Posts Tagged ‘asset protection’
My colleagues recently elected me to the Board of Directors of the National Academy of Elder Law Attorneys (“NAELA”) New York Chapter at the group’s January 2011 Annual Meeting. One of the main functions of the Chapter is to advocate and lobby for legislation which will benefit older adults and the disabled and their families.
Now is an especially auspicious time to be in a leadership position within this organization because there is much work ahead for the NAELA New York Chapter. New York State is in the midst of a budget crunch. Governor Cuomo recently created a Medicaid Redesign Team whose purpose is to find ways to save money within the Medicaid program. In the Governor’s 2011 proposed New York State budget he slashed $2.8 billion in spending for Medicaid programs. The likely loss of Federal matching funds will roughly double these proposed cuts to the Medicaid program. In searching for ways to implement these cuts it is possible that spousal refusal will come under attack and that penalty periods will be proposed for those applying for Medicaid at home.
I look forward to assisting NAELA in advocating for the protection of those individuals who rely on the Medicaid program. I will keep you posted on what happens next.
We all like to think that we will live a really long time. Although many of us harbor fantasies of being able to retain our youthful hearts and bodies, ninety is not the new sixty. Young old is different from old, old and we need to be sure that we are prepared for it. Susan Jacoby authored a thoughtful essay in the December 31, 2010 edition of the New York Times entitled Real Life Among the Old Old. In her essay Ms. Jacoby reflects on her Mom who appeared active and ageless at 75 but who at ninety, has no more “adventures” in her future, because pain from age related illnesses made the smallest errand an “excruciating effort.”
Modern medicine has many living longer and longer. According to Ms. Jacoby the over 85 set is the largest growing segment of the over 65 population and at least fifty percent of this population will spend some time in a nursing home before they die because of a mental or physical disability. Ms. Jacoby’s musings point out that we all need to have a plan for health care decision-making, surrogate financial decision-making and a plan for protecting assets in the event long term care is required at home or in in a nursing home. Ninety is not the new sixty, do you have a plan?
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 Re duction 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.
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 publically 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?
Recently I gave the keynote address for the Annual Meeting of the Visiting Nurse Association of Long Island, Inc. I titled the presentation, “Long-term Care: The Middle Class Dilemma.” The dilemma for the middle class is having too much to qualify for Medicaid and other government benefits but too little to pay for care without spending down a lifetime of savings. Many think that as they get older Medicare will pay for all medical costs. This is a sorry fable. Medicare does not pay for the custodial care that long-term care requires.
Long-term care insurance is a good investment for those who purchase it early enough to make the insurance affordable. The problem for many is that the insurance becomes too expensive to purchase as the individual gets older or some pre-exisiting medical problem makes the individual uninsurable. So again it is a middle class dilemma. Recent legislative initiatives have tried to address the dilemma on the federal and state levels but none go far enough in finding a solution for the hard working middle class. Medicaid, a program originally envisioned as the medical safety net for poor people, is often the only option available for extended payments for long-term care needs. Medicaid eligibility often requires impoverishment.
It is the fear of losing a lifetime of savings if long-term care is required which sends many to seek the advice of an Elder Law attorney. Medicaid rules are complicated, often penalty periods are imposed, but generally the sooner one starts planning the better the result.
So how did this keynote address end after I had explained the difficulties of financing long-term care? I advised those present that there was one sure fire solution to the dilemma. Live a long and healthy life, enjoying everything along the way. Good advice for everyone!