Archive for November, 2010

Does Your Power of Attorney Provide for Creation of Pooled Trusts?

There may come a time when you are seeking to apply to the Medicaid program to provide an aide at home. If you are eligible and have income over the Medicaid income allowance ($787 in 2010) Medicaid will direct that you pay your excess income to the agency providing the aide.  However, you have a there may come a time when you are seeking to apply to the Medicaid program to provide an aide at home. You have a much better alternative: to open a pooled trust account with a non-profit trust company. The pooled trust will receive your excess income, charge a reasonable fee, and pay your bills with the excess income.

The problem we have seen occurs when the person needing the home care services is no longer capable of entering into legal transactions and cannot set up the pooled trust. In that case the agent under the Power of Attorney can do so if the document specifically gives the agent the authority to create and fund trusts. If the authority has not been given, the next option would be to start a guardianship proceeding to allow for the trust to be set up. This is a costly and time consuming effort.

If your agent does not have the authority specifically stated to create and fund trusts you may want to consider revising your Power of Attorney, a much better alternative: to open a pooled trust account with a non-profit trust company. The pooled trust will receive your excess income, charge a reasonable fee, and pay your bills with the excess income.

The problem we have seen occurs when the person needing the home care services is no longer capable of entering into legal transactions and cannot set up the pooled trust. In that case the agent under the Power of Attorney can do so if the document specifically gives the agent the authority to create and fund trusts. If the authority has not been given, the next option would be to start a guardianship proceeding to allow for the trust to be set up. This is a costly and time consuming effort.

If your agent does not have the authority specifically stated to create and fund trusts you may want to consider revising your Power of Attorney.

Medicaid 5 Year Look Back in Full Effect February 2011

An applicant for institutional Medicaid benefits must submit financial documentation so that Medicaid can determine whether the applicant made non exempt transfers of assets prior to applying. Such transfers would result in a period of ineligibility for the applicant. For several years, an applicant needed to supply financial documentation for the prior 3 years. The Deficit Reduction Act of 2005 (DRA) changed the look back period to 5 years effective February, 2006.

This 5 year Medicaid look back period has been phased in slowly. For each month after the DRA was enacted, one month was added to the 3 year look back. Assets transferred before February, 2006 came under the 3 year rule.

Starting in February, 2011, the look back will be the full 5 years set out in the DRA.

Super Lawyer 2010

I have just returned from a New York State Bar Association Elder Law Section Meeting where I addressed Section Members on the newest developments regarding surrogate health care decision-making. This happened to roughly coincide with the publication of the Top 50 Women SuperLawyers List, and many of my colleagues at the meeting congratulated me for making the list.  I feel honored, though I have to say it is an unusual feeling to be publicly acknowledged in this way.  Our firm works hard to help people with their problems, so it’s a funny thing  when word gets around!

It has been a great year for our firm, Raskin & Makofsky, because  both my partner Judy Raskin and I were named to the SuperLawyers List in the Elder Law category. We are very proud to have both firm partners named and to be two of the twenty nine listed Elder Law attorneys in the New York Metropolitan area. The SuperLawyers List, which begins with nomination by one’s peers and factors in credentials, experience, and awards, represents the top five percent of lawyers in New York State. That must also mean that our clients are in the top five percent as well, doesn’t it?