LONG TERM CARE: Elder Estate Planning
ASSET PROTECTION
The ability to pay for long-term care is a paramount concern among retirees and aging Americans. With elder estate planning, we develop strategies that will enable seniors to afford long-term care options — and afford it, when needed, with government benefits for over-65-individuals, including Medicaid — while preserving exempt assets for their future care and for their families.
Depending on the state of an elder client’s health, Medicaid Planning takes two forms. Ideally, we can assist with Advance Elder Estate planning, using tools under federal and state regulations to preserve assets well before the onset of long-term care costs. An essential component to this form of planning is to create a Medicaid Asset Protection Trust, a specialized trust that achieves compliance with specific federal and state Medicaid laws. The second form of planning is Crisis Elder Estate planning, which uses those same tools provided under Medicaid regulations, and which is then coupled with an eligibility plan to preserve as many assets as achievable under Medicaid law.
POWERS OF ATTORNEY
Powers of Attorney are important tools that allow an agent to make certain defined decisions on your behalf. Kentucky law requires those powers to be spelled out specifically, which means an effective POA usually consists of more than three or four pages. In the event of incapacity, it is crucial to have executed a Power of Attorney designating a decision maker to avoid the court process of appointing a guardian.
GUARDIANSHIP
Guardianship is a court process of appointing a surrogate or agent to act on your behalf during incapacity. In Kentucky courts, the process consists of a trial which requires a trier of fact (jury or judge) to hear expert testimony and proof of incapacity and, if persuaded by evidence, to make findings of incapacity. The court then appoints a family member or independent guardian who, in the court’s view, is suited to serve your best interests. To avoid a surrogate by default through guardianship, it becomes quite important to address the issue of surrogacy by planning well before the onset of any legal disability or substantially impaired capacity to manage personal affairs or financial resources.
It is relatively easy to plan for incapacity care and designate a surrogate by means of two types of documents: for the management of a person’s property and money, financial Powers of Attorney and Living Trusts; and for the management of an incapacitated person’s medical care, Healthcare Powers of Attorney and Living Wills.
HEALTH CARE POWERS AND LIVING WILLS
Health care powers and living wills are vital planning documents that enable you to maintain a certain level of control over your health care during a time when you are not able to make decisions for yourself. They not only define your wishes for the provision or withholding of medical consent in the last stages of life, but also designate an agent or healthcare surrogate to make decisions during your incapacity according to those wishes.
MEDICAID PLANNING
Medicaid planning is a specific form of Asset Protection in a long-term care scenario. Many elder clients’ adult children are surprised when they learn long-term care facility costs fall to the LTC resident’s private resources. Medicaid LTC coverage for seniors begins as soon as you can demonstrate eligibility, medical and financial, although eligibility hinges on approval after an application process in the state Medicaid office; and it usually involves spend-down of countable assets. It may also involve a Miller Trust, often referred to as a Qualifying Income Trust (“QIT”). Medicaid regulations provide various tools in order to preserve some of your assets. But neither the Medicaid-office nor the LTC-facility staff are obligated to alert you to these asset-saving strategies. Unsuspecting at-home spouses too frequently spend down more assets than the Medicaid rules require. We provide advice, protect your legal rights, and develop strategies, tailored to each applicant within the Medicaid rules, to assist clients and their families with the application process and help clients and families avoid spend-down of exempt or non-countable assets.
MEDICAID APPLICATION AND SUBMISSION
Medicaid regulations are complex and confusing. Dealing with the Medicaid office to apply for Medicaid eligibility can be time consuming and difficult. Gathering the necessary financial records can require multiple meetings, phone calls, and emails. We can advise you how to apply the Medicaid rules to your situation to protect those resources that are exempt or beyond the legal reach of Medicaid spend down requirements. We compile a comprehensive package for the Medicaid application, and as the authorized representative, submit the required documents and verification. We handle a Resource Assessment for married couples, as a separate pre-application request, as needed. We advocate for you with the caseworker and the Medicaid supervisors who make decisions about your finances. We navigate the Medicaid rules and deal with the Medicaid office on your behalf.