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Do you have the right kind of trust?
Only certain types of irrevocable living trusts (IRTs) provide asset protection for long-term care. Irrevocable trusts, if drafted properly, may be considered a complete gift by the senior to the beneficiaries of the IRT, and thus out of the senior’s estate permanently. If, however, the senior has any access to principal in the IRT, then the IRT will not provide any asset protection from the costs of long-term care.
It is possible to allow seniors to maintain an income interest in the IRT, as opposed to an interest in the principal of the IRT, but this creates a more complicated audit process if and when the senior ever needs to look to the Medicaid program to pay for the costs of long-term care.
About 66% of all US citizens will be looking to the Medicaid program if long-term care is needed. Therefore, it is increasingly important to properly draft an IRT and also understand the time of the creation and funding of the IRT so that the creation of the trust will not interfere with a possible application for Medicaid to cover the costs of long-term care.
Seniors also have to keep in mind that there are significant issues in the drafting of an asset protection trust that deal with the following:
- Income tax issues
- Gift tax issues
- Estate tax issues
- Medicaid eligibility issues
- Issues about the right beneficiaries, receiving the right assets, at the right time
- Trustee issues
- Using the IRT in a period of health for the senior versus a health crisis for the senior
- Issues regarding selecting the right assets to place in the IRT
So you see, asset protection trusts are essential for many seniors, because they may be the only way assets can be protected, not only from the cost of long-term care but also the predators and creditors of their beneficiaries. But the drafting of an IRT is much more complex than the drafting of an RLT and seniors need to make sure that they retain an elder law attorney to maximize the chances that their trust is the right trust for them at that point in their life.
Blog, Chicago area, Chicago Elder Law, Chicago Elder law attorney, Chicago Illinois Hospice Care, Chicago Suburban Elder Law Attormey, Chicago Suburban Elder Law Attorney, Chicago Suburbs, Chicagoland Elder Law, Elder Law Articles, Eldercare Attorney, Medicaid and Paying for Nursing Home Care, Medicaid spend down planning
Installment 9 of 10
In Our Series:
“Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection through Medicaid in Illinois, for Middle Class Seniors and Boomers”
Generally the Medicaid application process involves many steps generally described as follows:- Projecting Medicaid eligibility by categorical reference,
- Establishing eligibility based on resources consisting of both countable assets and exempt assets,
- Determining income eligibility,
- Establishing the treatment of transfers and penalty periods that are result of the Medicaid applicant’s history, and
- Anticipating whatever estate recovery and lien rules there may be and then applying.
The gathering of documents is a long process, and even after the collection, Medicaid eligibility is not definite. What can help ensure your Medicaid eligibility is making sure that the application is prepared by the right person at the right time.
Who should file the Medicaid application? You can prepare your own Medicaid application. However, this is not advisable because there are many planning opportunities that you would overlook, and there are many items of information that you may incorrectly provide. You can also have a nursing home prepare the Medicaid application for you, and some even do this for free. This is not advisable either, unless the family is unable to afford professional help.
Although the nursing home employees will try to file the application to the best of their abilities, they will not be well versed in the Medicaid rules the way professionals in our firm are. Rather, a nursing home will fill out a Medicaid application by filling in biographical data, factual information, and attach financial statements and hope for the best. But, they will not do any asset protection planning for the Medicaid applicant because they are prohibited from doing so by law.
Only lawyers can do asset protection planning for Medicaid. Finally, that leaves utilizing the services of a firm that specializes in Medicaid asset protection for seniors who are going into long-term care. Utilization of a firm well versed in Medicaid will likely result in more savings for seniors in the future.
When to file the Medicaid application? You can prepare a Medicaid application too soon, too late, or right on time. Preparing a Medicaid application too soon will mean that you will be forced to spend down assets that could otherwise have been saved. It may also mean that you may be filing prior to an expiration of the prior penalty period that will penalize you in your eligibility status.
You can also file for Medicaid too late, which means that you will have lost Medicaid eligibility, you may be out of money, and the facility that you’re looking to either go into, or are already in, will be extremely perturbed that there is no source of payment for them, while they are delivering their worthwhile services. That leaves the right time to apply for Medicaid application.
When is that time? It depends on the facts of the case. If a client is out of money you need to file immediately, however if a client still has money you need to start planning for the Medicaid application filing once the protection of assets is accomplished, or during the asset protection process. This will vary from case to case. As I indicated above, it is very easy to take the list of items that are required to be included in the Medicaid application, slap them together, and send the application in.
If, however, you’re looking for Medicaid eligibility, and you are trying to protect assets at the same time, the process is much more complicated and merits the retention of a law firm that engages in Medicaid asset protection planning for seniors who are going into long-term care.
Please remember that these Medicaid applications are thoroughly audited by DHS, and sometimes the Office of the Inspector General (OIG) for DHS, and they have high standards as to what must be included into the Medicaid application and how the information is submitted. Seek professional help in order to file your Medicaid application.
Installment 10 of 10
In Our Series:
“Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection through Medicaid in Illinois, for Middle Class Seniors and Boomers”
In the previous section of our 10 part series, we talked about preparing and filing the Medicaid application. Once that application is filed, a new challenge will present itself. One or two months after the submission of the application to the Department of Human Services (DHS), the approved representative for the Medicaid applicant will receive a call from either the DHS caseworker or the caseworker for the Office of the Inspector General (OIG), depending on where the application is being audited. The approved representative will then be asked to submit additional documentation that the caseworker feels needs to be expanded upon or completed. Oftentimes the data requested is in the initial submissions in the application, but quite often the caseworker will ask for something new in the way of an explanation regarding something related to receipts, expenditures, asset liquidation, or other unexplained transactions. It is extremely important that you comply with the requests made by the caseworker. The caseworker is allowed to give extensions of time of a limited amount in order to allow the approved representative to satisfy the request for additional documentation. If you do not submit the requested documentation in the appropriate time allowed by the caseworker, it is very likely that the caseworker will deny the application, and then your only alternative is to appeal the application and try to win on appeal. Appeal is very costly and unnecessary when all the documentation is readily available to be submitted. If the requested documentation is unavailable and is in the possession of a third-party, there is an administrative law that indicates that the state has the ability to request the information from the third-party, if the Medicaid applicant or their approved representative is unsuccessful in requesting this information from the third party. Nevertheless, with the substantial caseloads that the caseworkers have, it is not very often that they will make the request of the third party, rather they will continue to rely on the Medicaid applicant or their approved representative to obtain that documentation. Like every other step we discussed in this 10 part series, Medicaid applications for long-term care are the most important governmental benefit that many seniors will rely on. Notwithstanding the importance of this benefit, the process of planning for the benefit and the preparation of the application itself requires a special skill that some Elder Law attorneys have. To think that individuals themselves, or representatives of hospitals, or nursing facilities can handle complex Medicaid applications is a misjudgment. Start preparing for your long-term care at about age 55. Hopefully no application will be necessary at that time, but at least you can start the process of planning for the day when you may need to rely on the Medicaid benefit for long-term care services. The earlier you start, the more you are prepared and the more successful you will be in obtaining this very valuable benefit that saves many families the monthly nursing home cost of $7,000 to 10,000 per month.Installment 8 of 10
In Our Series:
“Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection through Medicaid in Illinois, for Middle Class Seniors and Boomers”
Picking a strategy is not something one can easily do on their own. Selecting strategies in order to minimize the cost of long-term care requires an understanding of both the requirements of sophisticated estate planning and access to governmental benefits. However in order to provide an overview of how strategies are selected, you must understand that strategies will vary depending on whether or not the senior is in one of the following phases:- Preplanning Mode
- Wait-and-See Mode
- Crisis Mode
Installment 5 of 10
In Our Series:
“Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection through Medicaid in Illinois, for Middle Class Seniors and Boomers”
Why create a Blueprint (Medicaid asset protection letter) for your asset protection planning? Just like in building a home, you don’t hire a contractor to start slapping bricks together until you have decided on the number of rooms, type of rooms, location of the rooms, etc. Likewise, many are quick to suggest creating a will, trust, powers of attorney, perhaps an irrevocable trust, or an annuity, etc. This can be very costly and foolish. How can you create a plan consisting of various documents that are supposed to protect you without a design in mind? Mindlessly putting together layers of documents accomplishes nothing except large bills. Before our clients create any legal documents we suggest to them that they do a blueprint, which is in effect a Medicaid asset protection letter. In that letter we outline the following:- Planning strategies that can be done in preplanning mode, or crisis mode, depending on where you are in the long term care journey.
- Planning strategies available for single individuals, or the community spouse when an ill spouse is going into a nursing home.
- An outline of the current status of the law as it relates to Medicaid eligibility.
- Finally, planning recommendations that are broken down into things that you must do immediately and things that you may be able to defer until later.
- Creation of powers of attorney for healthcare and powers of attorney for property. However, our powers of attorney have many more powers and are more substantial than the average power of attorney that most people have.
- Creating wills and trusts that have special needs trusts built into them for a surviving spouse or a minor or adult disabled child. This takes advantage of certain relief that Congress intentionally placed into the Medicaid laws.
- The purchase of a Medicaid compliant annuity or a Medicaid compliant promissory note.
- Our office files a Medicaid application.
Installment 4 of 10
In Our Series: “Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection Through Medicaid in Illinois, for Middle Class Seniors and Boomers”
In this part of our ongoing series of how to deal with the looming crisis associated with long-term care costs for the middle class, I would like to talk about when it may be necessary to revise wills and trusts. Also, what should newly restated revised wills and trusts look like? First of all, we should remember that during our maturing years, most people, especially those with children, will prepare wills and trusts that deal with what happens to their assets upon death. This is a very understandable and laudable goal, especially for those people that are afraid of leaving small children behind. However, as we go beyond our maturing years and start focusing on our senior years, the focus is no longer “what happens when we die,” the focus now changes to “what happens if I don’t die and I need long-term care for a long period of time.” When that becomes the concern of someone going into their senior years, wills and trusts must be modified in few different ways.- For single persons, there needs to be the ability to withdraw assets from a revocable living trust, or various types of asset management accounts, like pay on death accounts at a bank, transfer on death accounts at a brokerage firm, and IRA accounts. The reason for this additional withdrawal power is so assets can be withdrawn from these repositories and used elsewhere in accordance with planning techniques designed to preserve assets so that eligibility for Medicaid long-term care benefits, such as nursing home cost coverage, can be achieved. This would be a satisfactory result.
- In the case of married individuals, it becomes very important to be able to not only withdraw assets from various places, but also redirect assets in the event of the death of one spouse. Specifically, if we have two spouses, but one is in a nursing home, and the other spouse, who is otherwise healthy, should die unexpectedly, the assets of the deceased spouse will be transferred to the surviving spouse and those assets could be subject to a complete Medicaid required spend down for nursing home costs. This unfortunate circumstance can be avoided if the couple restates their wills and trusts. Rather than transfer assets to the surviving spouse directly, assets can be transferred to certain special needs trusts that are created for the surviving spouse who is residing in a nursing home. This type of special transfer will allow the surviving spouse to continue to receive benefits from Medicaid for their long-term care, and at the same time enjoy the inheritance left behind by the predeceasing spouse. This would also be a satisfactory result.
Installment 3 of 10
In Our Series: “Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection Through Medicaid in Illinois, for Middle Class Seniors and Boomers”
Many people ask, “What is guardianship in the state of Illinois?” Simply put, guardianship is the process of applying to a court to be able to legally assist an individual over the age of 18, if the person has a disability. A disabled person, for purposes of guardianship laws, is someone who cannot make basic life decisions or manage their own property or money. Due to the participation of the court system and the attorneys’ fees involved, this process is an expensive proposition and should be avoided at all costs, if possible. Guardianship is avoided by using other methods of surrogate decision making for disabled individuals such as powers of attorney, trusts, the Health Care Surrogate Act, and other related surrogate roles. Unfortunately, many people wait too long and do not have the authority to execute powers of attorney, trusts, etc. because they are incapacitated. In such cases, we are grateful that the guardianship court exists. Guardianship is achieved to the following general steps:- Filing of a petition for appointment of a guardian to be determined at a court hearing
- Issuance of service of summons;
- Appointment of a guardian and guardian ad litem, an unrelated individual who will be the eyes and ears of the judge in understanding the circumstances;
- Obtaining the necessary physician’s report establishing that the individual does not have decision-making authority, and;
- Giving notice to all spouses, children, siblings and agents under power of attorney so that they can concur or object with the guardianship itself.
- Uncontested guardianships: when everybody agrees with the process of the person selected, or
- Contested guardianships: when the Ward (the person that is the subject matter of the guardianship process) or someone known to the Ward may object to the guardianship, in which case the guardianship process becomes what is called a contested guardianship (which results in expensive litigation)
Installment 2 of 10
In Our Series: “Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection Through Medicaid in Illinois, for Middle Class Seniors and Boomers”
In this part of our 10 installment series I would like to discuss when it is necessary to invoke the services of a physician in the estate planning, long-term care planning and eldercare journey. Obviously if there are immediate health concerns a physician should be contacted straightaway, before legal counsel is sought. However, there are circumstances where, in the process of delivering not only medical services, but also in the process of offering legal services, that we discover that the involvement of a physician is necessary. This generally arises in cases where clients come in to execute powers of attorney for property and powers of attorney for healthcare. In cases such as this, generally speaking, most clients will be able to walk into my office, introduce themselves to me explain to me what they wish to request from our law firm regarding services and engage us for those services. However there are instances in dealing with aging seniors and disabled adults where it becomes clear to me, as a lawyer, that I cannot be sure that the prospective client has full mental capacity. Sometimes, diminished capacity manifests itself by being unable to express your thoughts, comprehend thoughts that are presented, or formulate judgments based on facts that are presented. As a lawyer, it is my duty to suggest that the client be evaluated to determine the level of their capacity when I suspect that a potential client may not have the ability to comprehend what I am recommending to them. This is unfortunate, because sometimes the physician will give an opinion that indicates that the potential client no longer has the ability to make sound decisions or comprehend matters set before them. When that happens, I, as a lawyer, cannot present a document, such as powers of attorney, to such a client for signature, because I may be asking them to sign something they do not understand— which is prohibited under the professional rules of conduct for lawyers. The client’s inability to sign these documents will often result in the failure to do further planning and may create the need to seek a guardianship through the court process so somebody can act as a surrogate decision-maker for this person who has now lost their cognitive capacity. Thus, it is my recommendation that you seek counsel as early as you can in your life to obtain and put in place documents that will reflect your choice of surrogate decision-maker so that if you can no longer make decisions for yourself, your choice will prevail. Unfortunately, many of our clients do not come into our office and request powers of attorney and other advanced directives, so that later on they are left to request the court system to assist them in surrogate decision matters through a full-blown guardianship proceeding. This is very expensive, time-consuming and impersonal. Conclusion Don’t leave your decision-making authority to the court system unless it’s an absolute last resort, because this is a very expensive and impersonal process. You are better off putting in place powers of attorney for healthcare, powers of attorney for property and other advanced directives that will allow the person you choose to seamlessly proceed to make decisions for you pursuant to the guidelines you have set forth. Don’t wait until it’s too late. Coming up in our future blogs in this series:- Revise Powers of Attorney – See Previous Article
- Contact a Physician – See Above
- Seek Guardianship
- Revise Old Wills and Trusts
- Create a Blueprint
- Inventory Assets
- Seek Placement in a Facility
- Select a Strategy
- Prepare and File the Medicaid Application
- Prepare for the Post Application Audit
Installment 1 of 10
In Our Series: “Long Term Care Costs for the Middle Class: 10 Steps to Asset Protection Through Medicaid in Illinois, for Middle Class Seniors and Boomers”
Problem: We had six families of aging seniors come in to our office this week all of which had powers of attorney that amounted to nothing more than a simple document that would be much more appropriate for clients who are 25 years old. This is a devastating problem that I can correct if the aging Senior has the requisite mental capacity to execute new documents. If, however, the Senior has diminished capacity, then we are left with these almost worthless powers of attorney that do not permit any repositioning of assets in order to properly plan for long-term care, and a path to Medicaid to fund such long-term care. Solution: Revise Any Powers of Attorney and Healthcare That You Currently Have, and While You Can. Powers of Attorney for Property: Most of the powers of attorney that we see in our office, while valid, are inadequate to allow the necessary repositioning and reclassification of assets to gain eligibility to Medicaid, VA, and other governmental benefits. Your power of attorney for property must permit, at a minimum, the following powers: the transfer of assets to family members and nonfamily members, with or without compensation being received in exchange; the transfer of the personal residence; the creation, funding, and revision of revocable and irrevocable trusts; the authority to apply for various governmental benefits, including Medicare, Medicaid, VA benefits and other benefits; and the ability to change beneficiary designations on various assets. This is only a small list of must-haves in your power of attorney for property. To give you an idea of the importance of this, we attach an additional five pages of these types of powers so that every client we have has a full toolbox of resources available to carry them through their maturing years and senior years. These tools are most often needed in the senior years when long-term care planning is a necessity so as to avoid having our seniors rendered penniless due to the devastating costs of long-term care. Be careful about selecting an effective date for your power of attorney. Remember you can sign a power of attorney today that either (1) takes effect today, or (2) takes effect upon a future event, such as when your doctor determines you are unable to make financial decisions for yourself. The approach you select will depend on your particular circumstances and your family composition. Remember, anyone can create a document, but correct elder law counseling about that document will help you achieve the best results. Contact your Chicago elder law attorney or Illinois elder law attorney today to discuss this. Powers of Attorney for Healthcare: In January 2015, the State of Illinois legislature enacted a new power of attorney for healthcare. However, some bar associations have found this version of the power of attorney to be ineffective in five or six important areas. As of this moment, these defects are being cured through pending legislation in the Illinois General assembly. The healthcare power of attorney is your authority to express your wishes about your care and your end-of-life wishes. Please keep your eyes peeled to this blog for an update on the changes that are forthcoming to make this important document better in the future. Summary: I hope this gives you a simplistic view about the importance of powers of attorney in the state of Illinois. These documents are critical to enable your agent to use Medicaid asset protection strategies to qualify you for Illinois Medicaid should you need institutionalized care. Remember, most of our clients are trying to preserve some assets for a “rainy day fund” in their senior years, and they are entitled to do so as a matter of exercising their civil rights so long as they do this legally and ethically. This planning is not done by wealthy individuals, as those persons can pay their way through any costs associated with long-term care. Rather, this planning is best done by middle class individuals who have worked to accumulate some savings, only to find that the cost of long-term care will make their life’s work disappear in no time. Our goal, as asset protection attorneys for the middle class, is to allow seniors to gain access to the Medicaid program, to use some of their own assets for their cost of long-term care, but also to enable them to preserve some of their assets, so that in their senior years, after a lifetime of work, they are entitled to some dignity and some resources to make a life in a nursing home more livable. Coming up in our future blogs in this series:- Revise Powers of Attorney – See Above
- Contact a Physician
- Seek Guardianship
- Revise Old Wills and Trusts
- Create a Blueprint
- Inventory Assets
- Seek Placement in a Facility
- Select a Strategy
- Prepare and File the Medicaid Application
- Prepare for the Post Application Audit