Estate Planning for a Second Marriage

It takes a certain kind of courage to embark on a second marriage, even when there are no children from prior marriages. Regardless of how many times you walk down the aisle, the recent article “Establishing assets, goals when planning for a second marriage” from the Times Herald-Record advises couples to take care of the business side of their lives before saying “I do” in a second marriage. Changing the dynamic of your family calls for changes to your estate plan.

Full disclosure of each other’s assets, overall estate planning goals and plans for protecting assets from the cost of long-term care should happen before a second marriage. The discussion may not be easy, but it’s necessary: are they leaving assets to each other, or to children from a prior marriage? What if one wants to leave a substantial portion of their wealth to a charitable organization?

The first step recommended with remarriage is a prenuptial or prenup, a contract that the couple signs before getting married, to clarify what happens if they should divorce and what happens on death. The prenup typically lists all of each spouses’ assets and often a “Waiver of the Right of Election,” meaning they willingly give up any inheritance rights.

If the couple does not wish to have a prenup, they can use a Postnuptial Agreement (postnup). This document has the same intent and provisions as a prenup but is signed after they are legally wed. Over time, spouses may decide to leave assets to each other through trusts, owning assets together or naming each other as beneficiaries on various assets, including life insurance or investment accounts.

Without a pre-or postnup, assets will go to the surviving spouse upon death, with little or possibly nothing going to the children.

The couple should also talk about long-term care costs, which can decimate a family’s finances. Plan A is to have long-term care insurance. If either of the spouses has not secured this insurance and cannot get a policy, an alternate is to have their estate planning attorney create a Medicaid Asset Protection Trust (MAPT). Once assets have been inside the trust for five years for nursing home costs and two-and-a-half years for home care paid by Medicaid, they are protected from long-term care costs.

When applying for Medicaid, the assets of both spouses are at risk, regardless of pre- or postnup documents.

Discuss the use of trusts with your estate planning attorney. A will conveys property, but assets must go through probate, which can be costly, time-consuming and leave your assets open to court battles between heirs. Trusts avoid probate, maintain privacy and deflect family squabbles.

Creating a trust and placing the joint home and any assets, including cash and investments, inside the trust is a common estate planning strategy. When the first spouse dies, a co-trustee who serves with the surviving spouse can prevent the surviving spouse from changing the trust and by doing so, protect the children’s inheritance. Let’s say one of the couple suffers from dementia, remarries or is influenced by others—a new will could leave the children of the deceased spouse with nothing.

Many things can very easily go wrong in second marriages. Prior planning with an experienced estate planning attorney can protect the couple and their children and provide peace of mind for all concerned.

Reference: Times Herald-Record (Sep. 21, 2020) “Establishing assets, goals when planning for a second marriage”

Can I Afford In-Home Elderly Care?

Staying in-home long-term isn’t always affordable, according to a recent US News and World Report article. The article, entitled “Can You Afford In-Home Elderly Care?”, says about 80% of seniors are concerned about being able to afford in-home health care costs, based on a 2019 SCAN Health Plan survey. Paying for personalized in-home elderly care can add up quickly and isn’t always easy on a senior’s tight income.

If you’re thinking about in-home elderly care, review these criteria to determine what costs to expect and the different payment options available for this type of care.

Find Out the Services Included in In-Home Care for the Elderly. In-home care can vary a lot, depending on your health conditions and needs. You might get helpers if you’re recovering at home from an illness or injury, and you could also have home care workers help you with daily activities, such as preparing meals and personal hygiene. Home care services often include rides to and from appointments, monitoring heart rate and blood pressure and in-home physical and cognitive therapy sessions.

Think about the Level of Care Needed. If you can do most daily activities on your own, but could use help with certain activities, such as cooking or cleaning, home care might be a wise option. In-home care is focused on the service, and it’s supposed to help those who are living on their own as long as possible. When more care is required, moving to a place with more health support may be necessary. Elderly persons who have significant needs may often look to assisted living as an alternative. Assisted living facilities offer more services, like 24-hour emergency care and ongoing supervision for seniors with Alzheimer’s, dementia, or other disabilities.

Check Out the Cost of In-Home Senior Care. Homemaker services cost about $22.50 per hour on average and include tasks to help a person with daily duties like laundry, grocery shopping and light housework. An in-home health aide charges an average of $23 per hour, and may help with administering medicine at scheduled times, supervising and monitoring chronic illnesses and helping with walking aids. Of course, the exact cost of these services depends on where you live and the amount of help you need. The monthly cost for in-home care ranges from $4,290 for homemaker services to $4,385 for home health aide care. This typically costs more than the monthly median cost for an assisted living facility—but less than the median cost per month for a room at a nursing home facility.

Know Your Insurance Coverage. If you’re on Medicare, you may be able to get coverage for some short-term home services. To do so, a doctor will need to indicate that skilled nursing care is needed for a short period of time. Medicare will cover speech therapy, occupational therapy, or physical therapy. You can also use it to help with the purchase of durable medical equipment and safety additions to your home. However, Medicare won’t typically cover long-term in-home care services.

Medicaid will cover some health services at home, like cleaning and meal preparation, rides to and from medical visits and personal care. The Programs of All-Inclusive Care for the Elderly (PACE) is available in some states, if you have Medicare or Medicaid. It provides some care and services in the home to elderly persons who need a nursing home level of care. If you have long-term care insurance, some in-home services may be covered by your policy.

Look at Other Payment Methods. If your insurance won’t cover in-home care, you might have to pay out-of-pocket. One way to lower costs, is by asking family members to help. If you need to hire more help over time, the cost for services will increase accordingly. If that doesn’t work, they may help pay for in-home elderly care. You can also look at a reverse mortgage, which lets you borrow against your home’s value.

Reference: US News and World Report (June 10, 2020) “Can You Afford In-Home Elderly Care?”

When Do We Need an Elder Law Attorney?

Kiplinger’s article “When Elder Care Requires Legal Advice” explains that this is when a lot of panicked calls are made to elder law attorneys. These elder law attorneys specialize in planning for the legal complications that can arise in old age. However, seldom do people think to consult one preemptively to avoid making that panicked phone call in the first place.

Elder law attorneys work in the best interests of the older person, although how that is accomplished may differ. If the senior is competent and contacts the attorney, it can be fairly straightforward. However, if an adult family member or friend is an agent or has power of attorney for an elderly person—and asks for help, the attorney is representing the agent. In any event, anyone who has power of attorney has a fiduciary responsibility to do what is best for the elderly person granting them that authority.

If a power of attorney isn’t in place and the elderly parent is incapable of giving it, the family is required to go to court to have someone appointed as a guardian, which can be a time-consuming option. If a parent is cognitively capable and doesn’t want help, there’s nothing an attorney can do about it.

Although state laws vary, elder law primarily concerns these topics:

  • The client’s wishes and health
  • Family dynamics; and
  • The client’s financial assets and income.

An elder law attorney will also make sure that all important documents are in place and up-to-date, according to state laws. This includes a will, a trust, a power of attorney and an advance directive that includes a health care proxy.

Elder law attorneys also help moderate tough decisions, like when family members can’t agree about how a loved one wanted to be buried.

In addition, elder care lawyers understand the complex laws for Medicaid and VA benefits. An elder care lawyer can speak to many other issues, ranging from long-term care insurance to capital gains taxes.

A key when meeting with an elder law attorney is that you feel comfortable, that you’re not rushed and that your questions are answered.

Reference: Kiplinger (Sep. 15, 2020) “When Elder Care Requires Legal Advice”

Nursing Homes Impacted by COVID-19 Crisis
COVID-19 has drastically altered life for residents of nursing homes.

Nursing Homes Impacted by COVID-19 Crisis

Yahoo Finance’s recent article entitled “U.S. nursing homes face ‘a crisis on top of a crisis’ with coronavirus and funding woes” explains that the nursing home industry has been facing a financial shortfall since at least 2013, particularly for non-Medicare margins, according to the American Health Care Association (AHCA). Non-Medicare margins are the revenues and costs associated with Medicaid and private payers for all lines of business. They dropped 3% in 2018, an increase from the year prior. The industry has been in financial disarray long before the COVID-19 crisis.

Lack of funding is a big issue for nursing homes. “You layer COVID on top of that and… it’s a crisis on top of a crisis,” David Grabowski, a professor of health care policy at Harvard Medical School, told Yahoo Finance. “And that you started with a lot of nursing homes that didn’t have adequate staffing models, weren’t exactly strong at infection control, lacked resources in many, many regards, and then this hits, it’s definitely the industry.”

“Over 60% of people in the country that live in nursing facilities are dependent upon Medicaid,” AHCA President and CEO Mark Parkinson told Yahoo Finance. “And unfortunately, in most states, the Medicaid rates have been set at less than the actual cost to take care of the residents. So, it makes it very difficult to provide the kind of care that providers want when they’re underfunded so dramatically.”

In addition, Parkinson commented, “most of the people don’t understand that Medicaid is really a middle-class benefit, because if people live long enough to outlive their resources, it’s the only way that they can afford to be taken care of in a facility.”

Medicaid is a federal benefits program that gives health coverage to seniors, pregnant women, children, people with disabilities and eligible low-income adults. However, the federal government permits states to level the payment amounts long as they meet federal requirements.

“The failure to adequately fund Medicaid is primarily a problem with the states,” Parkinson said. “Each state gets to make its own decision on what its reimbursement will be for Medicaid. Although the national average is around $200 a day, the rate varies dramatically by states, and some states are as low as less than $150 a day. In the low funding states, like Illinois and Texas, the politicians just haven’t decided it’s an important enough priority to adequately fund it.”

According to the New York Times, the COVID-19 crisis that has swept the nation has infected more than 282,000 people at about 12,000 facilities as of June 26. It has killed more than 54,000. There are roughly 15,600 nursing homes in the U.S., with more than 1.3 million residents and over 1.6 million staff.

“It’s important to note that COVID hasn’t discriminated, so it’s not just those worst-quality nursing homes that have seen cases,” Grabowski said. “It’s been equally apparent across the high quality and low-quality facilities, high Medicaid and low Medicaid facilities. We’ve found that it’s really about where you’re located that has driven these cases.”

Adding to the financial situation is the fact that testing for coronavirus in the thousands of nursing homes across the country can be very expensive. The AHCA and National Center for Assisted Living (NCAL) found that testing every U.S. nursing home resident and staff member just once, would cost $440 million. As the pandemic continues, more supplies are also needed. A recent NCAL survey found that many assisted living communities are running low on PPE (N95 masks, surgical face masks, face shields, gowns, and gloves).

Parkinson says, it’s a “failure to recognize the importance of the elderly. It’s a conscious political decision to underfund elder care,” he said. “It’s not defensible on any level, but it’s occurring in the vast majority of states.”

Nursing homes were hardly prepared for the COVID-19 crisis. He went on to say that with more funding, nursing homes can be better prepared for the next health crisis.

Reference: Yahoo Finance (June 30, 2020) “U.S. nursing homes face ‘a crisis on top of a crisis’ with coronavirus and funding woes”

Special Needs Planning for Parents
Individuals with special needs require special consideration in estate planning.

Special Needs Planning for Parents

Public benefits for individuals with special needs include health care, supplemental income, and resources, like day programs and other vital services. Some benefits are based on the individual’s disability status, but others are “needs tested,” where eligibility is determined based on financial resources, as explained in the article “Planning for loved ones with special needs” from NWTimes.com. This distinction is an important consideration in estate planning.

Needs testing” is something that parents must address as part of special needs planning, in concert with their own estate planning. This ensures that the individual’s government benefits will continue, while their family has the comfort of knowing that after the parents die, their child may have access to resources to cover additional costs and maintain a quality of life they may not otherwise have.

Families must be very careful to make informed planning decisions, otherwise their loved ones may lose the benefits they rely upon.

A variety of special planning tools may be used, and the importance of skilled help from an elder law estate planning attorney cannot be overstated.

One family received a “re-determination” letter from the Social Security Administration. This is the process whereby the SSA scrutinizes a person’s eligibility for benefits, based on their possible access to other non-governmental resources. Once the process begins, the potential exists for a disabled person to lose benefits or be required to pay back benefits if they were deemed to have wrongfully received them.

In this case, a woman who lived in California, engaged in a periodic phone call with California Medicaid. California is known for aggressively pursuing on-going benefits eligibility. The woman mentioned a trust that had been created as a result of estate planning done by her late father. The brief mention was enough to spark an in-depth review of planning. The SSA requested no less than 15 different items, including estate documents, account history and a review of all disbursements for the last two years.

The process has created a tremendous amount of stress for the woman and for her family. The re-determination will also create expenses, as the attorney who drafted the original trust in Indiana, where the father lived, will need to work with a special needs attorney in California, who is knowledgeable about the process in the state.

Similar to estate planning, the special needs process required by Medicaid and the SSA is a constantly evolving process, and not a “one-and-done” transaction. Special needs and estate planning documents created as recently as three or four years ago should be reviewed.

Our specialized team has the tools to tackle your estate planning needs, from Medicaid support to planning for people with special needs.

Reference: NWTimes.com (June 21, 2020) “Planning for loved ones with special needs”

Why Customize Your Estate Plan?
Customize your estate plan to reflect the needs and wants of your family.

Why Customize Your Estate Plan?

A well-written estate plan is customized and unique. The only thing worse than having no estate plan, is an estate plan created from a ‘fill-in-the-blank’ form, according to the recent article “Don’t settle for a generic estate plan” from The News-Enterprise. Compare estate planning to buying a home. Before you start packing, you think about the kind of house you want and how much you can spend. You also talk with real estate agents and mortgage brokers to get ready. The planning process is detailed, and more importantly, catered to your needs and wants.

Even when you find a house you love, you don’t write a check right away. You hire an engineer to inspect the property. You might even bring in contractors for repair estimates. At some point, you contact an insurance agent to learn how much it will cost to protect the house. You rely on professionals, because buying a home is an expensive proposition and you want to be sure it will suit your needs and be a sound investment.

The same process goes for your estate plan. Consulting a skilled professional, an estate planning attorney, will prove to be worthwhile in the long run. You may even consider weighing input from trusted family or friends. It is important to work with a professional attorney who will offer expert advice in customizing your estate plan.

An estate planning attorney will also help you to avoid problems you may not anticipate. If the family includes an individual with special needs, leaving money to that person could result in their losing government benefits. Giving property to an adult child to try to avoid nursing home costs could backfire, making you ineligible for Medicaid coverage and cause your offspring to have an unexpected tax bill. These are the very considerations that our team makes in preparing your personalized estate plan.

To the surprise of many, once your estate plan is completed, it’s not done yet. It is important to communicate your estate plan with the necessary parties. Make sure that the people who need to have original documents—like a power of attorney—have these documents, or tell them where they can be found when needed. Keep in mind that many financial institutions will only accept their own power of attorney forms, so you may need to include those in your estate plan. Medical documents, like advance directives and healthcare powers of attorney, should be given to the people you selected to make decisions on your behalf. Make a list of the documents in your customized estate plan and where they can be found.

Preparing an estate plan is not just signing a series of fill-in-the-blank forms. A well-done estate plan is customized and unique. An estate plan, after all, is a means of protecting and passing down the legacy that you have devoted a lifetime to creating, no matter its size.

Reference: The News-Enterprise (June 23, 2020) “Don’t settle for a generic estate plan”

When Planning for Retirement, Don’t Forget About Long Term Care Insurance

Roughly 60% of those turning 65 can anticipate using some form of long-term care in their lives, according to the U.S. Health and Human Services Department. Those individuals may be faced with a nursing home, assisted living, or in-home care.  The costs associated with these types of care make elder law planning extremely important.  This is one reason individuals should consider the possibility of long-term care insurance.

CNBC’s recent article, “Not having long-term care insurance can be ‘the single biggest devastator’ of your financial plan,” reports that over 8 million Americans have long-term care insurance. However, the cost of that insurance is rising. The increase is due to several factors, including the fact that companies under priced their policies for years and misjudged how many would drop coverage.  Because of those rising premiums, some individuals may choose self-insurance.  That means saving a pool of money to earmark for long-term care. Coverage is also available through Medicaid, which has eligibility requirements.  Despite these increases, when planning, one should consider purchasing  some form of coverage. This is because not being insured can be the biggest devastator of a financial plan.

long-term care checklist

The rule of thumb has been to buy LTC coverage at age 55. However, it really depends on your situation. The big unknown is health, and the odds of being able to qualify for coverage at age 60, compared to age 30 or 40, is vastly different.

A traditional LTC policy will cover the costs of care for a certain period of time, generally up to six years. The amount of coverage is based on the average cost of care for your location. Most insurers offer it in the form of a monthly benefit, and possibly with some inflation protection.  There’s also a hybrid policy that covers long-term care costs, but becomes life insurance paid to heirs, if it’s not used. Of the 350,000 Americans who purchased long-term care protection in 2018, 85% chose the hybrid coverage. It’s also called combo or linked-benefit. The big difference between a traditional LTC policy and the hybrid policy is you’ll pay more for the hybrid policy.

The attorneys at Michael T. Huguelet, P.C. would be happy to discuss your options for long term care planning and the benefits of long term care insurance so you have piece of mind that your assets are preserved and left to those who mean the most to you.  If you are looking for long-term care planning in Orland Park, Illinois or the surrounding suburbs of Chicago, please give us a call.

Reference: CNBC (October 14, 2019) “Not having long-term care insurance can be ‘the single biggest devastator’ of your financial plan”

 

Long-Term Care Planning is Important

The expense of long-term care is often astronomical. Many people who end up requiring long-term care initially pay for it out of their own their own assets.  Medicaid is the federal program that assists with healthcare benefits for those who qualify and cannot afford them.  Many people end up accessing Medicaid benefits, after their own assets have been depleted.  The Medicaid program can help with paying for home care, assisted living, and nursing home care, explains Insurance News Net’s recent article, “Medicaid planning.”

long-term care planning

Speaking with an elder law or Medicaid planning attorney is a great idea to make sure people can qualify for Medicaid before they completely exhaust their resources.  These practitioners specialize in helping people qualify for Medicaid benefits far in advance of their assets becoming depleted.

For those who are thinking of transferring all of their assets to their children to qualify for Medicaid, the government has already thought of that. If you gift any assets to your children, you may be subject to a penalty before becoming Medicaid eligible. However, there are perfectly legal strategies that a senior can use to become eligible for Medicaid, while still keeping considerable assets.  Assets may be freely transferred between spouses to help gain eligibility for a spouse that needs care.  There are also many assets that are exempt for purposes of gaining eligibility.

With the guidance and planning from qualified legal counsel, seniors who require long-term care can get assistance with their healthcare from the government, while preserving assets for their loved ones.

The attorneys at Michael T. Huguelet, P.C. would be happy to sit down with you and assist with long term care planning so you have piece of mind that your assets are preserved and left to those who mean the most to you.  If you are looking for long term care planning in Orland Park, Illinois or the surrounding suburbs of Chicago, please give us a call.

Reference: Insurance News Net (September 29, 2019) “Medicaid planning”

 

Long-Term Care Costs and Your Estate Plan

Illinois medicaid planningThere are many misunderstandings about long-term or nursing home care and how to plan from a financial and legal standpoint. The article “Five myths about nursing home costs and estate planning” from The Sentinel seeks to clarify the facts and dispel the myths. Some of the truths may be a little hard to hear, but they are important to know.

Myth One: Before any benefits can be received for nursing home care, a married couple must have spent at least half of their assets and everything but $120,000. If the person receiving nursing home care is single, they must spend almost all assets on the cost of care, before they qualify for aid.

Fact: Nursing homes have no legal duty to advise anyone before or after they are admitted about this myth.

Several opportunities to spend money on items other than a nursing home, include home improvements, debt retirement, a new car and funeral prepayment. An elder law attorney will know how to use a Medicaid-compliant annuity to preserve assets, without spending them on the cost of care, depending on state law.

There are people who say that an attorney should not help a client take advantage of legally permitted methods to save their money. If they don’t like the laws, let them lobby to change them. Experienced elder law and estate planning attorneys help middle-class clients preserve their life savings, much like millionaires use CPAs to minimize annual federal income taxes.

Myth Two: The nursing home will take our family’s home, if we cannot pay for the cost of care.

Fact: Nursing homes do not want and will not take your home. They just want to be paid. If you can’t afford to pay, the state will use Medicaid money to pay, as long as the family meets the eligibility requirements. The state may eventually attach a collection lien against the estate of the last surviving homeowner to recover funds that the state has used for care.

A good elder law attorney will know how to help the family meet those requirements, so that the adult children are not sued by the nursing home for filial responsibility collection rights, if applicable under state law. The attorney will also know what exceptions and legal loopholes can be used to preserve the family home and avoid estate recovery liens.

Myth Three: We’ve promised our parents that they’ll never go to a nursing home.

Fact: There is a good chance that an aging parent, because of dementia or the various frailties of aging, will need to go to a nursing home at some point, because the care that is provided is better than what the family can do at home.

What our loved ones really want is to know that they won’t be cast off and abandoned, and that they will get the best care possible. When home care is provided by a spouse over an extended period of time, often both spouses end up needing care.

Myth Four: I love my children equally, so I am going to make all of them my legal agent.

Fact: It’s far better for one child to be appointed as the legal agent, so that disagreements between siblings don’t impact decisions. If health care decisions are delayed because of differing opinions, the doctor will often make the decision for the patient. If children don’t get along in the best of circumstances, don’t expect that to change with an aging parent is facing medical, financial and legal issues in a nursing home.

Myth Five: We did our last will and testament years ago, and nothing’s changed, so we don’t need to update anything.

Fact: The most common will leaves everything to a spouse, and thereafter everything goes to the children. That’s fine, until someone has dementia or is in a nursing home. If one spouse is in the nursing home and receiving government benefits, eligibility for the benefits will be lost, if the other spouse dies and leaves assets to the spouse who is receiving care in the nursing home.

A fundamental asset preservation strategy is to make changes to the will. It is not necessary to cut the spouse out of the will, but a well-prepared will can provide for the spouse, preserve assets and comply with state laws about minimal spousal election.

When there has been a diagnosis of early stage dementia, it is critical that an estate planning attorney’s help be obtained as soon as possible, while the person still has legal capacity to make changes to important documents.

The important lesson for all the myths and facts above: see an experienced Orland Park estate planning elder law attorney to make sure you are prepared for the best care and to preserve assets. The Attorneys at Michael T. Huguelet, P.C. are anxious to assist you and your family through this difficult and confusing process. If you need assistance with estate planning of any sort, contact our Lemont estate planning attorneys at 708-852-0733 for help.

Reference: The Sentinel(May 10, 2019) “Five myths about nursing home costs and estate planning”