Archive for the ‘Nursing Home Planning’ 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.

What is a Lady Bird Deed?

March 31, 2012

Check this out if you want to learn more about how a Michigan Lady Bird Deed works and how it can help with your Will, Trust or other estate planning.

IRS Issues Long-Term Care Premium Deductibility Limits for 2012

October 23, 2011

The Internal Revenue Service (IRS) is increasing the amount taxpayers can deduct from their 2012 taxes as a result of buying long-term care insurance.  Premiums for “qualified” long-term care insurance policies (see explanation below) are tax deductible to the extent that they, along with other unreimbursed medical expenses (including Medicare premiums), exceed 7.5 percent of the insured’s adjusted gross income.

These premiums – what the policyholder pays the insurance company to keep the policy in force – are deductible for the taxpayer, his or her spouse and other dependents.  Note that if you are self-employed, the tax-deductibility rules are a little different: You can take the amount of the premium as a deduction as long as you made a net profit; your medical expenses do not have to exceed 7.5 percent of your income.  However, there is a limit on how large a premium can be deducted, depending on the age of the taxpayer at the end of the year. Following are the deductibility limits for 2012.  Any premium amounts for the year above these limits are not considered to be a medical expense.

Attained age before the close of the taxable year

 

Maximum deduction for year

 

40 or less $350.00
More than 40 but not more than 50 $660.00
More than 50 but not more than 60 $1,310.00
More than 60 but not more than 70 $3,500.00
More than 70 $4,370.00

What Is a “Qualified” Policy?

To be “qualified,” policies issued on or after January 1, 1997, must adhere to certain requirements, among them that the policy must offer the consumer the options of “inflation” and “non-forfeiture” protection, although the consumer can choose not to purchase these features.  Policies purchased before January 1, 1997, will be grandfathered and treated as “qualified” as long as they have been approved by the insurance commissioner of the state in which they are sold.  For more on the “qualified” definition, click here. The Georgetown University Long-Term Care Financing Project has a two-page fact sheet, “Tax Code Treatment of Long-Term Care and Long-Term Care Insurance.”   You can download it here in PDF format:  http://ltc.georgetown.edu/pdfs/taxcode.pdf

Glenn Matecun is a Michigan attorney focusing on Estate Planning and Elder Law.  He helps families avoid the devasting financial effects of nursing homes and other long-term care communities.  For more information, visit www.MichiganEstatePlans.com or www.MTOlaw.com

 

Mom and Dad, Can We Talk? Answers to Top Questions About Discussing Long-Term Care Planning

December 21, 2010

Recently, the founder of Elder Law Answers, Harry Margolis, answered some questions relating to talking with aging parents or other family members about sensitive issues such as wills, funeral arrangements, assisted living and medical treatment wishes. The questions and answers are good ones, so I am passing them along:

At what point is it appropriate for grown children, spouses, caregivers or friends to attempt to discuss these issues with aging parents, relatives or friends?  

The earlier the better, but every family is different, and raising these issues can be more or less uncomfortable depending on the family dynamics. Certainly, if there is an illness or medical emergency, that can serve as justification for beginning the discussion.

What’s the best way to broach the subject?

Rather than focusing on the parent or other family member’s current or possible future physical and mental decline, it often works better for the person starting the conversation to focus on his or her own concerns. She can say that she was meeting with her own estate planning attorney, which made her think about her parents’ situation. Or she can talk about how she is nervous about being able to care for her parents when and if the need comes up. Often parents won’t take measures to protect themselves, but they never stop being parents and will respond to a call for help from a child.

Where’s the best place to have such a discussion?

In the parent’s home.

Should you seek legal counsel first before initiating a talk?

Not necessarily. A legal consultation would help the children or other family members know what issues to discuss and some of the available options. But the ultimate goal should be for the elder to consult himself or herself with an attorney with elder law experience.

 Should it be one-on-one or should family members, friends or those with specific expertise in an area be part of the discussion?

That has to be determined on a case-by-case basis. We always encourage transparency so that all family members are in the loop. However, scheduling can be difficult and too many people involved can be overwhelming. In addition, depending on the circumstances, elder care and planning issues can take several meetings to resolve. Different people may be involved in different meetings depending on the issues being discussed at each.

What if your parent, spouse, etc., refuses to talk about these issues? How do you overcome this?

Follow the advice above. If it’s a parent, the child may have to be patient and wait until an opportunity arises to bring the subject up again. Ultimately, it may be impossible to get the parent to participate in any planning. If it’s a spouse, this is also true. However, a spouse may be able to take some planning steps on his or her own.

What steps can you legally take if an elderly person such as a parent or spouse refuses to take care of issues dealing with a will, housing, medical treatment or related areas?

It depends on the parent or spouse’s mental capacity. If they are incompetent, it is possible to go to court to be appointed conservator or guardian and to take over decision making in these areas. Unfortunately, this can be an expensive, time-consuming and cumbersome process. [Glenn speaking here: This is a good way to help a parent or other loved one understand why he or she needs an estate plan, including a durable power of attorney and health care power of attorney.  Without a good plan, if your parent becomes incapacitated, it will be necessary to go through court to obtain a guardian and/or conservator.]

 What can seniors do in advance, to avoid becoming embroiled with grown children, relatives, or friends over these issues.

Plan ahead. All seniors should sit down with an elder law attorney to discuss their goals, concerns and hopes and to develop a plan to reach the goals, address the concerns and give their hopes the opportunity to become realities.

 Glenn Matecun

Michigan Estate Planning & Elder Law Attorney

www.MichiganEstatePlans.com

A Cure For The Vanishing Mind? Still no magic bullet.

October 7, 2010

Alzheimer’s disease is sometimes referred to as the “vanishing mind”.  Common early symptoms include forgetfulness, problems communicating, and changes in mood and behavior.  These early symptoms are followed by a greater decline in the person’s cognitive and functional abilities, where assistance with many daily tasks will become necessary.  Ultimately, in the final stage, the person becomes unable to communicate verbally or look after themselves. Care is required 24 hours a day.

A New York Times article recently asked the question:  “What, if anything, can people do to prevent it?”  Unfortunately, as the article says, the answer is “depressing and distressing “.

A summary of research on Alzheimer’s disease has concluded that there’s no proof we can do anything to prevent or delay the onset of Alzheimer’s disease.  This is true despite the advice of the Alzheimer’s Association and most medical professionals that exercising, eating healthy food, staying socially engaged, and challenging our minds will provide at least some preventive effect.

The Alzheimer’s Association may be correct.  What the research says is that we don’t have proof one way or the other.  

The problem is the poor quality of the studies that have been conducted to date, which is partly the result of the difficulty in studying this issue.  Any study of the effect of lifestyle on health must be long term.  Measuring factors like social engagement is nearly impossible. And even exercise and diet depend on the subjects reporting reliably themselves. Finally, since Alzheimer’s develops so slowly and affects victims so differently, and can be difficult to measure the results.

Where does that leave us if we hope to avoid this disease?  Most people would say that healthy eating, exercise, social engagement, and challenging activities will improve our quality of life, whether or not they stave off dementia. If they also keep us mentally healthy longer, let’s consider that to be a bonus.  To read The New York Times article on the study, click  here.

Glenn Matecun

www.MichiganEstatePlans.com

Michigan Elder Law & Estate Planning Attorney

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.

Posted by:

Glenn Matecun | Michigan Elder Law Attorney

http://www.MichiganEstatePlans.com