Archive for the ‘Asset Protection’ category

Do you see the real person, or just what you want to see?

January 19, 2016

This is a preview of this month’s legal corner article which will be published on January 27, 2016.

90-Year Old - Wheelchair

“Uniqueness is what makes you the most beautiful.” 

~ Lea Michele

I was re-reading one of the late Stephen Covey’s books and a story caught my eye.   The story is about what he calls a “paradigm shift”, but that’s too complicated for me.  I just call it “perspective” or “how you look at the world”.

Picture Covey riding peacefully on a subway reading his newspaper.  His peaceful ride was interrupted when a father and his three young children got on the train.  The kids were running up and down, yelling, throwing things.  Covey was annoyed at the kids and, even more, at the father who was allowing them to carry on.

After several minutes, Covey asked the father if he could control his children a little more.  The man lifted his gaze and said softly, “Oh, you’re right.  I guess I should do something about it.  We just came from the hospital where their mother died about an hour ago.  I don’t know what to think, and I guess they don’t know how to handle it either.”

Can you imagine what Covey thought at that moment?  In an instant, his perspective – his view of this man’s world – changed.  This new information made him think differently, feel differently and behave differently.

In my elder law practice, I have noticed over the years that our society has become desensitized about growing old and many people have a flawed view of the elderly.  They see the elderly as “generic” people – like they are all the same.

It is not uncommon for my law office to deal with clients who are well into their 80’s, 90’s and even some over 100 years old.  Let me tell you, no matter the age they don’t consider themselves “elderly”, they consider themselves a person who happens to be a certain age.  And each person is unique and has his or her own stories.

Consider Max, who is 90 years old and who was married to his wife, Sandy, for 64 years.

His eyes brighten as he talks about his first job and ripping open his first paycheck.  He remembers his hands gripping the steering wheel the first time he was allowed to drive the family car alone.

Max recalls his first dog, Abby, and how she followed him everywhere.  And he remembers hugging Abby as she took her last breath, because the vet said putting her to sleep was the only option.

He proudly reminisces about walking to the podium to receive his college degree, the first one in his family to do so.

His graduation ceremony evokes other memories, including a road trip to Florida with his college buddies, Stan and Eddie.  “I’m the only one left”, he whispers.

Max is reverent and humble when he talks about his wife, Sandy, who has been gone for 6 years.  He is almost in a trance as he flashes back to their first date, falling in love, dancing in the kitchen, getting married, raising their daughter.

He is somber when he talks about his service in World War II.  He remembers bombs and bullets and friends who never made it home.  “Too many didn’t come back”, he says.

Max talks about “ice cream dates” that he used to have with his only daughter, and how he told her he wouldn’t cry when he walked her down the aisle.  “But I did”, he says, a wry smile creasing his face.

He talks about his grandchildren and how the whole family went on vacation up north, swimming, fishing, playing.

He recalls with pride the top salesman award he earned at his company for five straight years.

You can sense Max’s heartache when he recounts his health problems that resulted in him moving out of the home he loved after 52 years.

Can you imagine having your car keys taken away?  Or being told you can no longer live on your own?  Or that you must move out of the home that you built with your own hands?

That was Max after his wife died and his health started to deteriorate.

Today, Max is living in an assisted living community with over 70 other men and women.

If you entered the foyer and walked past Max sitting in his wheelchair, you may be tempted to see him as “another old man”.

He is not.

He is unique, just like you and I are unique.

The next time you see a “Max”, I challenge you to see him from a different perspective, a different world view.

He is a person who had parents, a brother, sisters, a daughter, a wife.  He has fallen in love, had a broken heart, seen his daughter and grandchildren grow up, seen his friends and loved ones die, and still, even today, has hopes and dreams.

When you see Max as unique, you will change your perspective, like Stephen Covey on the subway.  In an instant, you will think differently, feel differently and behave differently.  And that perspective is exactly what Max has earned, and what he deserves.

_________________________________________________________________

 Glenn Matecun is a founder of the law firm of Matecun, Thomas & Olson, PLC in Howell.  He is an estate planning and elder law attorney, and is accredited by the Department of Veterans Affairs. His website, www.MichiganEstatePlans.com, is packed with helpful information and action plans for anyone dealing with estate planning, elder law, nursing home, probate or Veterans’ benefits issues.  You can email him at gmatecun@mtolaw.com or call (517) 548-7400 for a free consultation.

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No Change In Amount Of Veterans Aid & Attendance Benefits For 2011

December 30, 2010

The Social Security Administration has announced that no cost-of-living adjustments will be made to Social Security benefits in 2011 because the consumer price index has not risen since 2008 when the last Social Security increase occurred.

Like recipients of Social Security and other federal benefits, Veterans, their families and survivors will also not see a cost-of-living adjustment in 2011 to their compensation and pension benefits from the Department of Veterans Affairs (VA). 

Under federal law, the cost-of-living adjustments to VA’s compensation and pension rates are the same percentage as for Social Security benefits.

One of the benefits left unchanged is the Aid and Attendance (A&A) Pension, which provides benefits for veterans and surviving spouses who require the regular attendance of another person to assist in eating, bathing, dressing and undressing or taking care of the needs of nature.  It also includes individuals who are blind or a patient in a nursing home because of mental or physical incapacity. Assisted care in an assisting living facility also qualifies.

To qualify for A&A it needs to be established by your physician that you require daily assistance by others to dress, undress, bathing, cooking, eating, taking on or off of prosthetics, leave home etc. You DO NOT have to require assistance with all of these.  There simply needs to be adequate medical evidence that you cannot function completely on your own.

The A&A Pension can provide up to $1,644 per month to a veteran, $1,055 per month to a surviving spouse, or $1,949 per month to a couple (tax free, by the way).  If you are aware of a veteran or surviving spouse of a veteran who may be in need of assistance — whether in an assisted living facility or at home — we offer a free review and analysis to determine whether that person qualifies for Aid and Attendance benefits.

Glenn Matecun

VA Accredited Attorney/Veterans Benefits

www.MichiganEstatePlans.com

No Medicaid Disqualification For “Bad Investment”, But A Five-Year Clash . . .

September 20, 2010

It’s not uncommon for parents to invest in a child’s business.  That’s exactly what Raymond Southwick did – he invested money in his son’s business, and in return he received promissory notes requiring repayment. 

The problem:  His son’s business almost immediately “went south”, leaving the promissory notes nearly worthless.  The BIGGER problem:   Mr. Southwick’s wife needed long term care in a nursing home, and the Medicaid office held that Mr. Southwick’s bad investment disqualified his wife from receiving Medicaid benefits for her nursing home care.

After five years of hearings, rehearings and trips to court, a Massachusetts trial court recently ruled that Mr. Southwick’s investment was not a transfer that disqualified his wife from receiving Medicaid.  Southwick v. Waldman (Mass.Super.Ct., No. PLCV2006-01026-B, Sept. 9, 2010).

The Court found that “there is no Medicaid rule that prohibits an applicant, member or spouse from making speculative investments,” and saw no evidence that the loans were a sham.  As a result, the Court concluded that there was no disqualifying transfer of assets and ordered that Mrs. Southwick be deemed eligible for Medicaid.

Again, like my recent post of the Michigan Medicaid case on purchasing LLC interests, this case is not posted to teach you the law, but to show you that this area is complicated and needs attention by an elder law attorney.  The goal is to make life easier, which does not include “five years of hearings, rehearings and trips to Court”.

Glenn R. Matecun

Michigan Elder Law Attorney

http://www.MichiganEstatePlans.com

Medicaid Planning – Penalties Can Be Costly

September 13, 2010

Medicaid and nursing home law is full of pitfalls. There is a “look back period” and a “penalty period”, there are “divestments” and “spend downs”, and there are transfers that may be “for fair market value” or “for less than fair market value”.

The Michigan Court of Appeals recently ruled that the state correctly imposed a penalty period after a Medicaid applicant purchased shares of a family LLC.  Mackey v. Department of Human Services (Mich. Ct. App., No. 288966, Sept. 7, 2010).

In that case, in an attempt to qualify for Medicaid, the applicant (Elizabeth Marden), through her daughter (Betsy Mackey, who was power of attorney for her mother), paid $111,460 for investment units in the Marden Family LLC.

On September 7, 2010, the Michigan Court of Appeals ruled that the transfer was “for less than fair market value”, even though Ms. Marden received the LLC interest in exchange for her investment. The Court held that it was not an arm’s-length transaction made on the open market, explaining that Ms. Marden “invested a sizable sum in the Marden Family L.L.C., which was created solely for the purpose of circumventing Medicaid eligibility requirements and which ceded total control to [Ms. Marden’s] daughter (and fiduciary) for a fraction of the cost of [Ms. Marden’s] investment. Under the terms of the agreement, petitioner would only receive a marginal return on her unsecured investment after two years.  A willing buyer could not acquire such an asset on the open market, in an arm’s-length transaction. Therefore, the transaction was for less than fair market value and constituted a divestment of assets not subject to an exclusion.”

What does an eighteen month penalty cost?  At the average Michigan nursing home cost of about $6,600.00 per month, the cost of this penalty is $118,800.00.

I am not posting this to make you aware of problems purchasing LLC interests or similar assets.  I am posting this to let you know that asset protection planning, especially Medicaid and nursing home planning, is a complicated area, and that every transfer you make could result in a costly penalty.  So, make sure to sit down with an elder law attorney before transferring your assets.

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Glenn Matecun | Michigan Elder Law Attorney

http://www.MichiganEstatePlans.com