216 Higgins Road Park Ridge, IL, 60068 (847) 221-0154
I get asked, “What exactly do elder law attorneys do?” all the time. My answer could go on forever. However, briefly stated, elder law attorneys like myself focus on “senior” estate planning (in addition to traditional estate planning) longevity planning (aka long-term care planning), Medicaid, Medicare, special needs trusts, and VA benefits for those over the age of 65. Many people assume that an elder law attorney’s area of expertise is strictly wills and trusts. Wills and trusts are certainly part of the equation, but the truth is there is so much more to elder law. Here’s something else you may not know: wills really only control what happens after you die. Therefore, today’s seniors need both an estate and a longevity plan because both combined will help their families know what their wishes are in the event that they become incapacitated before they die. Elder law is still very different in comparison to traditional estate planning (death planning). A traditional estate plan is designed to do the following things:
  1. Minimize estate taxes
  2. Avoid probate court
  3. Distribute assets from the deceased person to his or her heirs
Elder law, however, is essentially death planning plus long-term disability and care planning (longevity planning). So, an elder law attorney is not only thinking about what happens in the event of your death, but also about your long-term health needs during your lifetime. Today, it is typical to see families spending thousands upon thousands of dollars  ($8,000-10,000) when both a husband and wife have long-term care needs. The operative goal of an elder law attorney is to help families protect their assets during their lifetime, to avoid spending all of that money. Remember: Elder law attorneys are here to maintain your current quality of life as much as possible on the long term care continuum, make sure you do not go broke in a nursing home and not just decide what your kids inherit after you pass away. -Anthony B. Ferraro

Remember that a Revocable Living Trust is like a door or an open box; things can come both in and out. The next type of trust that I want to explain is the Irrevocable Living Trust (IRLT). The irrevocable living trust differs from the revocable living trust (RLT) because once something is put into the IRLT, it is permanently there. Imagine that instead of a door that can be opened in an RLT, an IRLT is like a door that has been permanently locked. If you decide to put all of your assets in an irrevocable living trust and you need to get to them one day, you will have a big problem. Another way of putting it is is that it is like a box that can be locked. You’re probably asking yourself “well, why would anyone want to use an irrevocable living trust then?” The truth is, an IRLT is commonly used because it has asset protection, while an RLT does not. So, since many of us want some control over our assets, IRLTs and RLTs are generally created to work simultaneously. One example of a commonly used IRLT is a Medicaid Asset Protection Trust (MAPT). This special type of trust is used by people who need or will need to pay nursing home costs, but want to protect some their assets from being spent-down. In order to utilize this type of trust though, you must have enough money to potentially private-pay for long-term care during the entire 5-year penalty period. But sometimes, you can use this strategy and not have to be able to private pay for 5 years! Stay tuned to explore more options. -Anthony B. Ferraro

If you remember correctly, in order to be considered a “wartime” veteran, you or your loved one must have been discharged under conditions other than dishonorable and must have served 90 consecutive days of active duty. The 90 days must include at least one day in one of the following date ranges:
  • World War II: December 7, 1941 to December 31, 1946
  • Korean War: June 27, 1950 to January 31, 1955
  • Vietnam War: August 5, 1964 to May 7, 1975
  • Persian Gulf War: August 2, 1990 to (date not yet determined)
In order for you or your loved one to prove that you qualify, you must have you and your loved one’s discharge papers. If you are unsure about any of these things, don’t hesitate to call my office or a Veteran’s Service Organization.
Anthony B. Ferraro

Paying for nursing home care may be one of the toughest things many of us will have to do. It is no secret that today’s nursing home costs are sky high and they are only going to continue rising. Most of us automatically assume that we will have to spend our entire life savings on our nursing home care. Considering the prices of nursing homes, it certainly seems that this is the truth. However, there are ways around doing so. The first thing that you absolutely must do is contact an Elder Law attorney, like myself, before you venture into the process of selecting and paying for a nursing home. Today, many people aren’t incredibly educated in areas such as Medicare, Medicaid, and VA Benefits. Therefore, they don’t know about the ways in which those programs will be able to help them save money as they begin their long-term care journey. Luckily, we do. Always remember, talk to us first. It’s as simple as that. -Anthony B. Ferraro

Attention! Many of today’s Americans are under the assumption that VA Benefits only apply to servicemen and women who were injured or disabled while serving.  VA Benefits do largely apply to those men and women; however, there are also other VA benefits available to wartime veterans who are senior citizens currently paying for long-term care.  Wartime veterans have earned this right simply by serving our country, even if they were not injured during their time of service. Note, wartime veterans and their spouses who do not have disabilities as a result of serving are eligible for the Special Monthly Pension benefit when they are 65 and older, permanently disabled and unable to work, homebound, or in need of regular aid of another person.  The Special Monthly Pension benefit is based on the need for financial assistance, so there are income and asset limitations. If any of the above situations apply to you, I recommend getting the necessary paper work ready in order to prove you qualify for such benefits.  This may require a doctor’s visit or paperwork from the nursing home or assisted living facility stating that you or your loved one is permanently disabled. -Anthony B. Ferraro

Financial institutions like banks are now demanding up-to-date documents when dealing with both powers of attorney and revocable living trusts. This impacts Medicaid and long term care. If you have a power of attorney for property, it probably says that your loved one can act on your behalf as your agent.  But because Medicaid has very complicated rules, someone acting on your behalf may need to make changes to the way your assets are held.  Typical power of attorneys or property do not allow your agent to make changes to your estate plan or create other documents that can protect you and your healthy spouse from going broke because of long term care costs. One thing many traditional estate planning attorneys are doing for married couples is creating a joint revocable living trust, which often transforms itself into an irrevocable trust when one spouse becomes disabled.  Once this happens, the healthy spouse would not be allowed to make changes in the way the assets are held; thus forcing the healthy spouse to spend an excessive amount of assets to care for the ill spouse before he or she can qualify for Medicaid.  This is something we elder law attorneys want to prevent from happening. Nobody wants to be out of money.  Our job as elder attorneys is to help you receive quality healthcare and preserve your options.   Thus, your plan should be updated to ensure absolute solvency if possible, legally and ethically.  This includes a power of attorney that allows your agent to be able to take very special actions to protect you and your loved ones financially. Please contact me today if you would like me to review your current documents to make sure you have the protection you deserve. -Anthony B. Ferraro

We are witnessing a sea change in it in tax planning due to two new developments:  1) The new “portability” of the estate tax exemption for our clients The concept of portability allows the surviving spouse (widows and widowers) to carry over the estate tax exemption of the spouse who died and add it to their own exemption amount. However, to take advantage of this action you must “elect portability”. This means your executor, with the assistance of estate tax counsel, must handle the estate of the spouse who has died and file a federal estate tax return, even if there are no estate taxes due. Further, this estate tax return must be filed within nine months of death. However, the Internal Revenue Service has recently issued a Revenue Procedure creating some relief for people who fail to make this filing. Portability has the additional advantage of allowing assets to get a basis adjustment to fair market value after the date of the surviving spouse’s death. By contrast, this step up in basis is not available for assets that went into a bypass or credit shelter trust at the first spouse’s death. Most of the readers of this article have just those kinds of trusts. Specifically, the types of trusts that will not allow step up and tax basis and probably result in more income tax being due than is necessary. Note: This means that it’s probably a good time to review existing wills and trusts. 2) Increased demand by clients for increase in tax basis to avoid increasing capital gains tax from 15 to 20% On January 2, 2013 the capital gains tax increased from 15% to 20%.  Furthermore, Obamacare introduced a 3.8% Medicare tax that applies to capital gains. The combination of these two taxes can result in capital gain taxes of up to 23.8%. This can be a bad result especially when an estate consists of a trust or trusts created to eliminate estate tax but no estate tax, will be due. In 2014, no estate tax will be due unless a husband and wife have a pooled net worth of approx. $10.5 million! Therefore a review of trusts is suggested. It makes no sense to have trusts that avoid estate tax that you will never pay while those same trusts will force you to pay 23.8% in capital gains tax, when that 23.8% tax does not have to be paid at all. In short, the only way that this can be resolved is by creating a potentially taxable estate on the death of the first spouse to die that will fall below the $10.5 million taxation threshold. Simultaneously because the estate of the deceased spouse is left in a way that is potentially taxable to the surviving spouse, the surviving spouse gets to step up in income tax basis at their death. The net result is no estate tax and no income tax due. I would call that a pretty good days work. I have written on this topic before but because it is so immensely important I have chosen to dedicate another article to this concept of estate tax elimination combined with income tax income tax elimination. Still think it’s not time to review that estate plan? Think again.
Anthony B. Ferraro
Attorney – MS Tax – CPA

Hopefully by now you understand the basics on what a trust is, so we are going to look at one of the most common types of trusts, the Revocable Living Trust.  The easiest way to remember what exactly this is by remembering that “revocable” means you can change your mind, so like the meaning of the word, you can make changes to the trust. A revocable living trust is like a door.  Things go in and things go out.  For example, if today you open a checking account, it can go in the trust.  Another few months go by, and you open a savings account.  Then you decide to buy some stock in your favorite company.  You can put it all in the name of the trust. But what if you need to take something out of the trust?  That’s why it’s a good thing that this kind of trust is like a door!  You can take an asset out if you need to. Additionally, if you suddenly pass away, so long as your trust has written instructions to your successor trustee, your family should not have to go through probate after you die because your trust is holding all of your assets securely. Remember though, that this is not the only kind of trust available to you.  Revocable living trusts do not have any asset protection, and that may be something you need if you need long-term care, for example. More on other types of trusts to follow. -Anthony B. Ferraro

Yes, the cost to care for Alzheimer’s patients is rising and the rapid cost increases show no sign of stopping.  And unfortunately, that is not the only figure rising; the percentage of seniors with Alzheimer’s is also steadily increasing.  Statistics show that between 2010 and 2050, the number of people with Alzheimer’s is expected to jump from 5.5 million to 14 million. So, how do we pay for adequate Alzheimer’s care? In reality, many people do not understand the difference between Medicare and Medicaid.  Medicare simply does not pay for long-term care.  Medicare actually only cares about your loved one if they are going to get better, i.e. if they suffer from a stroke or a heart attack, and can recover with rehab.  And as we know, Alzheimer’s disease does not fall into that category; so if your loved one has Alzheimer’s, your loved one will have to rely on Medicaid if they do not have enough money to pay privately for care. Medicaid expenses for people with Alzheimer’s are very high due to the uninsured cost of long-term care.  Approximately half of Medicare beneficiaries with Alzheimer’s disease also qualify for Medicaid, because they exhausted their own financial resources to pay for all of their long-term care.  And when someone is relying on Medicaid, often times they can only keep $2,000 in savings and $30 per month. At least that’s what the federal and state governments want you to believe. There are numerous exceptions to this general rule however. And, there are certainly ways to protect you and your loved ones’ well being  assets so that you can work around this. Stay tuned for more. -Anthony B. Ferraro

There are some little-known groups whose members may be eligible for VA Benefits. The good news is, there are a lot of these little-known groups, so that means that many of you may be eligible for VA Benefits without even knowing it. If you or your loved one belongs to any of these groups, and received a discharge from the Secretary of Defense, your service may meet the active duty requirements for benefits:
  • Recipients of the Medal of Honor
  • Honorably discharged veterans, spouses, or children of any military, naval, or air service
  • Women’s Army Auxiliary Corps (WAACs)
  • Merchant Marines from WWII (ocean-going service)
  • U.S. Civilians of the American Field Service
  • Women Air Force Service Pilots (WASPs)
  • WWI Signal Corps Female Telephone Operators Unit
  • WWI Engineer Field Clerks
  • Female clerical employees of the Quartermaster Corps serving with the American Expeditionary Forces in WWI
  • Civilian employees of the Pacific naval air bases who actively participated in defense of Wake Island during WWII
  • Reconstruction aides and dietitians of WWI
  • Male civilian ferry pilots
  • Wake Island defenders from Guam
  • Civilian personnel assigned to OSS secret intelligence
  • Guam Combat Patrol
  • Quartermaster Corps members of the Keswick crew on Corregidor during WWII
  • U.S. civilians who participated in the defense of Bataan
  • U.S. merchant seamen who served on block ships in support of Operation Mulberry in the WWII invasion of Normandy
  • American merchant marines in oceangoing service during WWII
  • Civilian Navy IFF radar technicians who served in combat areas of the Pacific during WWI
  • U.S. civilians of the American Field Service who served overseas under U.S. armies and U.S. army groups in WWII
  • U.S. civilian employees of American Airlines who served overseas in contract with the Air Transport Command between 12/14/41 and 8/14/45
  • Civilian crewmen of certain U.S. Coast and Geodetic Survey vessels between 12/7/41 and 8/15/45
  • Members of the American Volunteer Group (Flying Tigers) who served between 12/7/41 and 8/14/45
  • U.S. civilian flight crew and aviation ground support of Consolidated Vultee Aircraft Corp. who served overseas between 12/14/41 and 8/14/45
  • Honorably discharged members of the American Volunteer Guard, Eritrea Service Command, between 6/21/42 and 3/31/43
  • U.S. civilian flight crew and aviation ground support of Northwest Airlines who served overseas between 12/14/41 and 8/14/45
  • U.S. civilian female employees of the U.S. Army Nurse Corps who served in the defense of Bataan and Corregidor from 1/2/42 to 2/3/45
  • U.S. civilian flight crew and aviation ground support of Brantiff Airways who served overseas in the North Atlantic between 2/26/42 to 8/14/45
  • Chamorro and Carolina former native police who received military training in the Donnal area of central Saipan and were placed under command of Lt. Casino of the 6th Provisional Military Police Battalion to accompany U.S. Marines on active, combat patrol from 8/19/45 to 9/2/45
  • The operational Analysis Group of the Office of Scientific Research and Development, Office of Emergency Management, which served overseas with the U.S. Army Air Corps from 12/7/41 through 8/15/45
  • Honorably discharged members of the Alaska Territorial Guard during WWII
You or your loved one must have served in active duty for 90 consecutive days (either in the U.S. or abroad), at least one day of which was during a period of war, in order to meet these requirements.  That does not however mean that you must have served overseas, you could have served either at home or abroad. -Anthony B. Ferraro CPA, MSTax, JD