Elder Law Update – May 2008

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.