pwwlaw

Planning today to protect your family's tomorrow.

Have you asked the Top 10 Questions?

Elder Law is a specialized area of legal planning meant to guide any adult through lifetime planning, end of life planning, and asset protection planning.  At the root of elder law is estate planning.

What is estate planning?  For many, the concept seems limited to signing a series of lengthy, legalistic documents in order to meet the goals of providing for loved ones, reducing tax liability, and avoiding probate.  However, a true estate plan encompasses much more than executing the right documents, and encourages reflection on both the brevity of life and the client’s unique family dynamics.

Planning for the future can bring about overwhelming feelings of anxiety, insecurity, and the desire to avoid the topic all together.  However, working with the right team of professionals, engaging in productive communication, and taking the process one step at a time can help ensure a positive and goal-oriented outcome while making these necessary arrangements.  Additionally, the sooner a family takes action, the more legal planning opportunities they may have to succeed in meeting their goals.

How do we identify the best legal professionals in this specialty of law?  Consider the questions below.  The Elder Law firm that can answer these questions without hesitation may prove to be a great fit for your needs.

Top 10 Questions to Ask Your Elder Law Attorney

  1. Does your firm focus only on this area of the law?
  2. Are you a solo practice or do you have a team of professionals working on my case? What steps/process will I follow?  Who will be my point of contact?
  3. Do you offer educational events in my local community?
  4. What steps do you take to remain up-to-date on current state and federal law, and Medicaid rules?
  5. What kinds of planning strategies do you use to shelter assets?
  6. What protections are offered to the healthy spouse?
  7. What is the likely outcome of my case based on the facts I have shared with you?
  8. Are fees computed on a flat or hourly rate and how often does the attorney bill? Does the pricing I have been quoted include the funding of my Trust?
  9. What is your success rate of avoiding probate when a client passes?
  10. Do you offer an Estate Planning Maintenance Program?

Procino-Wells & Woodland, LLC is a local Elder Law firm with offices in Seaford and Lewes, DE, and practicing in both Delaware and Maryland.  Michele Procino-Wells, Amber B. Woodland, and Leslie Case DiPietro specialize in only this area of the law and take great measures to travel the country every year to remain well versed in the newest planning opportunities and changes to the state and federal laws.  Our staff of eleven take a team approach to each client’s case under direct advisement of our attorneys.  Clients can expect flat fee billing that is proposed upfront during our initial consultation and accompanies a specific scope of work for the services that will accomplish that client’s goals.  You may learn more about our firm by visiting our website, www.pwwlaw.com, and be sure to click on our News & Events tab where we offer a number of free community educational events.

Sheltering Your Assets to Qualify for Medicaid

By: Kyle Massey

Medicaid enrollment is something none of us like to think about. But, like all aspects of elder care, it’s something best approached head-on and well in advance. Careful planning ahead of time can save us and our loved ones from untold stress and worry, to say nothing of the unnecessary financial burden, should we become seriously ill, disabled or require long-term care.

We’re all aware that Medicaid is a joint federal/state program for “poor” Americans who are elderly, disabled or blind. But did you know that Medicaid is the nation’s single largest payer of nursing home bills? Even if you don’t feel you fit the classic definition of “poor,” the expenses of long-term care can still place an enormous strain on your finances.

One of the more common misconceptions about Medicaid is that a person cannot have more than $2,000 in assets to be eligible to enroll in Medicaid. Many people find themselves spending up or giving away their life’s savings in order to fall below this threshold—in other words, to become suitably destitute as to qualify for Medicaid. This is simply not true. In fact, it isn’t generally recommended, because Medicaid has a “look-back period” of 60 months. This means that, barring certain specific types of transactions, the assets may still be considered yours for 5 years after you get rid of them, either as gifts or as transfers of property for less than fair market value (i.e., selling your house to your son or daughter for a dollar). It’s possible to find yourself broke and still not eligible for Medicaid for quite some time—obviously not a good position to be in. Likewise, the idea that you can put all your assets in your spouse’s name in order to qualify is a myth, as Medicaid generally considers all of a couple’s assets regardless of how they are titled.

There is absolutely no reason to spend all the money you’ve worked for during the course of your life on long-term care, however. There are some safe, legal, and ethical steps you can take now to protect your assets. An attorney experienced in elder law can help you rearrange your finances in such a way that you can qualify for Medicaid, yet still preserve your assets for your family.

One way to do this is to convert so-called “countable assets” into non-countable assets, which are off-limits. For example, Medicaid doesn’t count items such as your primary residence (i.e. your family home), one vehicle, prepaid burial plots, and term life insurance. By paying off the mortgage or making improvements or repairs on your home, or purchasing a new vehicle, your countable assets (money) become exempt (house, car).

Another method of sheltering your assets is to use a trust. The main difference between a trust and a will is that a trust goes into effect as soon as you create it, whereas a will only becomes effective after death. If done properly, putting your money or property into a trust can effectively take it out of play and preserve it for your loved ones. There are several types of trusts, each with their own advantages and disadvantages.

Two points that can’t be overemphasized: First, by using any of these methods, you are entirely within your rights. You aren’t hiding assets from the government, which is illegal and which no reputable lawyer would advise or assist you to do. Instead, you are only taking advantage of the provisions in your state’s Medicaid laws. Some people resist this type of planning because they feel it’s “gaming the system.” It’s not. Just like the tax deductions you’ve been taking all your life, these exemptions were created with the full intent that average people would make use of them. By doing so, you are not only making a wise decision about your own future and that of your family, but also an ethical one. You have to look out for yourself and your loved ones.

It’s just as important to note that Medicaid planning is not a swamp you should try and navigate by yourself. Although Medicaid is a federal program, some of its finer points vary from state to state, as well as from one person to the next. What works for your cousin, your neighbor or the guy next to you at the diner may not work for you. These people may not even know what they’re talking about anyway. We strongly recommend you consult with an experienced elder-law attorney. A lawyer can help you figure out which tactics are best suited for your particular situation and make sure that everything is done correctly. The sooner the better: you want to have all these measures in place well before you need to enroll in Medicaid and/or move to a long-term care facility. But even if you’re already in a nursing home, there may still be some options open to you.

We’ve all heard Medicaid horror stories from our family and friends. If we start planning early, we can avoid becoming the next one, while protecting our assets and preserving a legacy for our loved ones.

Funeral Planning: A Difficult (but Necessary) Contemplation

A funeral or memorial service is a traditional and emotionally-necessary rite of passage in nearly every culture on earth. Funerals serve a number of purposes, from honoring the dead to providing an open time for families to grieve and receive support. Like most life milestones, a bit of pre-planning is often a good idea to ensure all essential components of the service are in place and the deceased is honored precisely how he or she envisioned. Moreover, pre-planning a funeral is a good way to relieve the financial burden of a casket, service, burial/cremation, and gravestone on already-bereaved surviving family members.

Where to start

When planning a funeral, the best place to start is with the over-arching tone of the day: do you want a somber, immediate-family-only, private affair? Or would you prefer a more joyous celebration of life? Do you intend to involve religious affirmations throughout? Or is an inter-faith (or non-religious) service more your style? By choosing the tone of the service from the outset, this will serve as a manageable framework when making more difficult decisions.

Another major issue to consider right away is the nature of the final disposition of your body. Some people prefer a traditional open-casket service, followed by a graveside sendoff immediately thereafter. Others, for personal or cultural reasons, prefer their last remains be cremated and scattered in a meaningful location. This major decision should not be taken lightly, and should be clearly communicated both in personal interfamily conversations and your estate plan.

The service details

Your funeral plan can be as detailed – or as general – as you’d like. Funeral homes are in the business of providing families with a seamless and calming approach toward making decisions, and if your funeral plan does not have every detail included, that is okay.

Music is one major area of importance for many, as is the reading of certain scriptures, proverbs, or inspirational quotes. There is no right or wrong here, and if there is a hymn you really love, include it! Even if it happens to be Joy to the World.

Closed versus open casket is another important point to consider when planning for your funeral, and some people opt to give their family the final say – as an open casket may be difficult depending on the final condition of the body. If you choose an open casket, you may also wish to include certain instructions as to burial clothes, jewelry, even hairstyle – and the mortician will make certain to honor your wishes during the preparation process.

Finer points to consider

Funerals often double as flower shows, and it is not uncommon for dozens of white blossoms to artfully surround the casket. While this undoubtedly adds beauty and splendor to an otherwise dreary occasion, many people prefer to direct the funds allocated for such gifts to a favorite charity. If this is your wish be sure to include this in your funeral plan, as well as inform close friends and family about your preferences.

Writing an obituary is a task that proves exceptionally difficult for some, while others revel in the opportunity to ensure they are properly memorialized in print. If typing out your own obituary is too close for comfort, take heed in knowing that the funeral home or church will be of great assistance in ensuring a proper and comprehensive obituary is published.

Pre-paying for your services

The average cost of a funeral is approximately $15,000 – and most funeral homes will require payment as soon as possible following the service, if not beforehand. What’s more, a proper headstone and burial plot can also significantly increase the final costs, creating additional burden for family members. If you are interested in taking care of this final detail, most funeral homes offer the option of prepaying for the entire service, including the casket, burial and arrangements.

Take precautions, however, against working with opportunistic service providers or funeral homes with anything other than a generations-old upstanding reputation in the community. From a consumer protection standpoint, prepaid funeral providers can be a hotbed for fraud and deception, and setting aside funeral funds in a savings account may be a more prudent approach.

Contact a reputable and experience estate planning attorney for additional information

If you are considering adding a funeral plan to your estate portfolio, we encourage you to contact us as soon as possible to honor your final wishes. For a consultation, please call Procino-Wells & Woodland, LLC by calling 302-628-4140.

Home and Community Care: Offers much-needed peace of mind for family members concerned about leaving their loved one alone

May is National Elder Law Month!

Medicaid Planning: Home-Based & Community Services

By: Michele Procino-Wells, Esquire

Maintaining one’s independence and personal autonomy is one of the most foundational principles of freedom. However, living with a debilitating illness or disability can place great limitations on these personal freedoms, which in turn has caused many to experience depression, anxiety, and withdraw.

Historically, recipients of Medicaid long term care benefits who were diagnosed with a condition like dementia (even if mild) or other cognitive disorders were automatically institutionalized in a long-term care facility, even if their needs did not yet require round-the-clock supervision and monitoring. Seeing this as a problem, the Medicaid guidelines were amended in 1981 to allow for the inclusion of home-based and community services within the breadth of coverage – thereby preserving an individual’s comfort and integrity by allowing for in-home nursing care or adult day services.

In Delaware, individuals who are elderly or disabled may be eligible for coverage for any of the following home-based or community services:

  • Adult day services
  • Alzheimer’s day services & family respite
  • Assisted living
  • Assistive devices
  • Attendant services in the home
  • Congregate meals
  • Case management
  • Emergency response
  • Personal care

Qualifying for Medicaid coverage of home-based and community services

Home and/or community care can offer much-needed peace of mind for family members concerned about leaving their loved one alone – even for a brief period of time. For a spouse accompanying his or her companion through the throes of dementia, adult day services or in-home caregivers can become a vital component to the overall wellness of the entire family unit. Oftentimes, a primary caregiver is required to forego employment, social activities, and most hobbies in order to engage in round-the-clock monitoring of their spouse.

Many families put off receiving help with the care of an ill loved one because they mistakenly believe their only option is nursing home care or that home care would be too expensive for them.  However, with appropriate planning many families can qualify for home based services paid for entirely by Medicaid.  This planning may involve converting some of the Medicaid applicant’s assets to income or strategically spending down some assets but generally a single person can usually shelter at least 50% of their assets and a married person can usually shelter at least 80% of their assets.

Medicaid planning strategies may include purchasing irrevocable funeral arrangements, paying for home improvements, paying off debt, entering into Caregiver Agreements with family members, gifting assets and purchasing certain types of annuities authorized by Medicaid.  All such strategies are permitted by state and federal law and are all fully disclosed to the Medicaid office upon application for benefits.  It is critical though that these strategies be part of a comprehensive asset protection plan created by an elder law attorney who specializes in long term care asset protection planning.

If you are facing a difficult situation with a loved one who could benefit from a home or community based service provider, contact Procino-Wells & Woodland, LLC by calling 302-628-4140.

The New Date You Should Remember: April 16th

April 16th is National Healthcare Decisions Day

Advance Care Planning: Health Care Directives versus Do Not Resuscitate Orders

 By: Michele Procino-Wells, Esquire

 Advance care planning is the process of considering, discussing, and documenting your wishes for medical care at the end of your life.  It is important to determine, in advance, what type of care you want and do not want used when that time comes.

When you have written your wishes down before you become seriously ill you have created a legal document called an Advance Health Care Directive.  A thorough Advance Health Care Directive has three components: 1) the appointment of an agent to make medical decisions; 2) the direction regarding your health care choices; and 3) the ability to set forth specific organ donation wishes.

Appointing an Agent

A health care agent is someone you designate to make medical decisions for you if at some future time you are unable to make decisions for yourself.  Your agent may be a family member or any other person you trust to make serious decisions.  The person you name as your agent should clearly understand your wishes and be willing to accept the responsibility of making medical decisions for you. For this reason, it is advisable to discuss your wishes with your agent and to be sure that your agent has a photocopy of your Advance Health Care Directive.

You can appoint more than one person to be your agent.  This would require your agents to act jointly in making medical decisions for you.  You can also name a person as an alternate agent who would step in if the first person named is unable, unwilling, or unavailable to act for you.

Health Care Directions

This critical component of an Advance Health Care Directive is commonly referred to as a living will.  It gives you a say about what type of medical procedures you would or would not want used if, in the future, two doctors have determined that you are incapacitated and unconscious or terminally ill.  For instance, you choose for yourself whether you would want artificial hydration or nutrition; mechanical respiration; and/or kidney dialysis if you were determined to be in one of the qualifying conditions mentioned above.  By making these types of decisions for yourself, those who care for you (i.e. family members) will not have to guess what you want or be burdened with making those difficult decisions for you.

Organ Donations

Many people elect to be an organ donor without realizing that they can give very specific direction regarding the same.  The last critical component of an Advance Health Care Directive allows you to choose what organs and/or parts you desire to be donated upon your death.  It further allows you to direct for what purpose they are to be donated and to whom.

A thorough Advance Health Care Directive that contains all three components is a key part of a well-rounded estate plan.  However, in the event of a medical emergency, an Advance Health Care Directive will have little to no effectiveness.  That is due to the fact that ambulance and hospital emergency department personnel are required to provide CPR, that is, emergency treatment to restart your heart or lungs when your heartbeat or breathing stops, unless they are given a separate directive that states otherwise.

A Do Not Resuscitate Order is a written directive that allows you to instruct medical professionals to not perform CPR.  It is entirely separate from an Advance Health Care Directive and should not be combined with one.  Do Not Resuscitate Orders do not allow you to appoint an agent to make medical decisions nor do they permit written statements regarding your advance health care decisions or organ donation wishes like Advance Health Care Directives do.

Additionally, Do Not Resuscitate Orders are designed for people whose poor health gives them little chance of benefiting from CPR.  As such, they should be taken very seriously.  Contrast that with an Advance Health Care Directive, which should be created by all adults over eighteen years of age.

Great care should be taken when considering end-of-life planning and creating either of these legal documents.  Although it is hard to talk and think about the final phase of life, it can be a huge gift to your family and loved ones to prepare them in advance for the sometimes difficult and distressing decisions that must be made.  For those who wish to plan in advance, the assistance of an experienced elder law or estate planning attorney can ensure that you have detailed documents in place that cover nearly any situation that may arise.

 

Keeping Up With Change; Estate Plans are no Exception

Contributed by Maria J. Mulrine, Client Concierge

Change is inevitable. Bob Dylan may not have been too far off when he sang “For the times they are a-changing.” Times really do change, sometimes slowly, but all too often in the blink of an eye. Those changes in everyday life can lead to those in your estate planning and sometimes it is beneficial to take a look at your planning and ask, “Does this still make sense?” Are all of the assets you treasure protected? Are your trustees and other beneficiaries still in the picture? Though signed, sealed and stored safely in a lock box- plans can indeed, and often need to, be updated. In consideration of this, we have designed a program to ensure your planning is up to date with your current wishes.

You may have thought your estate plan was complete. Aware of the consequences of not planning ahead, you took all the precautionary steps to get your affairs in order. With the guidance of a trusted attorney, you gathered all of your assets and placed them in the safe haven of a trust. Your home of thirty years where you raised your three children and still reside is safe from the wrath of the probate process and your treasured ‘64 Mustang will never be sold to pay for the costs of your long term care. All of your children will receive equal gifts, and your four grandchildren are included as well.

The benefit of pre-planning is the opportunity to put your affairs in order in conjunction with your specific desires. However, through ups, downs, twists and turns in life, many of us have learned to expect the unexpected. The following are likely happenstances that would prompt a change in your planning:

  • Changes in laws
  • Changes in health
  • The birth of a child, grandchild or other person you want to benefit
  • The marriage or divorce of a beneficiary
  • The death of a designated beneficiary under your estate plan
  • You acquire new assets
  • You want to make a change to the persons in charge (such as Trustee, Executor or Agent)

Our Estate Plan Maintenance Program assures your planning accomplishes everything you desire. By enrolling in our program, you will receive planning paired with peace of mind. Memberships begin at a two year minimum and include quite a few perks. A biennial consultation, estate plan related phone calls, and changes to fiduciary designations are all included, as well as an overall review of your existing estate plan. With the value of family in mind, our program allows the opportunity to share a free consultation with a family member and for lifetime members, includes a complimentary consultation with you Successor Trustee following your death to review and discuss the estate administration process. Other benefits include invitations to members only Off-the-Clock workshops, “Trustee School,” and a discount on any future Trusts created to update your existing plan. We want to create an ongoing relationship with you and your family as a counselor, to make certain your wishes are honored.

Outdated estate plans can lead to disputes among family members, leaving legacies and relationships diminished. Assets that are not funded into a Trust are ultimately subject to an unnecessary probate proceeding, in which the comforting privacy of a Trust is lost. In more complex situations, assets untended to can cause unnecessary roadblocks when it comes to arranging long term care. A thorough, carefully constructed estate plan is truly a gift to your loved ones, leaving smooth sailing, and a living legacy long after you’re gone.

There is peace of mind in knowing your estate plan is always updated, in order, and ready for a smooth transition of assets to your loved ones. We invite clients, new and existing, to be a part of our new Estate Plan Maintenance Program. Contact Procino-Wells & Woodland at 302-628-4140 today.

 

If We Had Only Known…

Contributed by Thad Rauhauser, Elder Law Assistant

My mother worked a variety of jobs when I was growing up and my father worked in the shipping department of a manufacturer.  They both worked very hard, always with an eye toward the future.  They took advantage of an IRA that paid 10% interest (unimaginable today) which produced great earnings.  My father passed away in 1988.

As my mother grew older, she progressed as most aging people do:  sold the house, moved to an apartment, moved from the apartment to assisted living, and eventually moved to a skilled nursing facility.  Since I lived 150 miles away, my sister became the point person for keeping track of my mother’s medical and financial affairs.  In 2009, as my mother’s physical and mental condition deteriorated, my sister continued with the medical side of things, but I took over managing her finances.  After having new estate planning documents drawn up, pre-planning and paying for her funeral, she had about $220,000.00.  While not a lot of money to some, my mother was always in disbelief that she and my father could have saved so much.  I calculated that even with increases in her expenses and earning nothing on her investments, she had enough money to last until 2015 between assets and Social Security income.

Sometimes things don’t go according to the plan.  Her physical and mental condition worsened to the point where moving into a skilled nursing facility was unavoidable. A step we didn’t want to take because she always said, “Please don’t put me in one of those places.”  We were lucky to get her into a facility that was clean, had lots of activities, and compassionate staff that fell in love with her.  She called everyone on the staff “Chickie” (a way for her to cover that she couldn’t remember their name) and they’d call her “Chickie” right back.  The down side was that an assisted living bill at $3,250.00 per month became an almost $10,000.00 monthly skilled nursing bill overnight.  Instantly the 2015 projection became 2013.  What were we to do?  I guess the same thing everyone else does……..pay for her care until there is no more money and then apply for Medicaid.

Medicaid is a federal program that is administered by each state, and because of that, the rules vary from state to state.  There are two types of Medicaid, one being medical benefits for those with low incomes and the other being assistance to cover most of the cost of long term care.  Some states allow for in-home care or assisted living before skilled nursing care becomes necessary.  Delaware is fortunate that our Medicaid program will provide benefits at all three levels of long term care and that it includes the medical and prescriptions benefits of the other program.  For veterans that meet certain criteria, or their surviving spouses, there are also benefits available through the VA.

If we had only known that we could have pre-planned back when she moved from the house and been able to protect the majority of her assets to later pay for the few things that Medicaid does not cover.  If we had only known that even if we didn’t act until later (within the 5 year look back period when financial transactions have to be disclosed) that we could have still preserved part of her assets.  If we had only known that the allowed “spend down” strategies could have benefited her and her family.  If we had only known that depleting our mother’s assets paying for her care wasn’t necessary.

How could we have known?  While taking care of her finances, I learned a lot…Medicare’s Part A vs. Part B vs. Part D, 100 days of rehab Medicare benefit after 3 midnight stays in the hospital, tax implications of depleting an IRA, open enrollment, supplemental insurance plans (that have different levels too), co-pays, deductibles, “donut holes” (not the good kind) and on and on.  But even with all that, I didn’t know anything about Medicaid and the benefit it could have provided so that my mother didn’t have to go “bankrupt” paying for her care.  My mother would ask, “Is everything set up for you kids to get my money?”  She continued to ask that after all of her money was gone and I continued to tell her “yes”; which is something you do with an Alzheimers patient…just agree.  To think, for the cost of a month or two of skilled nursing care, if I had only hired an Elder Law attorney, I would have been telling the truth.  If I had only known there were Elder Law attorneys like Procino-Wells and Woodland, who specialize in Asset Protection Planning and are there to provide guidance in becoming eligible and applying for benefits.

My mother passed away in 2014.  I miss her.