Articles Posted in Elder Law

One of the primary purposes of estate planning is to appoint someone to handle your estate after you pass away as well as describe how you would like your remaining assets distributed. Many people decide that the best way to pass on assets is to family members, which often include children and/or grandchildren. While there are many estate planning strategies, you should likely at some point consider whether passing on a lifetime gift makes sense.

The Current Exemption Amounts for Lifetime Gifts

In 2021, each person in the United States can transfer up to $11.7 million either during that person’s life or time of death without being subject to any federal estate or gift taxes. If your transfers exceed this amount, only the excess amount is taxed at 40%. New York currently does not have a gift tax. While this provides an even greater reason to utilize lifetime gift taxes, it’s worth remembering that several of the states surrounding New York have gift taxes. Due to these currently advantageous taxes, many individuals utilize this opportunity to keep wealth within their families. Making gifts to your family while you are still alive offers the advantage of seeing your loved ones enjoy these assets.

The Covid-19 pandemic has caused some people to leave the country. There also many other reasons why people choose to take residence in a foreign place including job opportunities or to live closer to loved ones. If you’re planning on moving out of the country, it’s critical to understand some potential estate planning implications. 

Select Someone to Oversee Your US Assets

If you still own any type of assets within the United States, you should consider utilizing a power of attorney to name an “attorney-in-fact”, which is a person who makes financial decisions on your behalf while you reside outside of the country. This person should be close to the assets in a question so they can help oversee them. This person might be granted various powers including the ability to pay bills and to apply for loans. 

Data shows that more than 11 million Americans currently need some type of long-term care due to chronic illnesses and conditions. Statistics also show that over a million Americans reside in long-term care facilities. Over half of these residents are between the ages of 75 to 94. Many times, long-term care refers to care at locations like a home but also assisted living or hospitals. It’s a good idea to sufficiently plan for how you will receive long-term care as well as how to preserve assets you’d like to keep. 

# 1 – You Have Options to Pay for Nursing Home Costs

The costs for long-term care options like nursing homes are often substantial. Potential applicants are often overwhelmed at how large these costs are. As a result, it’s often the best idea to begin planning for how to pay nursing home costs as soon as possible. Some of the options that people rely on to pay for long-term costs include:

Nursing home Medicaid requires recipients to either be over the age of 65 or blind or disabled. Unfortunately, an increasing number of families are searching for long-term care while the recipient is still below the age of 65. Many of these individuals are just a few years short of 65 but have already experienced serious medical conditions like Alzheimer’s disease, strokes, or traumatic brain injuries. Unfortunately, the circumstances that lead a person to require long-term care are not always predictable. If you’re under 65 and interested in utilizing Medicaid, there are some important issues that you should consider.

Nursing Home Is a Valid Option for Someone Under 65

If a Medicaid applicant is below the age of 65, they have the option of establishing that they are disabled to qualify. Verification of disability involves “prima facie” evidence and might include disability determination by the Social Security Administration, disability determination by the Railroad Retirement Board, or proof of receipt of Medicaid benefits. 

A challenge to the Affordable Care Act is still pending at the United Supreme Court, but other challenges against the law have also been introduced including one case in which a Texas federal judge suggested that most Americans receive preventive services like mammograms without charge. In this ruling, the judge also noted that businesses, as well as individuals who challenge the Affordable Care Act’s “first-dollar” coverage requirement for preventive services, have legal standing to do so. 

This judge has also previously found the entire Affordable Care Act unconstitutional. The plaintiffs who initiated the case argue that religious and free-market objections exist regarding the Affordable Care Act’s requirement and seek to halt enforcement of the law. 

Based on a recent order, it appears likely that the judge will rule in favor of the plaintiffs and end up interfering with the Affordable Care Act’s application. 

The Centers for Disease Control and Prevention reports that there are 15,600 nursing homes in the United States and 1.3 million individuals who reside in nursing homes. While nursing homes inarguably a critical role in the lives of many people, they also introduce countless complications into a person’s lives. As people plan on passing on assets to their loved ones, they are often left with various questions about how assets can be passed on to loved ones. 

To make sure you are fully informed about asset ownership as a nursing home resident, this article reviews some critical details that you should understand. Even worse than knowing the answer to an estate planning question is receiving incorrect details. As a result, this article also focuses on dispelling some myths about estate planning.

Myth # 1 – Joint Owning Assets with Your Children Exempt Assets for Nursing Home Issues

If you’ve been considering making a gift to take advantage of the current lifetime federal estate tax emotions, you’ve likely considered the role that a spousal lifetime access trust could play in your trust. 

A spousal lifetime access trust (SLAT) is an irrevocable trust that is created for the benefit of your spouse. These trusts can also indirectly benefit a couple’s children as well as any other beneficiaries. After a SLAT is created, you can make the most of the lifetime tax exemption. This article reviews some important factors to consider in deciding whether a SLAT is the right idea for you.

# 1 – SLATs Let You Take Advantage of The Estate Tax Exemption

The case of In re Estate of Theodore George recently concluded, which involved a daughter who appealed a civil court’s determination that her deceased father was the sole owner of a vehicle at the time of his death and that the vehicle was part of the father’s estate at the time of his death.The deceased man purchased the vehicle in 1992. Later in 1994, the Vermont Department of Motor Vehicles issued a Certificate of Title to the decedent in his name only. The copy of the title contained no assignment of ownership to the daughter. In 2006, the deceased man submitted a Vermont Registration, Tax, and Title Application to the Department of Motor Vehicles.

The deceased man’s name was listed in the space provided on the form for the owner, while the daughter’s name was listed in the space for co-owners. A handwritten annotation next to the daughter’s name says “add co-owner”. The form also advised applicants to select rights of survivorship if more than one owner is listed, but the deceased man made no indication of the daughter’s role as a survivor. At the form’s bottom, the line for the co-owner’s signature was blank while the deceased man signed the form. No bill of sale accompanied the application. The DMV issued certificates naming both the daughter and the deceased man for 2012 to 2013, 2014 to 2015, and 2017 to 2018. 

The daughter appealed the case and argued that the deceased man’s act in changing the registration to reflect joint ownership transferred interest in the vehicle to her. In the alternate, the daughter argued that her late father’s act demonstrated his intent to make a gift of joint ownership. The Vermont Supreme Court later concluded that there was insufficient evidence that the deceased man transferred an interest in the vehicle to the daughter under either theory.

Guardianship is a court process. Guardians are only appointed if an individual is deemed to be incapacitated. The determination of incapacity is made using either a physician or a psychologist. If incapacity is only temporary, a temporary or emergency guardian is appointed. To navigate the guardianship process, it’s helpful for appointed individuals to be as informed as possible. As a result, this article reviews some critical details to appreciate the nature of these arrangements.

# 1 – How to Decide a Family member Needs a Guardian

Sometimes, disability or injury make it challenging for a person to make decisions related to health care, finances, or living situations. These situations might include a loved one who ends up in a coma, someone who is mentally challenged, someone who has suffered a stroke, or someone with a brain injury. If a court assesses that a person can no  longer make life decisions, the court will hold a hearing addressing that individual’s competency. To decide whether a person is incapacitated, courts will hold a hearing to review all of the available facts.