Q. My 86 year old mother had a stroke last week, was in the hospital, and was moved to a nursing home for rehabilitation. I was wondering about Medicare coverage. Does Medicare cover nursing home stays? What if she needs more than the 100 days I read about?
A. Many people believe that Medicare covers nursing home stays. It is true that Medicare covers up to 100 days of short-term rehabilitation per illness, but there are a number of requirements that must be met before this short-term rehab stay will be covered. The result of these requirements is that Medicare recipients are often discharged from a nursing home before they are ready.
In order for a nursing home stay to be covered by Medicare:
- The patient must enter a Medicare-approved “skilled nursing facility” or nursing home within 30 days after a hospital stay that lasted at least three days.
- The short-term rehabilitation care received in the nursing home must be for the same condition as the hospital stay. In addition, you must need “skilled care.” This means a physician must order the treatment and the treatment must be provided daily by a registered nurse, physical therapist, or licensed practical nurse.
- Finally, Medicare only covers “acute” care as opposed to custodial care. This means it covers care only for people who are likely to recover from their conditions, not care for people who need ongoing help with performing everyday activities, such as bathing or dressing.
It is important to understand that Medicare does not pay one penny for long-term care. (This section is excerpted from Evan H. Farr, CELA’s book ”Nursing Home Survival Guide- Helping You Protect Your Loved Ones Who Need Nursing Home Care by Preserving Dignity, Quality of Life, anFinancial Security,” available on Amazon.com)
“If you are enrolled in a traditional Medicare plan, and you’ve been in the hospital at least three days, and you are admitted directly from the hospital into a rehab facility (which are typically skilled nursing facilities for short-term rehabilitation (i.e., therapy and treatment designed to make you better), then Medicare should pay the full cost of this short-term rehab stay for the first 20 days, and may continue to pay part of the cost of the short-term rehab stay for the next 80 days — with a per day deductible that you must pay privately (although there are Medicare supplement insurance policies that sometimes cover that deductible). There is also a Medicare Managed Care Plan, for which the 3-day hospital stay may not be required, and for which the deductible for days 21 through 100 is waived, provided certain strict qualifying rules are met But whether the plan is traditional Medicare or Medicare Managed Care (MMC), the nursing home resident must be receiving daily rehabilitative care and must be improving. Medicare does not pay for long-term care i.e., for custodial nursing home stays or in-home care. In a best case scenario, traditional Medicare or MMC will provide some coverage for the hospital stay and rehabilitation of up to 100 days for each “spell of illness” (although in our experience coverage usually falls far short of the 100-day maximum). If you recover sufficiently that you do not require a Medicare-covered care benefit for 60 consecutive days, you may be eligible for another benefit period, i.e., another 100 days of Medicare coverage, but the illness or disorder must not be a chronic degenerative condition from which you will not recover. What happens if you’ve used up the 100 days of coverage and still need more rehabilitation, or if you need to move into long-term nursing home care? You’re back to one of the alternatives outlined above: long-term care insurance, paying the bills with your own assets, or qualifying for Medicaid.”
Did you know that nursing homes in Northern Virginia cost 10-12K a month? For typical middle-class people who pay out of pocket, these costs will most likely drain all of their hard-earned assets pretty quickly. For more information, read our recent blog post “How Can I Afford a Nursing Home?”.
Do you have a loved one who is in a nursing home or nearing the need for nursing home care? Or are you simply looking to plan ahead in the event nursing home care is needed in the future? Life Care Planning and Medicaid Asset Protection is the process of protecting your assets fro having to be spent down in connection with entry into a nursing home, while also helping ensure that you or your loved one get the best possible care and maintain the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. Learn more at The Fairfax Elder Law Firm of Evan H. Farr, P.C. website. Call 703-691-1888 to make an appointment for a no-cost consultation.
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The following was excerpted from Evan H. Farr, CELA’s new book, entitled “Nursing Home Survival Guide: Helping You Protect Your Loved Ones Who Need Nursing Home Care by Preserving Dignity, Quality of Life, and Financial Security.”
Buy the book on Amazon.com.
“One of greatest concerns people have about nursing home care is how to pay for it. There are basically four ways to pay for the cost of the care provided by a nursing home:
- Private Pay. This is the method many people must use at first. It means paying for the cost of a nursing home out of your own pocket. Unfortunately, with nursing home bills of more than $12,000 per month at some facilities, few people can afford to pay on their own for a long-term stay in a nursing home. Even those who can afford to do so often desire to explore other options — options that allow them to retain some or all of their assets for other important needs, while still permitting them to pay for nursing home care.
- Long-Term Care Insurance. If you have long-term care insurance coverage, this could help pay the costs of needed home care or nursing home care. Unfortunately, only about ten percent of the population carry long-term care insurance, so most people facing a nursing home stay do not have this type of coverage in place. Many people who would like to purchase this type of coverage find that they can not afford it. Read more about long-term care insurance on page 34.
- Department of Veterans Affairs. The Department of Veterans Affairs (VA) primarily pays for long-term care through the Veterans “Aid and Attendance” Special Pension Benefit payments. In some parts of the country, there are also nursing homes that are run by the Department of Veterans Affairs. You will find additional information about the Veterans “Aid and Attendance” Special Pension starting on page 46.
- Medicaid. This is a combined federally-funded and state-funded benefit program, administered by each state, that can pay for the cost of a nursing home if certain asset and income tests are met. According to AARP, about 70 percent of nursing home residents are supported, at least in part, by Medicaid. Medicaid qualification and eligibility is discussed in greater detail starting on page 52.
A WORD ABOUT MEDICARE
You will notice that Medicare is NOT listed among the sources of funds used to pay for long-term care in a nursing home. This is because Medicare does not pay a penny for long-term care, ever. Medicare is the national health insurance program primarily for people 65 years of age and older, those under age 65 who have been disabled for at least 24 months, and people with kidney failure. Medicare may provide some coverage for short-term (up to 100 days) rehabilitation in a nursing facility, provided you continue to get better from the rehabilitation, but you must meet certain strict qualification rules, which will be discussed in greater detail starting on page 36 .”
About “The Nursing Home Survival Guide- Helping You Protect Your Loved Ones Who Need Nursing Home Care by Preserving Dignity, Quality of Life, and Financial Security.”
In the book, The Nursing Home Survival Guide- Helping You Protect Your Loved Ones Who Need Nursing Home Care by Preserving Dignity, Quality of Life, and Financial Security,” Mr. Farr provides invaluable information and guidance to families dealing with the possibility of nursing home care and struggling to make the best decisions for themselves or their loves ones. Mr. Farr, a nationally-renowned Best-Selling author and frequent educator of attorneys across the U.S., uses his mastery of the subject to educate consumers about the ever-changing landscape of nursing home care in America and, most importantly, how to get the best care and how pay for that care without going broke.
Readers can get expert advice on diverse topics ranging from the basics — how do you select the best facility, what does Medicare cover, how to get the best long-term care insurance — to the advanced, such as Veterans Aid & Attendance Planning, Medicaid Asset Protection, Pre-Need Medicaid Planning, and Medicaid Crisis Planning. Mr. Farr provides access to a valuable Nursing Home Evaluation Tool and insights using case studies featuring some of the most common Medicaid Asset Protection strategies and how they pertain to real-life situations. Readers will also become educated about the rights of nursing home residents, estate and Incapacity Planning, How to Find the Best Lawyer, and more. The “Nursing Home Survival Guide- Helping You Protect Your Loved Ones Who Need Nursing Home Care by Preserving Dignity, Quality of Life, and Financial Security” is now available on Amazon.com.
Do you have a loved one who is in a nursing home or nearing the need for nursing home care? Or are you simply looking to plan ahead in the event nursing home care is needed in the future? Nursing homes in Northern Virginia cost $10-$12K per month. Life Care Planning and Medicaid Asset Protection is the process of protecting assets from having to be spent down in connection with entry into a nursing home, while also helping ensure that you or your loved one get the best possible care and maintain the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. Learn more at The Fairfax Elder Law Firm of Evan H. Farr, P.C. website. Call 703-691-1888 to make an appointment for a no-cost consultation.
Q: I have a 75 year old father who lives alone in his home. He doesn’t have an in-home caregiver, but has lots of friends and family who check in on him regularly. Since he served during the Vietnam War, he has had flashbacks that still affect him and keep him up at night. He suffered at least one stroke in the last 5 years, has trouble walking, seeing, and hearing things, left the stove on recently and sometimes forgets to take his medication.
I think he would do so much better if he moved to an assisted living community. Plus I wouldn’t worry as much knowing that he had appropriate care and supervision. The problem is he’s resistant to the thought of this change. How do I talk to him?
A: The decision to help your father move out of his current home is a complex one — both emotionally and practically.
If he is showing signs that living alone is a strain, it may be time for a talk. Before having the talk, be prepared for the psychological roadblocks you’re likely to hit when you broach the subject. The following tips will help make the conversation more productive, and maybe even pleasant:
- Understand that your father’s home represents control. You’re asking your father to let go of control at a time when age itself may be making him feel he’s losing control over so much else — fundamentals like mobility, vision, hearing, his very ability to navigate the world.
- Look at housing from his point of view. Visit the assisted living facility that you’d consider for your father. Imagine you were in his shoes on your way in the door. Think about how he may feel in making this place his home.
- Be tactful and gentle. Broach the subject of where to live in a neutral way and you may find that your father harbors the same fears for current and future safety and security that you do. Find out what your father fears most about moving and about staying before launching into your own worries and what you think ought to be done
- Remind yourself that he may come around to the idea. Attitudes change, and the most resistant older adults sometimes wind up as the happiest retirement community residents if they eventually realize they need help. But if he doesn’t wind up moving when you think he should, you can still support him by making his housing situation as safe and comfortable as possible.
- Keep in mind that in the end, it’s his decision, not yours — and communicate that thought to him. As long as he’s mentally competent, acknowledging that he’s in charge of his own life will make the process of helping him navigate the housing maze more positive and productive for all involved.
If, on the other hand, your father has a full life, a close neighborhood and community connections, and seems to be thriving, it’s worth exploring as many in-home care options as possible before raising stress levels by pressing a move from a beloved home. We here at The Fairfax Elder Law Firm of Evan H. Farr, P.C. hope you and your father talk and listen to one another and come to a resolution that works best for his happiness and well-being, and your concerns about his living alone and being able to take care of himself.
Whether the outcome is in-home care or assisted living, we suggest that you plan ahead in the event nursing home care is needed in the future. Life Care Planning and Medicaid Asset Protection is the process of protecting assets from having to be spent down in connection with entry into a nursing home, while also helping ensure that you or your loved one get the best possible care and maintain the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home.
The Fairfax Elder Law Firm of Evan H. Farr, P.C. has also recommended to clients like your father that he may be eligible for the Veterans Aid and Attendance Benefit, but may also need Medicaid for nursing home care in the future. To be eligible for the Veterans Aid and Attendance Benefit, beneficiaries must be at least 65 years old (or totally disabled), veterans or married to veterans who served during a wartime period, and must have been not dishonorably discharged. Applicants must also need help with at least one activity of daily living: eating, walking, dressing, bathing, using the toilet, or adjusting prosthetic devices. Those who live in nursing homes or require in-home care, or are blind, may also be eligible. Please call 703-691-1888 to make an appointment for a no-cost consultation.
Transitioning a loved one into assisted living or a nursing home isn’t easy for most families, especially if your loved one has Alzheimer’s. For a person with Alzheimer’s disease, changing the routine and moving into an unfamiliar environment make the move especially daunting. If you’re helping a loved one who has Alzheimer’s move into a care facility, these are some tips to make the transition as comfortable as possible:
- Make frequent visits before the move. Consider carefully whether to include your loved one in these visits. If your loved one is interested, it might make sense to bring him or her with you. If you sense that a visit would only create stress and anxiety, visit without your loved one.
Speak with the staff about your loved one’s background and any special needs. Provide details on your loved one’s medical and mental health history, including a detailed medication list.
- Before the move, make your loved one’s new room or space look and feel as familiar as possible. Decorate the area with a treasured quilt, a shelf with special items, a favorite chair or other meaningful possessions. Familiar belongings can trigger feelings of connectedness and ownership, as well as boost your loved one’s sense of security.
- Bring pictures of loved ones and friends, memory books or photo albums. Reminiscing about the past can help a person who has Alzheimer’s bring reassuring memories into the present. Label the pictures to help staff members or others identify the people in your loved one’s life and encourage conversations about the past.
- As you’re preparing your loved one’s space, be careful with heirlooms and irreplaceable items. Consider bringing items that can be replaced easily if necessary — such as copies of old photos instead of the originals.
- On the day of the move, follow your loved one’s normal routine as much as possible. If you can, handle the move during your loved one’s best time of day — whether it’s in the morning or the afternoon.
While you’re moving, do your best to stay positive. Your attitude can help your loved one feel safe and secure in the new environment. Once your loved one is settled, trust the staff to help with the next big step — your departure. Rather than making a big deal about your leaving, the staff might engage your loved one in a meaningful activity while you walk away.
Leaving your loved one in the new home or facility might be difficult for you — both on the day of the move and in the weeks and months that follow. Feelings of grief, loss and guilt are normal. Keep in mind that it might take your loved one a couple of weeks to a couple of months to become acclimated to his or her new living arrangements. Trust the facility’s advice as to whether to visit your loved one regularly during this transition time or to stay away. Staying away during the transition time may be very difficult for you, but may be better for your loved one by allowing your loved one time to acclimate to the new surroundings without being frequently reminded of the old.
Once your loved one is settled in the care facility, be sure to read our article about Looking out for a Loved One in a Nursing Home.
Do you have a loved one who is in a nursing home or nearing the need for nursing home care? Or are you simply looking to plan ahead in the event nursing home care is needed in the future? Make sure you are prepared financially. Persons with Alzheimer’s and their families face special legal and financial needs. At the Fairfax Elder Law Firm of Evan H. Farr, P.C., we are dedicated to easing the financial and emotional burden on those suffering from Alzheimer’s and their loved ones. Nursing homes in Northern Virginia cost $10-$14K per month. We help protect the family’s hard-earned assets while maintaining your loved one’s comfort, dignity, and quality of life by ensuring eligibility for critical government benefits.
Life Care Planning and Medicaid Asset Protection is the process of protecting assets from having to be spent down in connection with entry into a nursing home, while also helping ensure that you or your loved one get the best possible care and maintain the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. Call us today at 703-691-1888 to make an appointment for a no-cost consultation.
Organizing life can be difficult, particularly when you are coordinating your care or that of a loved one. Doctors’ appointments, medication schedules, and other activities can seem overwhelming. But, your smartphone or tablet can prove to be a big help in these and other areas. If you’re a child caregiver, consider adding an extra smart phone or tablet to your plan for your parent, or re-purposing your old smartphone or tablet when it’s time for you to upgrade.
Although there is no single app that can ever take the place of medical advice and diagnosis from a physician, these apps can come in handy for day-to-day health questions and concerns, exercising your brain, tracking your food intake and retrieving important information:
- The WedMD app allows you to access first aid treatment suggestions and research common illnesses.
- Pain Care records pain levels, duration, characteristics, mood and triggers in order to automatically share this information with physicians who can prescribe or adapt medications.
- MedWatcher pushes safety alerts for medical devices and for drugs to your tablet or smart phone. It also allows the user to report adverse events (and side effects) directly to the FDA. This feature has the potential to make devices/drugs safer for everyone involved.
- Instant Heart Rate uses the camera on your smartphone to detect the pulse from your fingertip.
- Magnifying Glass with Light – Allows anyone with poor vision to read or locate things a bit easier
- GoMeals gives you tools and information to help you succeed at healthy eating. It features three applications in one–A nutritional database, powered by CalorieKing, combined with a restaurant locator and a food tracking tool.
- CogniFit is the ultimate brain training app. Play different brain games to challenge your mind and train your cognitive skills.
- Pillboxie is the easy way to schedule reminders for yourself and remember your meds.
- Words with Friends is a multi-player word game where players can take turns building words crossword puzzle style with an opponent in a manner similar to the classic board game.
- Find My Phone will help you locate your missing device on a map, play a sound, display a message, remotely lock your device, or erase all the data on it.
- iBooks includes the iBookstore, where you can download the latest bestselling books or your favorite classics – day or night.
- iCam allows you to remotely monitor multiple live video and audio webcam feeds from your iPhone, iPod touch or iPad over WiFi, 3G and EDGE. A great use for this app is for a child caregiver to remotely monitor aging parents to make sure that they are ok when left alone..
- Elder 911 has useful info for caregivers and others.
- Phonotto – simplifies all phone functions for seniors
- Springpad gathers all those things you want to remember in an accessible place and then provides more information about them, all within the palm of your hand. It’s like having a reliable and efficient personal assistant with you always.
- Remember the Milk app will not only remind you to pick up milk, but will also direct you to the nearest supermarket.
We here at the Fairfax Elder Law Firm of Evan H. Farr, P.C. are pleased to see all of the advances in technology and apps available to help improve seniors quality of life, health, and well-being. Now that you know about these apps and you’ve planned for everything from what to pick up at the grocery store to setting up reminders to take your meds, it is time to plan for your future and for your loved ones. Evan H. Farr is a Certified Elder Law Attorney with a focus on helping protect seniors and their families by preserving dignity, quality of life, and financial security. Call us at 703-691-1888 to make an appointment for a complimentary consultation.
When many first consider Estate Planning, they immediately think of preparing a Last Will and Testament. While having a Will is slightly better than dying without a Will (i.e., dying intestate), Wills also have some major drawbacks – the biggest drawback being that a Will forces your estate to go through probate.
The probate process includes proving the authenticity of a person’s Will, appointing an executor, identifying and inventorying a person’s assets, paying debts and taxes, identifying heirs, and distributing property according to the Will, or if no Will is available, according to state law. See below for five detailed reasons why Probate is such
- Probate requires frustrating intrusion by the court, lawyers, and the public into a very emotional, private, family time. A judge may have to determine who is a legitimate creditor, and may have to rule on distributions to children and other beneficiaries. Your estate may have to hire a lawyer to shepherd the executor through the legal maze.
- All of your affairs will become public knowledge. The contents of your Will would be on file in the courthouse, for all to read. And Wills are read. They are read by salesmen, by newspaper reporters, and by the morbidly curious, all seeking in one way or another to take advantage of the publicity required by the probate process.
- Probate takes time. Unless your executor is absolutely certain that there are no debts owed by the estate (a rare occurrence, since almost everyone leaves some small debts behind) and is willing to accept personal responsibility for your debts, the Virginia probate law mandates that your assets not be distributed for one year after you die, to allow creditors time to petition the court for full payment. Any assets distributed before that time come with a heavy cost for your executor — he or she is personally liable for the repayment of all of this amount, even if the beneficiaries to whom distribution is made have already spent the amount distributed. Thus, your executor will likely be very hesitant to distribute before all debts and taxes are paid. The court, not your family, will supervise and authorize the settling of all debts and the payment of inheritances, in its time and with its delays.
- On a national average the probate process takes from five to eight percent of your family estate out of the hands of your beneficiaries and gives it to the courts and other outside individuals. Planning with a trust can save the average American family about $30,000 in probate fees, attorney fees, and court costs alone, according to a national study by the AARP. The upfront cost of a trust is only slightly higher than just a will, but the savings in the end always makes the initial expense more than worthwhile.
- If you are not competent at any time before your death, the trustee of your living trust can serve as the caretaker of your property. This can avoid the expensive and embarrassing public process of a guardianship and conservatorship proceeding, where your children have to prove that you are not able to manage your own affairs. A living trust combined with a power of attorney provides the most complete protection available.
A proper Estate plan, kept up to date, helps minimize delays and costs and can provide for the prompt appointment of executors, guardians and trustees, payment of expenses and taxes, and settlement of claims.
How Steve Jobs Avoided Probate
Steve Jobs (1955-2011) was the co-founder, chairman, and CEO of Apple Inc. who seemed to have done a lot of things right, including avoiding probate. The details of his $7 billion estate will be kept private because Jobs and his wife implemented Revocable Living Trust planning. Probate nightmare avoided. Avoiding probate saves time, huge fees, and, likely most important to Jobs, keeps affairs private.
If Jobs had failed to use proper estate planning, his assets, debts, beneficiaries, and executors would be making headlines. All of this personal information would be available to the public because it would be part of the probate record filed at the courthouse. Anyone can walk in and request to view and copy a probate file. Today, many courthouses are online, so anyone in the world can access probate files. Would you want strangers, con men, long-lost cousins, nosy neighbors, and needy charities all
knowing who got what and how to contact them? You can protect your beneficiaries by keeping their inheritances and their identities private, by avoiding probate.
The best way to avoid probate like Steve Jobs did is to consult a Certified Elder Law Attorney, such as Evan H. Farr, CELA to design and implement a fully funded Revocable Living Trust or a Living Trust Plus, depending on your situation. Call The Fairfax Elder Law Firm of Evan H. Farr, P.C. at 703-691-1888 to set up an appointment for a no-cost consultation.
A key feature of the Affordable Care Act (ACA) is the expansion of Medicaid to millions of low-income Americans, many of whom are uninsured. Medicaid Expansion has been one of the most controversial parts of the new health care law, and some states are still deciding whether to take part in the expansion, including Virginia. Below are some FAQs about Medicaid expansion that explain the situation in Virginia and in the rest of the country.
Q. What is Medicaid expansion?
A. Effective January 1, 2014, the Patient Protection and Affordable Care Act (ACA) expands Medicaid to nearly all disabled individuals between the ages of 19-65 (children, pregnant women, parents, and adults without dependent children). However, the reach of the program will depend on both federal and state actions to implement the new law.
The ACA will also expand options for community-based care. There will be more opportunities for people of all ages who have a disability to get help with daily activities while remaining in their homes. The Medicaid program continues to move toward providing more community-based care options as an alternative to nursing homes.
Q. How does the expansion affect seniors?
A. Eligibility requirements for the elderly and persons with disabilities do not change under reform although some individuals with disabilities may become newly eligible under the adult expansion. Lawfully residing immigrants will be eligible for the Medicaid expansion, although many will continue to be subject to a five-year waiting period before they may enroll in coverage.
Q. How much will it cost?
A. Between 2014 and 2016, the costs of the expansion will be picked up by the federal government in full. After that, the fed’s contribution gradually decreases until it reaches 90% in 2022; it will remain at 90% thereafter and states will pick up the other 10%.
Q. What is the current situation with states expanding?
A. Though a countrywide expansion would provide coverage for some 17 million Americans who otherwise do not qualify for Medicaid, some states, including Virginia, say that paying for even 10 percent of the expansion may be too much for their tight budgets (Virginia is still undecided – see map below).
Current situation in the states:
Q. How many more people would enroll in Medicaid if Virginia expanded?
A. If Virginia expands Medicaid, an additional 327,000 adults who will be newly eligible for the program will enroll. Even if Virginia does not expand, enrollment is expected to increase by 80,000 as parents and children who are already eligible for Medicaid enroll in health coverage because other aspects of the ACA including the requirement for people to have coverage or pay a penalty, outreach to enroll people into exchange subsidies, and improved coordination.
Q. How much would the expansion increase state spending in Virginia?
A. Virginia will spend $1.3 billion more on Medicaid to cover additional enrollment of currently eligible children and parents through 2022 with or without the expansion. The expansion would increase state spending by $1.3 billion. Altogether, this additional spending is just 5.2 percent more than what Virginia would have spent on Medicaid in the absence of the ACA.
Q. What if Virginia decides not to expand?
A. Originally, the ACA called for States that refuse to participate in this expansion to lose federal funding for their current Medicaid programs. However, the Supreme Court ruled the federal government could not withdraw existing Medicaid funding to punish states for not expanding their programs, thus giving states the choice to opt out of the expansion. More than a few states have expressed intentions of doing so.
Q. How can The Farr Law Firm help seniors who need Long-Term Care qualify for Medicaid?
A. At The Fairfax Elder Law Firm of Evan H. Farr, P.C., with proper planning, families can obtain Medicaid assistance without having to deplete their life savings. Find out more about Medicaid Asset Protection. Call 703-691-1888 to make an appointment for a free consultation.
Join us tonight at 7 – 8 p.m. at Burke Centre Library for a “Long-Term Care Seminar”
Space still available. Call us at 703-691-1888 to register.
Burke Centre Library 5935 Freds Oak Road Burke, VA 22015
At this event about Long Term Care, you will:
- Learn what the most important estate planning document is, and find out whether yours is up-to-date!
- Find out if your Will is sufficient to meet your needs, or if a Trust is a better instrument for you!
- Find out how you can protect your assets from lawsuits, divorce, and long-term care creditors!
- Discover the important government benefits you or a loved one may want to qualify for in order to help pay for future long-term care expenses, including Medicaid and Veterans Aid & Attendance.
Presented by Evan H. Farr, CELA, principal attorney at The Law Firm of Evan H. Farr, P.C. in Fairfax, VA. http://www.farrlawfirm.com
Ask the Expert- Prenup and Estate Planning for a Second Marriage
Q: I am a 60 year old widow who is getting remarried in the spring. My fiancé and I are both in good health, and have adult children from previous marriages. We live in a home we purchased together last year. We heard it is a good idea to have a prenup for a second marriage. Would you recommend it and what type of estate planning do you suggest?
A. Congratulations to you and your fiancé on your upcoming nuptials!
In your situation, and for anyone entering into a second (or subsequent) marriage, I strongly recommend a premarital agreement. Many people mistakenly think of a premarital agreement as only dealing with what happens in the event of a divorce. However, the most important reason for a premarital agreement is to determine how your estate will be distributed when “death does you part,” i.e., when the first spouse dies during the marriage. Most parents want to eventually leave some or all of their assets to their children, yet in a second marriage most people also want to ensure that the surviving spouse remains financially stable. If you simply leave everything to your surviving spouse, there is a very good chance that your surviving spouse will not leave anything to YOUR children. A premarital agreement, along with using properly-established trusts, is the way to avoid this problem.
Even if you have already completed an estate plan of your own, a new marriage almost always calls for significant changes to your plan. A typical arrangement is that both spouses put their premarital assets into a trust. Upon the death of the first spouse, the assets of that spouse are held in trust for the use of the surviving spouse and then, upon the death of the surviving spouse, the remaining assets are distributed to the children of the spouse who died first.
Although both parties to a new marriage have the right to hire separate attorneys in connection with creation of a premarital agreement, many couples prefer to go through this process together, via mediation, in order to minimize the expense and avoid the adversarial nature of being represented by two separate attorneys. The advantages of having two separate attorneys is that both parties both receive completely independent, private, and confidential advice. By going through mediation in an effort to develop a written agreement and estate plan, you will be giving up these advantages. If you choose mediation, the purpose of the mediation will be to attempt to arrive, in a cooperative and informal manner, at a mutually acceptable agreement that resolves all financial and legal issues that may arise in connection with your upcoming marriage, your existing marriage, or your co-ownership of property.
If you aren’t able to complete your planning before you get married, you should consider a marital contract, also called a post-nuptial agreement. Like the premarital contract, a marital contract can be essential for remarried couples with children from different relationships.
I am a trained mediator and am available to mediate premarital and marital contracts with couples planning to enter into a second or subsequent marriages, with a goal of preparing the agreement and then doing the subsequent estate planning for the couple.
As far as estate planning suggestions for your situation, either a Revocable Living Trust (RLT) or The Living Trust PlusTM may be a good option, but it is difficult to assess without meeting you and your fiancé and discussing your situation in detail.
In a nutshell, a Revocable Living Trust will enable you and your fiancé to have full use of the trust income and principal for life. Upon death, the assets may continue to be held in trust or distributed for the benefit of the named beneficiaries. The Living Trust PlusTM functions very similarly to the RLT, but it protects your assets from the expenses and difficulties of probate PLUS lawsuits PLUS long-term care while you’re alive. You can read more about these and other estate planning strategies on The Fairfax Elder Law Firm of Evan H. Farr, P.C. website.
Please call us at 703-691-1888 to set up a time for a free consultation.
This week, March 3-9, is National Consumer Protection Week (NCPW), as proclaimed by President Obama in 2009. Consumer education helps keep seniors and all Americans informed while providing them with resources to explain their rights and protections. For seniors, NCPW is the perfect time to talk about some of the new rights and protections Americans have under the Affordable Care Act (ACA). We also encourage you to read our blog post about preventing Medicare fraud.
Rights and protections for seniors under the ACA:
- Senior consumers should know that due to the ACA, the Medicare Trust Fund is projected to remain solvent until 2029, a 12-year extension from previous estimates.
- Before the ACA was signed, Medicare’s future was dire and the Medicare Trust Fund was in danger of going bankrupt. In August 2010, the fund’s outlook improved substantially due to the legislation’s commitment to reduce waste, abuse and billing errors within the Medicare system.
- Seniors can receive screenings for conditions like colorectal cancer and breast cancer without a co-pay or a deductible fee.
- Under the ACA, new insurance plans will offer preventive care with no out-of-pocket costs. This benefit is also available to seniors on Medicare. Seniors should take advantage of the free preventative screenings to stay healthy and catch problems before they become serious.
- Beginning Oct. 1, 2013, you’ll be able to shop for health insurance and compare plans through the Health Insurance Marketplace in your state.
- Senior consumers will see up front what different plans are likely to cost them and have the opportunity to enroll in the plan that is right for them. Learn more here.
- The ACA gives you greater control over the care you receive and the information you need to evaluate your options.
- The ACA requires insurers to provide you with an easy-to-understand summary of your health plan’s benefits and coverage, including a glossary of insurance terms.
- The ACA prohibits insurance companies from denying you coverage because you are sick or have a pre-existing condition.
- New protections applicable to most plans beginning in 2014 will also prevent insurance companies from charging you more because of your gender or occupation. Read more.
- Insurance companies can no longer put a lifetime dollar limit on most of the benefits you receive and starting in 2014, insurers will be prohibited from imposing annual dollar limits.
- Insurance companies cannot raise your premium rates without accountability or transparency. The law requires insurance companies in every state to publicly provide easy-to-understand information to their customers about their reasons for significant rate increases, and any unreasonable rate increases are posted online. Since enacted, the number of requests for insurance premium increases of 10% or more has dropped dramatically, from 75% to 14%.
- Insurance companies need to meet the 80/20 rule, which requires them to generally spend 80 percent of premiums on health care (rather than CEO salaries and marketing) or provide rebates to their customers.
- Insurance companies that did not meet the 80/20 rule have provided nearly 13 million Americans with more than $1.1 billion in rebates. Americans receiving the rebate have benefited from an average rebate of $151 per household.
Many elements of the ACA protect consumers and make the health insurance market work better for seniors. Because of the ACA, more Americans than ever before will have access to quality health insurance they can afford. Read our Everything Elder Law blog post about the ACA.
We here at the Fairfax Elder Law Firm of Evan H. Farr, P.C. believe that senior consumers should have access to all of the information and consumer protections they need to make important decisions. One of the most important decisions you can make it to plan for your future and for your family. Call 703-691-1888 to make an appointment for a free consultation.
Q: I am the beneficiary on my father’s insurance policy. Does that give me the right to control his property?
My father is 86 years old and has dementia. He never had a Will and there are seven children who would just like the house to stay in the family without any one owner. I am the sole beneficiary on his life insurance policy, so I was just wondering, am I the one who would be in control of his estate?
A: The answer to your specific question is “no.” As the sole beneficiary on his life insurance policy, you do not have the right to control his property. Incapacity planning (Financial Power of Attorney and Advance Medical Directive) and testamentary documents (Last Will and Testament and/or Living Trust)need to be created and signed by your father to determine who will control his estate.
There is the question of whether or not your father is competent to sign documents or if he needs a guardian appointed to do so. The fact that your father has dementia does not necessarily mean that he does not have the required level of competence to sign incapacity planning documents and testamentary documents. If your father still recognizes all of his children, there’s a good chance he’s still competent to sign these documents.
The Financial Power of Attorney is an essential tool that every adult should have in the event that, due to age, illness, or injury, a person is unable to carry on his or her legal and financial affairs. Having a Financial Power of Attorney will generally avoid the need to go through the time consuming, expensive, and publicly embarrassing process whereby someone has to go to court to have a person declared mentally or physically incompetent and then have one or more persons need to be appointed to serve as your legal guardian and/or conservator, which living probate process is subject to ongoing lifetime court supervision.
A Health Care Power of Attorney (also called a Medical Power of Attorney or an Advance Medical Directive) would authorize one or more of your fathers kids (called his “Medical Agent(s)”), to make decisions with respect to his medical care in the event that he is physically or mentally unable to do so.
I suggest you and your siblings (and your father, if he is willing and able) have a family meeting to determine which of his children are going to take the lead in helping your father with his legal and financial and medical affairs by acting as your father’s agent(s). Your father’s wishes in this regard are paramount, but the willingness of the children to serve as agent(s) is also an important consideration. It is also essential that the kids chosen to act for your dad are financially stable and looking out for dad’s best interests, and not their own financial interests. After the family meeting, the children who are taking the lead should bring dad to the office of an experienced Elder Law Attorney, such as The Fairfax Elder Law Firm of Evan H. Farr, P.C. to (1) assess whether your dad is competent to sign the necessary documents and (2) prepare the necessary documents assuming your dad is competent. If his competence is questionable, the attorney may want a written opinion from a physician or other mental health professional to determine your dad’s competence before documents are prepared.
One of the main reasons to take your father to an experienced Elder Law Attorney rather than an Estate Planning or General Practice Attorney is that your father (given that he owns a house and possibly other assets) also needs to hire an Elder Law Attorney for Medicaid Asset Protection as he is likely to wind up in a nursing home and, if he does, his home will NOT be protected in Virginia and, depending on his income and other assets, may have to be sold to pay the nursing home. If dad’s goal is to keep the home in the family, this type of Asset Protection Planning is vital. The goal of Medicaid Asset Protection Planning would be to preserve the dignity and quality of life of your father, and to carry out his asset protection wishes to the extent those wishes are known. If you dad was a Veteran, then Veterans Pension Planning is another type of Asset Protection that is very important and again requires an experienced Elder Law Attorney.
To find an experienced Elder Law Attorney, you can visit the website of the National Elder Law Foundation (which lists all Certified Elder Law Attorneys in the country) or the website of the National Academy of Elder Law Attorneys (NAELA), which lists all Elder Law Attorneys. If going through NAELA, just be sure to check the background and experience of the attorney, because any licensed attorney – even those with no experience — can join NAELA.
- Evan H. Farr, CELA