Archive for the ‘Trust Attorney’ Category

Budget includes expanded Medicaid Recovery

We now have the wording of the NYS Budget Bill in regard to the expanded recovery from estates of Medicaid recipients. The legislation states that in addition to assets passing under a valid will or by intestacy,

“..an individual’s estate also includes any other property in which the individual has any legal title or interest at the time of death, including jointly held property, retained life estates, and interests in trusts, to the extent of such interests;…”

The legislation takes effect April 1, 2011. There is no reference to grandfathering such  assets created prior to the effective date. There will be efforts made to modify the legislation to include grandfathering. Hopefully these efforts will be successful.

Medicaid planning will be significantly affected by this new legislation.

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.

Mediation

At a recent networking event I met a woman who is an attorney and licensed social worker. She currently provides mediation services for couples seeking a divorce. She is considering using the benefits of mediation in elder law matters. I think that such a service might be very valuable in matters such as contested guardianships, family issues in estate planning matters, disagreements over medicaid planning strategies, conflicts when 2 agents under a power of attorney, executors under a will or trustees of a trust must act together and cannot agree.

Coping With The Loss of A Spouse

The passing of a beloved spouse is an awful thing.  The emotional loss coupled with the disappearance of the day to day companionship leaves the surviving spouse trying to fill a cavernous space.  In her June 15, 2010 New York Times column, Jane E. Brody  writes of the challenging job a surviving spouse has in making an emotional adjustment to the loss.  I think you will find the column interesting and you can access it at http://www.nytimes.com/2010/06/15/health/15brod.html. Ms. Brody not only addresses the difficulties of the emotional issues surrounding the loss of a spouse but  she concludes her column by remarking on the concerns many widows and widowers have in regard to what will happen as they age and perhaps grow ill and require long-term care. This is a real concern.  One way to assuage these fears is to learn about what the options are in regard to receiving long-term care and how to pay for long-term care.