Interactive Legal Blog

Geriatric Care Management: An Untapped Resource for Elder Law Attorneys

by Jennifer Traglia, Gerontologist

It’s been two weeks since you last spoke to Jack. His mother, your client, has just fallen – again. This time it sounds serious. As far as you know, she is still in the hospital, with a long road of rehab ahead. Naturally, as a trusted family attorney, you feel responsible.

What will happen to the house? Will she move, or will her only son (who lives 900 miles away) set up in-home care? Surely, Jack will need to take more time off work to sort this out. If only there were a resource or professional to handle all of this…

A New Age of Aging

The statistics of our aging population are astounding. Nearly 10,000 baby boomers are turning 65 each day! The “oldest old,” those 85 and above, have more health care needs than any other age group and are proportionately the fasted growing segment of the aging population. The medical community is not the only service segment struggling to keep up with these growing demands. Due to established long-term client relationships some attorneys also see things reaching a boiling point. Estate planning and elder law firms are feeling the effects of the aging population and are increasingly being asked to act as frontline service coordinators.

New VA Regulations for Aid & Attendance (Part 1): Finally! VA Releases Regulations for Needs-Based Benefits

The first article in a series reviewing the Impact of the NEW VA Regulations on Aid & Attendance

By Elizabeth Q. Boehmcke, Esq.

In January 2015, the Department of Veterans Affairs (the "VA") published proposed regulations amending eligibility requirements for its needs-based programs, including the veteran's aid and attendance pension benefit for veterans and their surviving spouses (referred to herein as the "Aid & Attendance pension benefit"). The VA reports that it received over 850 comments to the proposed regulations during the public comment period, which ended in late March 2015. Since then we have been waiting to learn to what extent the VA would make changes to those proposed regulations, unsure whether the final regulations would impact clients' applications that were in process when the final regulations were finally published. The final regulations were published on September 18, and are effective as of October 18, 2018. For professionals who work with veterans, their surviving spouses and families, the final regulations bring significant changes to the considerations that bear on their planning for such individuals.

The final regulations made major changes in three areas that will impact planning for the Aid & Attendance pension benefit: the calculation of net worth, an expansion of the types of expenses which can be taken as unreimbursed medical deductions from income, and the imposition of a three-year look back period for certain transfers, and penalties for such transfers. I will discuss each change in detail over the course of three installments. It should be noted that some changes to the proposed regulations may well be very favorable for claimants notwithstanding the new penalty for certain transfers. This post will concentrate on the new net worth regulations, because the transfer rules really cannot be understood without first comprehending the net worth rules. (Unless otherwise noted, all section references are to 38 C.F.R., Part 3.)

How the Elder Law Attorney Can Help the Personal Injury Attorney

By Joanne Marcus, MSW, and Karen Dunivan Konvicka, Esq., Commonwealth Community Trust



This article was originally published in "NAELA News."  The opinions expressed in this article are those of the authors and are not to be construed as an endorsement by NAELA or InterActive Legal.

When the call comes from the plaintiff’s attorney asking what should be done about the client’s public benefits, be prepared to answer. The case is about to settle, or the verdict is in, and now the client wants to know how will it affect his or her benefits. First, you will likely have to help the personal injury (PI) attorney assess the type or types of benefits the client is receiving and determine if the settlement puts the benefits in jeopardy. How did the client receive these benefits — through means-testing or due to work history? Perhaps the PI attorney has not considered benefits, but understands that the client is incapacitated and will need the assets managed; or perhaps public benefits may be necessary in the future.

Medicaid, the means-tested public benefit for people with disabilities who are also impoverished, will need to be protected. More than $2,000 in resources and the client will lose this valuable benefit; personal injury proceeds are plainly resources. Medicare, the benefit received by workers with disabilities who have earned enough quarters to qualify for disability benefits, may also need to be protected as well. In addition, Supplemental Security Income (SSI) and Social Security Disability Income (SSDI) need to be considered. Both of these benefits provide a monthly income to people with disabilities. SSI is means-tested, just as Medicaid is, but SSDI, like Medicare, is not; therefore, SSI income will need to be considered when planning. 

The Cobbler's Children

By Teresa L. Bush, Esq., Director of Education and Support Services, InterActive Legal

My great-grandfather emigrated to the USA as a teenager from a country that no longer exists, and was a cobbler by trade. I treasure his two iron shoe stands passed down to me, because they are symbols of one man’s hard work that laid the foundation for generations of descendants. But they also bring to mind the old saying about the cobbler’s children having no shoes.

I have no reason to think that my grandmother didn’t have shoes, but I will confess that I, as an estate planner, spent several years without an adequate estate plan of my own. It makes me wonder how many of my colleagues are in the same boat. As estate planners, we should arguably have the most up-to-date and well thought-out estate plans. If the law changes, we should change our own plans first (if necessary), and then we are better equipped to help our clients. Perhaps it’s a bit like putting on your own oxygen mask first, before you help other passengers.

Waivers, Penalty Periods, and the 5 Year Lookback

Letha Sgritta McDowell, CELA, InterActive Legal

On April 17, 2018, the acting director of the Centers for Medicare and Medicaid Services issued a policy clarification to all state Medicaid Directors regarding the imposition of penalty periods for individuals requesting Home and Community Based Services. The reaction to this guidance is mixed. In some states this clarification may be beneficial to many hoping to receive services in their home, while in others, this clarification may result in further delays in obtaining home services.

Individuals requesting Medicaid assistance with the payment of their nursing care expenses must meet certain eligibility criteria, both financial and non-financial, before Medicaid will begin assistance. The non-financial criteria include US Citizenship or lawful permanent resident status, state residency, and a demonstrated need for a certain level of care. The financial criteria include meeting certain income requirements and having minimal countable assets (there is no limit on non-countable assets). In addition, if an applicant or their spouse has made any uncompensated transfers, then Medicaid will impose a penalty based on the asset transfer.

Watch Your Language – Irregardless of Trends

Vanessa L. Kanaga, InterActive Legal

 
If you are like most of my colleagues, the title of this piece had you grinding your teeth.  In the hopes that you might consider me a credible source and continue reading, allow me to state that I know the term "irregardless" is generally considered incorrect, convention saying that the correct term, "regardless," sufficiently conveys the same meaning.  I recently shocked CEO, Mike Graham, by telling him that irregardless is now acceptable.  Well, admittedly, I did not actually say that it is acceptable, but that I had been reading a book, Words on the Move, in which the author, John McWhorter, makes the case (and I am paraphrasing) that the English language is constantly changing, and words like irregardless may eventually make their way into the realm of acceptable speech, even in formal settings.  His point (again, in my words) is that the function of language is to communicate, and the words we use should be judged on their ability to serve that function; if they enable us to understand each other clearly, then we have no other reason to judge any particular word as "good," "bad," "right," or "wrong."  (For a much more in-depth and intelligent discussion of Words on the Move, please see this New York Times review by another writer whose work I greatly appreciate, Lynne Truss).

Keeping Your Digital Vault Complete, Correct & Current

Betsy Ehrenberg, CEO and founder of Legacy Concierge

 

With over 2.6 million deaths in the U.S. each year, family offices, wealth managers, loved ones and attorneys are often not prepared to effectively erase an electronic footprint and secure digital assets of the deceased.

Digital vaults are available from insurance companies, software providers, national banks, law firms and determined individuals using home-designed spreadsheets or password lists. Regardless of source or sophistication, users should be aware when a secure digital vault can create more problems than it was intended to solve.

First problem, is the vault complete? One easy way to determine if all needed information is in the vault is to imagine who will have access, what they are looking for and why its contents will be used. Generally, persons who need to access vault materials include spouse, sibling, child and/or attorney. Additionally, the vault builder or owner might need to use items in the vault to obtain user names and passwords. Given its many users and uses, it is vital that stored information should be easy to read and understand.

Not Just Lonely Words on a Page, but REAL People Making REAL Differences

Sally Chung, CFP, ChFC, JD, Elder Law Planning® subscriber, bestows a “basket of thanks” upon InterActive Legal’s Teresa Bush

 

Recently, InterActive Legal Director of Education and Support Services, Teresa Bush, received a sincere and generous “Thank You” from subscriber Sally Chung, who migrated over from a competitor in the Elder Law document drafting arena.

Ms. Chung had requested additional assistance in document selection and interviews within the ILS drafting suite. Teresa went above and beyond in assisting Ms. Chung with the transition from her old system to the more robust drafting system offered by InterActive Legal.

Rock-steady guidance and leadership from Teresa was rewarded in the form of a super-sized gourmet gift basket, sent virtually across the country, from our new subscriber.

We’re proud Teresa is one of our cornerstones. Rock on Teresa!

Have you Met Clayton?

Teresa Bush, JD., InterActive Legal

A television show in the early 2000's had a frequently-used bit where a popular guy would introduce his somewhat shy friend to women at the neighborhood bar with the quick line “Have you met Ted?”  It’s likely that the women otherwise never would have had the opportunity to meet Ted, as he was a bit of a wallflower.  I feel the same way about the Clayton QTIP.

Before joining InterActive Legal (ILS) in 2007, I practiced estate planning law for sixteen years, and I never once drafted a document using a Clayton QTIP.  Nor, to my knowledge, did any of the attorneys with whom I practiced.  Honestly, we didn’t pay much attention to the Clayton decision back then.  Only when I began working with ILS documents did I learn what a great option the Clayton QTIP can be for flexibility in estate planning, as an alternative – or in addition to – a disclaimer plan.  Had I not started working with ILS, I probably never would have taken the opportunity to understand this planning tool.

Are you already an Elder Lawyer?

Some attorneys feel that Elder Law and Estate Planning are distinct disciplines, and that a focus on one or the other for each individual client is critical.  Others are of the opinion that Elder Law is really just good Estate Planning.  Said another way, Estate Planning itself is already the type of asset protection engaged in by Elder Law practitioners, so Estate Planners are ideally positioned to serve Elder Law clients as well.  But which theory is correct?

In this live roundtable, our panelists will discuss the overlap between traditional Estate Planning and Elder Law asset protection planning.