New York Estate Planning & Elder Law Blog

Qualifying for Medicaid to Pay for Long-Term Care

Published on: June 1, 2023 | by Ettinger Law Firm

Spend-down. Look-back. Penalty Period. Uncompensated Transfer. These are just some of the terms Medicaid uses to determine eligibility for long-term care coverage. Medicaid is a combined federal and state program that pays for long-term care at home (community Medicaid) or in a nursing facility (institutional Medicaid). Asset, income and gift rules vary for community Medicaid versus institutional Medicaid.

To qualify for community Medicaid, an individual cannot make more than about $1,700 per month and cannot own more than about $30,000 in assets. A married couple cannot make more than about $2,300 per month and cannot own more than about $40,000 in assets. Applicants can “spend down” excess income to the allowed amount by paying for medical expenses.

To qualify for institutional Medicaid, an individual can keep $50 per month (the excess goes to the nursing home) and cannot own more than about $30,000 in assets. For married couples, the spouse at home can keep about $3,700 per month and can own between about $75,000 and $130,000 in assets. If the spouse at home makes more than $3,700 per month, she may have to contribute some of the excess to the spouse’s cost of care. For married couples, the residence, up to value of about $1,000,000 and one car are exempt (not counted as assets). Everyone can have a burial trust worth up to $1,500 or any amount in an irrevocable pre-paid funeral trust.

Health Benefits of Forgiveness

Published on: May 26, 2023 | by Ettinger Law Firm

Each one of us experience countless injustices in the course of everyday living. Like other experiences, it is not the experience itself so much that counts, but how you process it. The Mayo Clinic addresses the health benefits of “forgiveness” which they define as “an intentional decision to let go of resentment and anger”. Letting go of grudges and bitterness can lead to:

Healthier relationships
Improved mental health

Reasons to Revise Your Estate Plan

Published on: May 19, 2023 | by Ettinger Law Firm

Estate planning is not written in stone. Instead, estate plans should be revised and reconsidered when various major life events occur.

Marriage may or may not involve a prenuptial agreement. Regardless, it may call for adding your new spouse’s name as beneficiary on insurance policies, on a will or trust, power of attorney, health care proxy and deeds.

Serious illness requires that you give thought to appointing someone to handle your affairs and making sure they have the documents needed to discharge the responsibility. You may want to add a second person to share the load or as a back-up. It is also the time to consider asset protection strategies should long-term care be needed one day, either at home or in a facility. One of the biggest mistakes we see, as elder law attorneys, is that the family becomes so focused on the medical side of things that they fail to focus on the legal side until it is too late.

Book Review: “Successful Aging” by Daniel J. Levitin

Published on: May 2, 2023 | by Ettinger Law Firm

In his best-selling book, “Successful Aging”, Daniel J. Levitin, Professor Emeritus of Psychology and Neuroscience at McGill University (your writer’s alma mater), shows how the brain is formed and how it changes, in surprisingly positive ways, as we age.

The author notes that Freud said that the two most important things in life are healthy relationships and meaningful work.

Socialization is crucial to maintaining our mental acuity. “Navigating the complex mores and potential pitfalls of dealing with another human being, someone who has their own needs, opinions, and sensitivities, is about the most complex thing we humans can do. It exercises vast neural networks, keeping them tuned up, in shape, and ready to fire. In a good conversation, we listen, we empathize. And empathy is healthful, activating networks throughout the brain.”

Contesting a Will

Published on: April 26, 2023 | by Ettinger Law Firm

In order to contest a will, the objectant must have “standing”, meaning they would legally be entitled to a share or a greater share of the estate if the will was declared invalid. “Standing” alone, however, is insufficient. There must also be grounds for contesting as provided below.

1. Undue Influence: Independent caregivers and caregiver children who end up being named primary beneficiaries under the will are often scrutinized for having prevailed upon the decedent to leave them the lion’s share of the estate. The various means alleged may be physical or mental abuse, threats and isolation of the disabled person. Even non-caregivers who had influence over mom or dad may be challenged where they end up with more than their fair share. As with any court proceedings, proof of the claim will need to be made.

2. Improper Execution: The formalities for executing a will must be strictly observed. The formalities include that the witnesses believed the decedent was of sound mind, memory and understanding. There must be two witnesses who signed in the presence of the testator and of each other. The testator must declare in front of the witnesses that they read the will, understood it, declare that it is their last will and testament and approve of the two witnesses to act as witnesses to the will.

If You Don’t Understand the Plan, You Don’t Have a Plan

Published on: April 19, 2023 | by Ettinger Law Firm

So many people who come in to see us do not understand the estate plan they have or do not know what is in their current plan. Some of the reasons for this are (1) time has inevitably blurred their memories, (2) the plan may be written in legalese and was never properly explained to them, (3) they may have misconceptions and misunderstandings of what their plan is; and (4) their lawyer may have lacked the knowledge required to find the right solution for their family in the event of death and disability. To this we say, “if you don’t understand the plan, you don’t have a plan.”

Ettinger Law Firm developed a process, in use for over thirty years, to avoid these problems. First, we offer a free initial consultation to go over the pros and cons of having a will or a trust and the differences between revocable and irrevocable trusts. So many people have misconceptions about trusts based on what friends have said or what they have read on the internet. For example, many clients are afraid to create an irrevocable trust because they think they will lose control. We explain why that is incorrect and how you can still change the trustee, change who you leave it to, take money out and even how you can revoke an irrevocable trust!

After the overview provided in the initial consultation, we give you a copy of our plain English book, “Elder Law Estate Planning”, and advise which chapters apply to your situation — maybe an hour or so of reading. We also invite you to watch the thirty minute estate planning video at trustlaw.com.

Polypharmacy in Older Adults

Published on: April 6, 2023 | by Ettinger Law Firm

According to the National Institute on Aging (NIA) polypharmacy is the use of multiple drugs to treat diseases and other health conditions. Polypharmacy is common in older adults, many of whom have two or more chronic conditions, and about a third of whom take five or more prescription drugs. Often, these different powerful drugs have been prescribed by different doctors. Some drugs mask or neutralize others, some are dangerously incompatible with others and some may worsen conditions that naturally occur in the aging population — such as loss of appetite, less efficient digestive systems and increased cardiovascular risk.

Inappropriate polypharmacy — the use of excessive or unnecessary medications — increases the risk of adverse drug effects, including falls and cognitive impairment. Harmful drug interactions and drug-disease interactions may also occur, where a medication prescribed to treat one condition worsens or creates a new one.

Enter the new field of “deprescribing”. The NIA is developing a network of scientists to advance the field of deprescribing to improve the quality of care and health outcomes for older adults. According to Parag Goyal, MD, “despite its role as an integral part of patient-centric and goal-concordant prescribing practice, deprescribing is not frequently incorporated into routine clinical practice”.

The Five Steps to an Elder Law Estate Plan

Published on: March 22, 2023 | by Ettinger Law Firm

Elder law estate planning provides for (1) your care in the event you become disabled as you age, and who will be in charge of that care, and (2) the passing of your assets on death to whom you want, when you want, the way you want, with the least amount of taxes and legal fees possible. These are the five steps to creating such a plan.

Step One: Understanding the Family Dynamics. Clients often overlook the inestimable value of getting to know the family dynamic. We are firm believers that the social goes first and the legal should serve the social. Too often it is the other way around. Once we understand who’s who and everyone’s interpersonal relations with each other, we are far better able to craft a plan that will work socially as well as legally. The failure to address the social aspects has led to many a plan tearing the family apart.

Step Two: Reviewing the Client’s Assets. IRA’s and other “qualified” assets (i.e. tax deferred) are treated quite differently, on death or disability, from “non-qualified” assets. The determination of the amount and value of all assets, who owns them, and whether they have named beneficiaries are of the utmost importance in planning correctly, including saving legal fees and taxes.

Trusts Create Order Out of Chaos

Published on: March 17, 2023 | by Ettinger Law Firm

At Ettinger Law Firm, we are fond of saying “trusts create order out of chaos” — for three major reasons:

First, as noted in previous columns, an ever-increasing number of Americans suffer a period of legal disability later in life. Without your own private plan for disability, consisting of a trust and a “prescription strength” elder law power of attorney, you run the risk of a state appointed legal guardian. Do you want the people you choose to be in charge in the event of your disability, with the freedom to act immediately in your best interests, or do you want the state to appoint someone who will require court permission to protect your assets and your family — which permission is sometimes denied. A guardianship proceeding is expensive, time-consuming and stressful — in other words, chaotic. Trusts create an orderly process whereby your appointed trustees consult with your elder law attorney and are free to act immediately without court interference.

Secondly, trusts avoid probate court proceedings on death whereby wills, even though supervised by an attorney, with two witnesses and a notary, must first be proven to be valid in court proceedings. The client has no control over probate court proceedings – the time they will take or the amount they will cost. Typically, it takes months and, not unusually, one to two years or more. Meantime, property cannot be sold and assets cannot be reached to pay bills. In other words, chaos. With a trust, the trustee may act immediately upon death, list property for sale and access investments and bank accounts.

Death with Dignity: Hospice Care

Published on: March 14, 2023 | by Ettinger Law Firm

The recent announcement by 98 year old Jimmy Carter, our long-lived president, that he was opting for hospice care at home instead of additional medical intervention, is in keeping with the trend towards dying with dignity. Hospice care arises when an illness is either no longer responding to medical treatment, no medical treatment is available, or the patient has decided they want to transition from treatments intended to prolong quantity of life to treatments intended to improve quality of life.

One of the great misconceptions about hospice care is that it is the cessation of medical care. Dr. Sunita Puri, author of “That Good Night: Life and Medicine in the Eleventh Hour” defines hospice care as “intensive comfort-focused care, provided with the goal of minimizing the physical, emotional and spiritual suffering that patients and their families experience when somebody has possibly six months or less to live.” While hospice can usually take place at home it can also be in a facility and is paid for by Medicare Hospice Benefit.

The hospice “team” consists of (1) a nurse to assess and manage pain and provide hands-on-care, (2) a social worker, to offer emotional support and help with planning, (3) a physician to interface with the patient’s primary physician and consult on pain and symptom management and make house calls, (4) a hospice aide to help with personal care needs, such as bathing, (5) clergy to offer spiritual support, (6) volunteers to help in a variety of ways, and (7) a bereavement specialist to provide grief and loss counseling.