Interactive Legal Blog

The Merging of Estate Planning and Elder Law

by Scott M. Solkoff, Esq.[1]

Two major pressures are moving the practices of Estate Planning and Elder Law together. The dominant pressure is one of demand. For most Americans, the greatest threat to their financial well-being is not taxes. It is the cost of incapacity and long-term care. Addressing these needs with the ethics and skills of an attorney are in high demand. The second pressure is the continuing erosion of value proposition. This second pressure is further broken down twofold: perceived commoditization and the reduced market for tax planning.

Those who routinely deal with high net-worth clients are largely insulated by these pressures. The very wealthy can bear the storm of incapacity and long-term care and they are more apt to understand the value of good lawyering relative to taxes. Given today’s large exemption amounts, however, only one-tenth of one percent of Americans are subject to federal estate, gift and generation-skipping tax exemptions.[2] Most Americans need a different approach, one that blends the Estate Planning and Elder Law toolboxes.[3]

Estate Planning Attorneys are therefore looking to diversify their practices, address prevalent problems and preserve or increase their income streams. Many are wedding Elder Law to their existing practices. Elder Law is among the fastest growing areas of law and has a great level of personal reward. For Estate Planning attorneys, it is also a relatively easy practice area to incorporate since Elder Law and traditional Estate Planning are not-too-distant cousins. This blog post explains the core practice components of an Elder Law practice and how to determine whether Elder Law is right for you.

Healthy Debate Shines Light on Automated Drafting

by Vanessa L. Kanaga, Esq.

A recent set of articles published in the February issue of Trusts & Estates discusses the pros and cons of using Document Assembly Systems (referred to in the articles as "DAS"). The articles are nicely presented as a Point/Counterpoint feature. In the first article (the "Point")[1], Jonathan G. Blattmachr[2] and Martin M. Shenkman[3] discuss the advantages of using DAS in an estate planning practice, ultimately reaching the conclusion that DAS are a must for estate planning attorneys, because they offer the consistency and efficiency needed to stay competitive in the market. In the “Counterpoint” article[4], Douglas J. Paul[5] warns of the dangers of using DAS in an estate planning practice, primarily focusing on the concern that attorneys will become overly reliant on DAS, rather than applying their own expertise in planning and drafting documents for clients.[6]

Certainly, it goes without saying that my colleagues and I appreciate and share the views expressed in the Blattmachr and Shenkman article. However, what may come as a surprise is the extent to which we respect and welcome the objections and concerns discussed in the Paul article. It may be tempting for those of us in the DAS business to sweep the counterpoint article under the rug, or argue that it reflects an outdated view that will be irrelevant in the near future. Yet, the truth is that Paul raises reasonable points that should be in the mind of any good attorney considering the use of DAS in practice. In fact, I venture to say that those of us in the industry are intimately familiar with the concerns raised in the Paul article, because we face them every day, in addressing the questions of prospective customers, and in the decisions we make regarding our systems and the documents within them. The Trusts & Estates articles shed light on these concerns, creating a welcome opportunity to address them in an open forum. In this post, I will discuss how the concerns raised by Paul, though valid, can be addressed by selecting the right system for your practice.

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. 

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.

Teresa Bush - Employee of the Quarter

Visit Teresa's bio, here. 

Avoiding the Accidental Estate Plan

By Teresa Bush

As estate planners, part of our job is making sure our clients’ desires – as far as who receives their property – are fulfilled.  Some clients know exactly what they want, and others need to be provided with options so that they can choose the who and the how.  But in every case, we also must help our clients to consider all possibilities, with respect to both the people and property involved. 

See-Through Trust Planning: Stretch, but Avoid Contortions

by Vanessa Kanaga

I would like to start this post with a potentially controversial statement:  When planning for qualified retirement plans and IRAs (which I will sometimes refer to as "retirement benefits"), achieving the longest "stretch-out" period for distributions is not always the most important goal.  I know this may be met with a certain amount of deserved skepticism, but I hope you will bear with me, and allow me to state my case.