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Spousal Refusal And Medicaid Planning

elder care attorney medicaidIn the States of Connecticut, Florida and New York spousal refusal to pay for a spouse’s medical expenses can be an acceptable Medicaid planning technique. The spouse of an individual who goes into a nursing home and applies for Medicaid is referred to as the “community spouse.” This spouse can keep approximately $3000 a month of the family’s combined income. In addition the community spouse can keep about $100,000 in assets which is referred to in Medicaid jargon as “resources.” Exempt assets such as car and the home the parties reside in are not included. The spouse that is going to go into the nursing facility is referred to as the “institutionalized spouse.”

$3000 A Month Is Not Enough

In a situation where the community spouse cannot live on the $3000 a month which is exempt from Medicaid, spousal refusal becomes an important option. The first step is the moving of assets from being held jointly to being solely in the name of the community spouse. An elder care attorney can prepare a document indicating the community spouse is refusing to contribute his or her income and assets to the care of the institutionalized spouse. The document provides reasons for the community spouse needing more than $3000 a month to live on. If the community spouse exercises spousal refusal and then meets other requirements to qualify for Medicaid benefits, the New York State benefit program must pay the expenses for the institutionalized spouse.

Department of Social Services Suing Community Spouse

The Department of Social Services can institute a law suit against the community spouse to recover all of the expenses paid by Medicaid. The purpose of the law suit is to force the community spouse to reimburse the Department of Social Services. So why should a community spouse risk this law suit? There are good reasons for this. To start with there is no guarantee the Department of Social Services will be successful in the law suit. Even if the Department of Social Services is winning the law suit, these law suits are often settled for less than the entire amount which is due and owing. In the event the Department of Social Services is successful in the law suit, it may only obtain payment for the Medicaid reimbursement rate and not for the much higher private pay rate the institution would charge for taking care of the institutionalized spouse. The private pay rate is usually $3000 to $5000 a month higher than the reimbursement rate for Medicaid.

Elder Care Planning: The Best Route

The first option should be to purchase long term care insurance. If this is not a viable option, the next best way to deal with elder care related issues concerning Medicaid is to hire an elder care lawyer to prepare an irrevocable MAPT trust at least five years before any potential need for Medicaid benefits.

elder care planning and medicaid

Retirement Problems

estate planning lawyerDo you have enough money to retire? This is a question baby boomers are starting to think about. How much money do you need before you retire? What is the best way to plan for retirement?

When Should You Start Saving?

Experts agree that you should start saving for your retirement as early as possible. The longer you defer putting aside money in a 401(K), IRA or through a pension plan the less likely that you’ll have sufficient funds to last during the term of your retirement.

Medicare and Medical Expenses

Medicare will not be sufficient to cover your medical expenses during retirement. A study by Fidelity Investments found a 65 year old couple retiring in 2012 would need to spend $240,000 to cover their medical expenses during the time of their retirement. If you retire at 65, you will need to set aside a quarter million dollars just for medical expenses!

Maintaining Your Standard of Living In Retirement

Baby boomers facing retirement often receive mailings from retirement communities showing retirees living the good life. The question is, how much does the good life cost? Will it be cheaper to live the good life in your senior years than you’re living expenses were when you were working? Studies show you will need approximately 75 to 80% of the income you had a while you were working to maintain your lifestyle in retirement. When you are retired you will have more time available to go on vacations and you may find that the good life is not inexpensive.

Should You Wait To Retire?

Now that Americans are living longer, should they consider 65 a reasonable retirement age or should they wait until their 70 or older to retire? Many Americans working for large corporations are deprived of the choice of working through their sixties into their seventies. Large corporations tend to push older employees out by offering them incentives and other packages. Should you lose your job when you are 55 or 60 years of age, you will find many employers are reluctant to hire older Americans.

Conclusion

Be careful when you retire. You don’t want to outlive your money!

About the Author

prepares and litigates wills and trustsElliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He assists seniors with regard to wills, litigation, Medicaid issues and estate litigation.

Trust Documents Declared Void Due to Lack of Mental Capacity

estates and trusts attorneyIn a case before Robert Gigante, sitting in Richmond County, New York, the Surrogate Judge had set aside a trust based on the lack of mental capacity of the individual who executed the trust. One of the decedent’s children contacted a lawyer and requested the trust document to be drafted. The lawyer drafted the documents pursuant to the request of the decedent’s child. However, the lawyer never met or spoke with the decedent. The lawyer relied on the child’s statements and a letter from a physician stating the decedent was “in an acceptable mental status.”

The court took the position there were questions as to whether the decedent could understand the terms and the conditions of the trust. A hearing was held. A doctor testified he didn’t believe the decedent could read and understand a sales contract. In its decision, the court stated no rebuttal testimony or evidence challenging the doctor’s conclusions was submitted to the court.

The court found the decedent lacked the requisite mental capacity necessary for the purpose of executing the trust. The court therefore set aside the trust.

About the Author

surrogates court helpElliot S. Schlissel, Esq. is a member of the National Academy of Elder Law Attorneys. He represents individuals in will contests, litigation regarding trusts and all other estate related matters. He offers free consultations to his clients.

The Right To Die

long island attorneyThere was a recent case in Long Island, New York concerning issues surrounding “the right to die.” Sungeon Grace Lee, age 28, decided her life was no longer worth living. She advised her doctors she wanted to end her life by cutting off the life support system keeping her alive. Her parents, who are deeply religious, vehemently opposed their daughter’s wishes

Tumor On Her Brain

Ms. Lee had a tumor on her brain stem. She had been suffering from seizures. During one of her seizures she was rushed to North Shore University Hospital in Manhasset, New York. The seizure left her paralyzed from the neck down. At that time, she was hooked up to a life support machine that allowed her to breathe.

Parent’s Sue To Keep Daughter Alive

Ms. Lee’s mother, Jin Ah Lee, and her father, Man Oh Lee, a Pastor of the Antioch Missionary church in Flushing, Queens, were both deeply religious people. They retained an attorney and obtained a restraining order preventing their daughter from ending her life. After protracted litigation, both the trial court and appellate court set aside the petition of Sungeon Lee’s parents. In their decision, the courts indicated that the daughter was competent to make her own medical decisions. However, in the end, Ms. Lee agreed to withdraw her request to be allowed to die and complied with her parents’ wishes.

Ms. Lee has been moved from North Shore University Hospital to her parents’ home where she is competently taken care of.

About The Author

elder care helpElliot S. Schlissel, Esq. is an Elder Law Attorney with more than 35 years of legal experience. He represents individuals concerning Medicaid planning, wills, trusts and estate matters, end of life issues and estate planning matters.

Amending Irrevocable Trusts

estate planning attorneysIrrevocable trusts are an invaluable estate planning resource. However, due to tax changes (fiscal cliff) and other issues, irrevocable trusts with an estate plan in mind, need to be changed related to subsequent modifications of estate tax laws. Can irrevocable trusts be amended? The answer to that is yes, in certain circumstances.

New York Estates, Powers and Trusts Law, section 7-1.9, provides a means to modify, change or amend an irrevocable trust. This section of law allows the settlor, the individual who made the trust, upon written consent of all trust beneficiaries, to amend or revoke the trust in whole or in part. In the event that one beneficiary refuses to agree to the modification or is unable to consent to the modification, this section of the estate law cannot be utilized to amend or modify the trust. Examples of situations, where trusts cannot be amended are when one of the beneficiaries is a minor, an incompetent or the settlor has died.

In the event the settlor becomes incapacitated but has previously executed a Power of Attorney, the individual with the Power of Attorney can provide consent on behalf of the settlor to the amendment or modification of the trust.

Decanting A Trust

Section 10-6.6 of the New York Estates, Powers and Trusts Law allows trusts to be decanted. Decanting involves the moving of trust assets from one irrevocable trust to another trust. The new trust can be modified even if a necessary person under EPTL section 7-1.9 was unable to get consent for an amendment under this section.

Conclusion

Should you have an irrevocable trust and wish to make changes, modifications or alterations, New York law allows various routes to accomplish these goals. You should consult with an experienced estate planning attorney if you or other family members face this issue.assistance in planning your estate

No More Golden Years

retirement planning for seniorsRetirement is supposed to be the “golden years.” Today, the golden years maybe a thing of the past. It is estimated three quarters of Americans facing retirement age have approximately $30,000 in savings. The failure of Americans of retirement age to develop a significant amount of savings may have a long term impact on retirement in United States.

401K Plans Versus Pensions

In the past, Americans of retirement age relied on pensions for monthly income. Extremely few Americans still have pension plans. Pension plans were replaced decades ago by 401 K plans, for most Americans. These 401 K plans presumed Americans would have the foresight and ability to save on a regular basis for their old age.

Teresa Ghilarducci, a Professor of Economics at the New School, in a recent New York Times interview stated individuals were “asked to do what they were not responsible enough to carry out, which was to set up a long term savings plan that anticipated future financial needs.” The savings accumulated by the middle class senior citizens will not be sufficient for the large majority to support their standard of living. It is estimated Americans should save eight times their annual income to maintain their living standards.

Retirement In Poverty

The majority of Americans, when they reach retirement age, will have allocated less than $5.00 a day for food. This will put them at the poverty level. Social Security will not provide a safety net sufficient to meet retired Americans long term needs. Americans should look at Social Security as a base for their savings not as a safety net. It will not be enough to live on! This is especially true with the movement among certain political parties to reduce government benefits to senior Americans.

Job Opportunities For Seniors

When a worker who is more than 55 years of age loses his or her job they find it difficult to find new employment. When they find new employment they are often required to work for reduced wages or on a part time basis. The unemployment rates among Americans 55 and older are higher than those of the general population.

About The Author

elder planning and estate administrationElliot S. Schlissel is in elder care attorney helping senior Americans in dealing with medicaid issues, nursing home issues and drafting wills, trusts and healthcare proxies.

Retirement: It May Not Be A Choice!

estate planning lawyerJob growth in the United States has been weak for a number of years. However, there is one group in the American population that has a higher level of employment than in previous decades. This group encompasses “older Americans.” More than 7.2 million Americans over the age of 65 are now working. This is more than twice as many that were employed 18 years ago. Why are a lot of older Americans working today? Simply speaking, they have to!

Savings In 401K’s Are Down

The amount of money in 401K plans and equity in homes of older Americans has decreased during the recent recession. During this period of time, the expenses for senior citizen’s health care and daily living expenses have increased.

Living Longer

Americans today are living longer than they have in the past. This makes working beyond 65 years of age much easier. Many Americans work to stay active and productive. However, the most significant factor in Americans working well into their seventies is financial need.

In a study regarding retirement financial confidence conducted by Employee Benefit Research Institute, only 14% of Americans polled felt they would have enough money to live comfortably in retirement. Is retirement no longer an option?

About The Author

Elliot S. Schlissel practices elder law and has more than 30 years of experience assisting his clients regarding retirement issues, estate matters and Medicaid planning issues.assistance in planning for retirement

Reverse Mortgages

estate planning attorneyA reverse mortgage is a means by which seniors utilize the equity in their homes. The equity is turned into cash. It can be used to supplement social security, pension payments, and 401K plan withdrawals. In most situations, the proceeds of a reverse mortgage are taken out in a lump sum. Arrangements can be made to have periodic payments over the period of your life, too.

The big benefit of a reverse mortgage is you don’t have to repay it during your lifetime. It gets repaid upon your death. The drawback of a reverse mortgage is it tends to have a higher interest rate than conventional mortgages. In addition to interest payments and an annual insurance charge, the Department of Housing and Urban Development’s home equity conversion reverse mortgage program level an initial one time insurance premium from 2% to .01% on your home’s value. It should be noted as with any mortgage, there will be closing costs regarding reverse mortgages.

New York Estate Planning Lawyers

Whether you take out a reverse mortgage or not is a complicated question. You should meet with an estate planning attorney. Discuss your finances and the consequences of a reverse mortgage before proceeding to take one out.assistance in planning for retirement

Retirement Financial Pitfalls

Planning for retirement is difficult.  Today, nest eggs are much smaller than they have been in the past.  Many individuals and families plan for retirement at the last minute.  This can cause problems.

Save And Invest

Americans need to save today, not tomorrow.  It takes a lot of will power to forego today’s pleasures and have money for the long run.

Retirement Is Not A Permanent Vacation

Some TV advertisements present retirement as a permanent vacation.  You see pictures of individuals playing golf in a Shangri-La type atmosphere.  Americans are living longer today.  The Shangri-La atmosphere presented in those pictures can become boring and stale.  Even if you can afford living in a retirement community of that type, life expectancy can stretch retirement for as long as thirty or forty years.

Unanticipated Expenses

A Study by Fidelity Investments indicates a couple who are 65 years of age when they retire will need more than $250,000 to pay for medical expenses throughout their retirement.  These medical expenses do not include nursing home care.  The study found the average medical expenses for a 65 year old couple amounted to more than $530 per month.  It should be noted Medicare is not free and doesn’t cover all medical expenses!

Be Careful With Your 401K Plan

A 401K Plan is retirement plan.  Many people borrow large sums from their 401k plans and are not able to pay these sums back. Depleting your 401K plan can have a significantly negative impact on your ability to retire.

Be Careful Of Your Priorities

Steven Cuhna, a certified financial planner with Bay Street Financial Services, suggests you remember the 5 P’s regarding retirement,  Prior Planning Prevents Poor Performance.  You should have a plan that analyzes your financial goals, retirement needs, investment and estate plan.  You may live a long time but you will not live forever.  Having a will and/or irrevocable trust may be necessary to help you preserve your assets.  Another solution is to never stop working!

Estate Planning

Who needs estate planning?  Probably you do!  Estate planning does not relate to an individual’s net worth.  The purpose of an estate plan is to see to it that your financial goals and the financial goals of your family can be met even after you die.

There are several elements of an estate plan.  A will, a power or attorney, a living will and a health care proxy.  These basic documents comprise an estate plan.

Why You Need A Will

A will is a very basic document in which an individual lays out what he or she wants to happen to his or her assets upon death.  It can also name guardians to the decedent’s minor children.  A major reason for having a will is that if you die without a will you are considered to have died “intestate”.  Individuals who die intestate will expose their heirs and loved ones to additional expenses in dealing with the complications involved with estate administration.

Are Trusts Only For The Rich?

Trusts are documents that allow you to control your assets and its distribution after you die.  Trusts can also be utilized to reduce estate and gift taxes.  Trusts are no longer for the rich.  They’re a valuable estate planning device many middle class families utilize.

Annual Gift Giving

Each individual may give up to $13,000 a year or $26,000 if you are married and giving the gift in conjunction with your spouse.  In addition you can pay an unlimited amount in medical and educational expenses for an individual if these funds are paid directly to the institutions that provided the medical or educational services.

Estate Planning Lawyers

Estate planning is a sophisticated undertaking.  You should utilize experienced well thought of estate planning attorneys to handle these sophisticated transactions.  The law Offices of Schlissel DeCorpo have been drafting estate plans for their clients for over thirty years.  The firm probates wills.  They litigate contested wills.  The firm’s attorneys have extensive experience in bringing guardianship proceedings, drafting revocable living trusts and irrevocable living trusts.  Elliot S. Schlissel, Esq. is a member of the National Academy of Elder Care Attorneys.  He provides all types of elder care counseling to his clients including issues involving nursing home abuse, Medicaid, Medicaid planning techniques, specials needs trusts for special needs children which are also referred to as supplementary needs trusts.  Feel free to call our office for a consultation.

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