2. The well spouse’s assets increased by $146,000 so that she would be able to keep $169,250 in order to remain in the community instead of the lesser statutory $104,400. 3. The ill spouse was to transfer the automobile ($10,000) and the household furnishings ($10,000) to the healthy spouse so that the healthy spouse could live in the community longer and in a more financially secure way. 4. The ill spouse’s interest in the family residence ($137,500) was transferred to the well spouse so that the well spouse owned 100% of the residence ($275,000). 5. The ill spouse was required to divert his social security income of $1,100 and his pension income of $400 as well as his IRA retirement income of $200 to the well spouse to be added to the well spouse’s own income of $600 per month. Thus, the well spouse’s total income retained while the ill spouse’s in the nursing home totaled $2,300 instead of just $600 per month. 6. Ill spouse will now qualify for Medicaid coverage at nursing home. The client was as happy with the results as we were. Moral of the story: Do not put off long term care planning. In this case, our request for relief was granted for the well spouse living in the community.However, it is not always possible to obtain relief. Rather, these types of planning arrangements can be done earlier with qualified legal counsel. You should take it upon yourself to do this kind of planning well in advance of the time you are in a nursing home or before you become incompetent as in the case of the ill spouse in this illustration. The time to plan is now. Take advantage of the opportunity to “Pre-plan” by calling us at (847) 563-4887. P.S. Our Special Workshops: As a notice to our readership, please be aware of the following upcoming dates for our free workshops entitled “5 Step Plan – Legally Protect Your Assets From Nursing Home Costs“:

August 14, 2008 at 4:00 pm

August 28, 2008 at 7:00 pm

•- Call (847) 292 1220 to make a reservation in our training room. •- You don’t want to miss this workshop!

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

•- Maturing Years

•- Senior Years

•- Post Death Years

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC Columbia Centre I 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

 

 

Rising Gasoline Costs & Economic Uncertainty –

3 Biggest Requests by Clients for Service from Our Law Firm

In the face of the economic slow down and increased fuel costs, we are advising our clients to not be stymied or paralyzed by negative news. Rather, the economic news is a wake up call we can all learn from and use to improve our circumstances. Over the last year, even in the face of economic uncertainty, the following areas are those in which clients have expressed the most demand for our services. I recommend you consider these three asset protection strategies: 1. IRA Stretch-Out Trusts – Stretch Out Taxes and Protect Assets. Instead of leaving an IRA outright to children, think about leaving it in an IRA Stretch-Out Trust. This kind of trust can stretch and also protect the IRA that you leave to children. This will prevent a beneficiary from withdrawing the entire IRA at the time of death. If that IRA is distributed right after death, the child may automatically lose 35% of it to income taxes alone. Instead, if you leave the IRA in an IRA Stretch-Out Trust, this allows beneficiaries to: a. Stretch tax payments over their own longer life expectancies and allow earnings to compound tax-free; b. Protect the IRA from divorces and lawsuits; and c. Create a legacy for children and grandchildren when the parents are gone. You should also be aware that leaving an IRA to a revocable living trust may not help. As a matter of fact, it can force children to pay the taxes on the IRA faster than necessary. If you have an IRA or 401-(k) may one day rollover to an IRA, call us regarding the advantages of an IRA Stretch-Out Trust. 2. Creditor and Divorce Proofing your Children=s Inheritance – Asset Protection Trusts Protect Against Economic Uncertainty, Rising Divorce Rates and Rampant Business Failures. Instead of just leaving everything to children outright at death, we find that leaving assets in an asset protection trust can prevent the assets from being lost to the children’s creditors. What if a child is in the middle of a divorce, a lawsuit, or a business failure at the time of a client’s death? What happens to their inheritance? A client spends a lifetime accumulating it, the children lose it overnight. Contact us if to find out more about asset protection trusts for children and how they can protect the inheritance of children and other beneficiaries. 3. Revocable or Irrevocable Trust? Have Our Firm or Your Financial Advisor Fund It. It cannot be overstated that fully funding a trust is important. If a trust is unfunded or partially funded, the assets that exist outside of that trust will probably require probate or result in more taxation. Funding a trust can be done with a list of instructions that our office can prepare. Please contact our office if we can assist you in the funding of a revocable or irrevocable living or testamentary trust. If a trust has not been reviewed for 2 to 3 years, then contact our office for a review. At that time we can advise on how effectively a trust has been funded and what is left to be done. We can assist with funding or you can do the funding with our guidance. Better yet, have your Financial Advisor do the funding with our guidance. Next Step These are areas that our clients are expressing a lot of interest in. Don’t get behind the asset protection learning curve. Please call Lori  at (847) 563-4887 for a review appointment. At that time we can provide our “15 Point Estate Audit”of the adequacy of any Will, Trust or Powers of Attorney and discuss the above issues. P.S. Our Special Workshops. As a notice to our readership, please be aware of the following upcoming dates for our free workshops entitled “The Elder Care Journey…. How to Get Medicaid Coverage For Your Nursing Home Care…Without Selling Your Home Or Leaving Your Family Without a Dime”:

August 14, 2008 at 4:00 pm (completed filled)

August 28, 2008 at 7:00 pm (completed filled)

September 3, 2008 at 4:00 pm

September 23, 2008 at 7:00 pm

– Call (847) 563-4887 to make a reservation in our training room. – You don’t want to miss this workshop!

AEducate to Motivate@

The 3 Phase Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

– Maturing Years

– Senior Years

– Post Death Years

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC Columbia Centre I 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com abferrarolaw.com Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

 

1. Bi-partisan Bill in the U. S. Senate Re: Nursing Homes: A recent bi-partisan bill in the U. S. Senate would make arbitration agreements built in to nursing home contracts unenforceable because it is believed by the drafters of the bill that nursing home residents sign away their right to trial before an actual dispute has arisen with the nursing home. Arbitration is always permissible to parties who agree to arbitrate it after the dispute has arisen but mandatory arbitration built into an agreement at the time of signing the nursing home contract is wrong according to the pending bill. 2. Life Insurance Policies – Review the Beneficiary Designation. Life insurance policies – review the beneficiary designations. In the context of planning for nursing home care, you should be aware of who the beneficiaries on a life insurance policy are. If the primary beneficiary of the life insurance policy is a nursing home resident and the insured dies first, all of the proceeds will go to the nursing home resident who may have to go off Medicaid until the insurance proceeds are completely spent for his care. That’s a waste of life insurance proceeds. Alternatively, if the person that is insured is the nursing home resident and his primary beneficiary is his deceased spouse and no alternate beneficiary is named, then on the death of the insured the proceeds may go to his probate estate which are subject to Medicaid recovery. Both of these situations can be avoided by properly designating the correct beneficiary on a life insurance policy. 3. Senate Bill Seeks to Expand Medicaid Coverage of Home and Community-based Care (An Alternative to Nursing Homes?): Prior to leaving for the August Congressional recess, Senators John Kerry (D-MA) and Charles Grassley (R-IA) introduced the “Empowered at Home Act” (S. 3327), a bill that seeks to increase access to home and community based services by giving states new tools and incentives to make these services more available to those in need. In a statement upon introduction of the bill, Kerry said, “Far too many elderly or disabled Americans can’t get the help they need in their home and community. “Being able to live at home greatly improves quality of life because people can be with loved ones and have the dignity that goes with greater independence,” said Grassley. The bill has four points: 1. It seeks to improve the Medicaid Home and Community-based Services (HCBS) State Plan Amendment Option by giving states more flexibility in determining eligibility for which services they can offer under the program. 2. It would require that the same spousal impoverishment protections offered for new nursing home beneficiaries be in place for those opting for home and community based services. 3. It would offer tax-related provisions to support family caregivers and promote the purchase of private long-term care insurance. 4. It would provide grants for states to invest in organizations and systems to help ensure a sufficient supply of high quality workers, promote health, and transform home and community based care to be more consumer-centered. 4. Physicians: Physicians are required in many states to report elder abuse. In most states physicians are required by law to report to the authorities any suspected elder abuse that they see in examining their patients. Unfortunately, it is believed that less than 2% of the elder abuse and neglect cases recorded each year are reported by physicians. Sometimes the physician is the only person that the elderly person sees outside of their home. 5. Social Security: 65 or 67?: The American Academy of Actuaries is a group that advises policy makers on certain matters pertaining to financial issues, and advises that the Social Security retirement age be raised from 65 to 67 years. The reason is that life expectancies have increased from 60 years when Social Security was established in 1935 to 76 years according to today’s living standards. 6. Social Security Administration Announces a Retirement Income Calculator: The SSA has created a new online calculator that will help you determine your social security benefits based on the facts pertaining to your actual work record. This can be valuable to people because by knowing what your social security benefits will be, it will help you determine what you need to be saving for retirement. 7. National Association of Area Agencies on Aging (N4A): The National Association of Area Agencies on Aging (N4A) has produced an online tool designed to create search capability for senior housing for seniors and caregivers nationwide. This tool allows you to use a search database of more than 60,000 senior housing arrangements. Users of the database can review assisted living communities, nursing homes, residential care facilities, continuing care retirement communities and other independent living communities. This is a free resource. P.S. Please contact our office for more information. You can reach us at (847) 563-4887. We would be happy to assist you with all matters pertaining to your VA benefits planning, estate planning, Medicaid planning needs, and long term care and nursing home needs. P.S.S. On May 15, 2008, I conducted a workshop regarding VA benefits in Stone Park, Illinois. The response was strong. If you would like to make reservations for future VA workshops, please contact our office at (847)292-1220. Also, don’t miss our other workshop: “5 Step Plan – How to Get Medicaid Coverage for your Nursing Home Care… Without Selling your Home or Leaving your Family Without a Dime” set for the following dates. Please contact our office at (847) 563-4887 to register.

September 3, 2008 at 4:00 pm

September 23, 2008 at 7:00 pm

Call (847) 292 1220 to make a reservation in our training room. •- You don’t want to miss this workshop!

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

•- Maturing Years

•- Senior Years

•- Post Death Years

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC Columbia Centre I 5600 N. River Road, Suite 764 Rosemont, IL 60018 PH (847) 563-4887 FAX (847) 292-1221 Website: https://abferrarolaw.com/ Email: abferrarolaw@abferrarolaw.com Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.

I. Long Term Care Planning Myths, Part 1: Medicaid was considered a complicated program when President Lyndon B. Johnson first signed it into law at the Truman Library in Independence, Missouri, and it has grown even more complex during each of the thirty years since. Although it is a national program, it is administered by each state. The rules and regulations are constantly changing and can vary widely from state to state. So, it’s no wonder there are many myths and inaccuracies surrounding the program. This month, we are taking a look at the common misconceptions we hear frequently about Medicaid. “My mother heard about someone who…” All too often, we meet people who have heard horror stories about Medicaid from well-meaning friends or family members. These stories are often filled with inaccuracies and half-truths that frighten people into spending every last dime on nursing home care for themselves or a loved one before turning to Medicaid for help. Similar stories have also prompted people to assume that what worked for a friend will work for them as well. So, they may give their house or all of their assets to a child in hopes that impoverishing themselves will immediately qualify them for benefits. Unfortunately, they soon find out that these transfers mean they are unable to receive benefits for several months or even years after the money is gone. That’s why it is important to contact an attorney who concentrates his or her practice in elder law. With a clear picture of your specific situation, an elder law attorney can explain those laws that should allow an individual or married couple to preserve their house and enough of their assets to live comfortably for the rest of their lives. “My father is already in the nursing home so there’s nothing we can do now.” It’s true that a family can wait longer than they should to contact an elder law attorney but it’s rarely ever too late to establish a good plan. A good rule of thumb is that the earlier a plan is put in place, the more assets can be preserved. So, when is the right time to call an elder law attorney? You should not pick up the phone right now if you or a loved one does not have a Power of Attorney in place for financial and health care decisions. It’s important these documents are put in place before a gradual or sudden decline in mental competency occurs. It’s also important to make sure the financial Power of Attorney contains the right languageso Medicaid planning is possible. You should also call right now if you think that nursing home care will be needed by a loved one. This may be due to a diagnosis of a terminal or debilitating illness, such as Alzheimer’s, Parkinson’s or ALS. It may also be that your loved one is being discharged from the hospital and told he or she will be unable to care for themselves at home. All of these situations should be reviewed by an elder law attorney to determine what type of planning can be done. “The Medicaid office can just give me the paperwork.” Those who work in the Medicaid office cannot offer you legal advice. You may not learn about laws that may allow you to receive Medicaid and still keep part or all of your spouse’s income as well as your own. Nor can they represent you or give you advice on the laws that, depending on your specific situation, may allow you to keep all of your assets without spending down a single penny. Medicaid has rules and regulations in place to ensure families don’t lose everything to nursing home costs. An elder law attorney can explain how those laws may benefit you and your family. II. Advancing the Language: Long term care planning is a phrase that has been used widely. Some people think of it as insurance, other people think of it as in-home care or nursing home care, and other people think about it as a safe harbor in which to seek comfort. Actually, it’s all of the above plus more. However, I think that a more definitive analysis of long term care planning would read as follows: Long term care planning deals with the issue of “What happens if I don’t die”? At that point, the long term care planning analysis breaks down into three (3) sub-categories:

1. Life care planning where there is a known diagnosis.
2. Medicaid crisis planning where there is a known placement in a nursing home soon.
3. Medicaid pre-planning where there is no known placement or no knowndiagnosis in the near term.

Thus, when you discuss long term care planning, a little but more specificity is often useful to try to drill down to the type of services and concerns that you have. Breaking down long term care planning into sub-categories suggested above will help you get to the place you need to get in this analysis. P.S. Please contact our office for more information. You can reach us at (847) 563-4887. We would be happy to assist you with all matters pertaining to your VA benefits planning, estate planning, Medicaid planning needs, and long term care and nursing home needs. P.S.S. On May 15, 2008, I conducted a workshop regarding VA benefits in Stone Park, Illinois. The response was strong. If you would like to make reservations for future VA workshops, please contact our office at (847)292-1220. Also, don’t miss our other workshop: “5 Step Plan – How to Get Medicaid Coverage for your Nursing Home Care… Without Selling your Home or Leaving your Family Without a Dime” set for the following dates. Please contact our office at (847) 563-4887 to register.

October 15, 2008 at 6:30 pm

October 29, 2008 at 4:00 pm

Call (847) 292 1220 to make a reservation in our training room. •- You don’t want to miss this workshop!

The “3 Phase” Lawyers

Legal Counsel Assisting You in the 3 Phases of Your Life:

– Maturing Years – Will, Trust, Taxes, and Asset Protection

– Senior Years – Long Term Care, Medicaid, and Nursing Home Protection

– Post Death Years – Estate, Probate, and Trust Administration

“Educate to Motivate”

Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC Columbia Centre I 5600 N River Road, Suite 764 Rosemont, IL 60018 PH(847)292-1220 abferrarolaw@abferrarolaw.com https://abferrarolaw.com/ Note: Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.