Uncategorized - Trust and Estate Planning Law Office

Here are The Top 5 Things to Look For

Planning your estate is an easy means to alleviate the burden on your loved ones following your death. It is important to make sure your wishes are carried out, but as with everything, pre-paid funeral plans have risks attached. When looking for a pre-paid funeral plan, you must exercise the utmost care.

To be considerate of your family, you should not place the entire financial burden of planning your funeral on them. In an effort to relieve your family of this expense, you have the option to pay for your funeral in advance with a pre-paid funeral plan purchased through a funeral home. To make things easier for your family during an already difficult time, pre-paid funeral plans have the potential to act as a good way to spend money to reach the Medicaid qualification threshold.

Nevertheless, every year when funeral homes go out of business before the need for a funeral arises, consumers lose money. There may be no way to recover your funds if the funeral home mismanages them. Customers are not necessarily entitled to refunds if they change their minds, and some funeral homes sell policies requiring additional payments.

There are five important things for you to consider if you decide to go ahead with a pre-paid funeral plan.

1. Shop Around

Prices among funeral homes can vastly range, so checking a few different ones before deciding the one you want is a good idea. To promote transparency, the Federal Trade Commission’s Funeral Rule requires all funeral homes to supply customers with a general price list that details prices for all possible goods or services. This clause also stipulates the items consumers cannot be required to purchase and the types of misrepresentations that are prohibited.

2. Make Sure You Have a Reputable Funeral Home

Unfortunately, there have been cases of funeral providers taking advantage of customers. Be sure to select a funeral home with an established positive reputation.

3. Carefully Read the Contract

Before signing you must understand what exactly it is that you are agreeing to. For example, if you move, is this plan transferable? Does it cover funeral services? Will your estate be responsible for covering additional costs if prices rise? Is the plan cancellable and refundable?

4. Find Out Where the Money Goes

The plan should provide information on what the funeral home will do with your money. While some states have protections in place to make sure the money is safeguarded, others do not.

5. Ensure the Plan Won’t Affect Medicaid Benefits

If you are buying the policy as part of Medicaid Planning, you have to purchase an irrevocable plan. This commitment indicates that you cannot cancel it once it is bought.

Once you have purchased a plan, inform your family about your decision and where the documents are filled. If your family is not updated that you have selected a plan, the plan is useless.

If you want to look for the pre-paid funeral plan that works best for you, contact the Trust and Estate Law Office at (718) 333-2395

Should I Create a Life Estate or an Irrevocable Trust?

As you are getting older, Asset protection and Elder Law planning becomes relevant. As you are researching an optimal estate plan to preserve assets from nursing home bills, a life estate deed transfer may initially sound appealing. After all, a life estate deed is a legal means for transferring home ownership rights. However, there are downsides you must fully understand before making this commitment. Prior to making the decision of adopting a life estate, it is crucial to fully understand the risks.

Life estates are characterized by two or more people having ownership over a property for non-overlapping periods of time. These parties are the life tenant and the remainderman. The life tenant owns the life estate and has full control during their life. The remainderman has ownership interest upon the death of the life tenant.

In many circumstances, executing a life estate makes the most sense. It is useful for those looking to simplify estate planning and avoiding the probate process. The transfer of the property to the remainderman is automatic, providing convenience without the need for a will. For example, parents can easily pass homeownership to their children while possessing their property for their entire lives. This provides transparency to the beneficiaries and affirms the life tenant exactly what will happen to their property when they pass away.

Additionally, a life estate deed protects the property from a Medicaid lien and increases the tax basis. If eligible for Medicaid, the government may try to recover the costs of care from their estate once they pass away. A life estate protects the home from being included in the Medicaid recovery process.

Although a life estate may seem appealing, some caveats come with them. There are three main unfavorable aspects. If you consider these reasons as dealbreakers, a life estate will not work for your personal estate goals.

Real Estate Related Challenges

Upon establishing a life estate, obstacles will arise if you plan to sell or mortgage property. The remainderman must agree if you decide to borrow or sell against the property. Nevertheless, this can be solved with a Testamentary Power of Appointment in the Deed. This allows life tenants to change who receives their property by directing its disposition in their will. While it won’t sell the property, it gives the life tenant more leverage in negotiation over the remainderman. An alternative to this is the Nominee Realty Trust, where one or more children act as Trustees for all so that decisions must be followed on a majority vote.

Another obstacle is that if the property is sold, the remainderman is entitled to a portion of the profits equal to what their interest is determined to be at that time. It is also difficult to remove or change a name once it is on a real estate deed.

Legal Responsibility of Remainderman

The problems of the remainderman become your problem as well. If this individual is in any legal predicament, such as being sued, getting a divorce, owing taxes, or filing for bankruptcy, the interest in the home is not protected. However, while claims can be made against the property, nobody can kick you out for the duration of your lifespan.

Medicaid and State Assistance Disqualification

Giving away an interest in the property could result in disqualification from Medicaid assistance, should you need long-term care within five years of the transfer. To add on, that state could file a claim against the income portion of the payments it has made on your behalf. In this case, at least the portion of the proceeds allocated to your child would be protected.

Irrevocable Trust

Irrevocable trust is a much better alternative to protect your property from creditors including Medicaid liens and nursing home costs. For more information on irrevocable trust, please contact the Law Office of Inna Fershteyn at (718) 333-2395.

How to Prepare a Loved One for the Possibility of Dementia?

Everything in life isn’t guaranteed and a life, where the best for you and your loved ones is not ensured, is scary. Having a plan for when those unexpected times arise in your life is the best way to ensure you and your loved ones are taken care of. Those approaching their elder years should be one of the first to ensure these plans are in place. Events such as an accident, stroke, heart attack, or something as serious as dementia can be extremely troublesome without the best plan in place. Not only should you consider making plans for your own well-being but encourage your loved ones to do so as well. This will ensure that a designated individual will be able to step in when times like this may occur in your life.

Discussing Legal, Financial, and Health Care Planning With Loved Ones

Though having such a difficult conversation with the people you love may be uncomfortable, the end goal is for you and your family to ensure everyone is taken care of, no matter what obstacles life throws at you. If you wait until your loved one is incapacitated or needs a caregiver it will be extremely hard, legally and emotionally, to be able to care for them when they need you the most. If this occurs you would need to endure the lengthy and complex process of guardianship in order to be able to control a loved one’s medical care and finances. Why put you and your family through this process when you can make a plan beforehand.

Timing Is Extremely Important

Getting your Elder Care planning done in advance is crucial, as in order to be able to sign all the legal documents in the process, one must be physically and mentally able to. In instances such as Dementia, early diagnosis can still hinder an individual’s ability to make decisions. In some cases, a senior may still be able to sign legal documents but this all depends on the progression of the disease and circumstances differ. This actively demonstrates why it is important to plan earlier rather than later. Though it can be difficult to bring up these matters with a loved one, you should try to make it clear that you intend to protect them and ensure that all their assets and life are put in the best scenario possible.

Crucial Documents Needed for Elder Care Planning

Last Will and Testament: A last will and testament is the first step in any Elder Care planning and indicates your wishes when you pass. This document indicates what is done with your assets and ensures your interests are met. We never know when we may pass and this document makes sure not only your interests are met but your loved ones are taken care of when this happens.
Durable Power of Attorney for Health Care: This is a document that will allow an individual to designate a person to make any medical decisions for them if they become incapacitated or unable to. Some decisions include choosing health care providers, nursing care, treatment, and end-of-life care. This document allows the individual to obtain medical records on your behalf as well. This is ideal for anyone as health can change, especially as you continue to get older, and this document will make sure you are taken care of if things don’t go as planned. Those with Dementia are not guaranteed a specific time frame for how fast the disease will progress so having a Health Care Power of Attorney will give them and their loved ones peace of mind when their loved one can no longer make decisions for themselves.
Durable Power of Attorney for Finances: This is a document similar to the Power of Attorney for Health Care, and allows you to designate an individual to make financial decisions for you when you become unable to do so for yourself. Some decisions that can be made on your behalf with this document include managing investments, selling property, taxes, and paying bills. This document is needed, as not only will your estate and assets be protected, but your interests will also be met if you ever become incapacitated. Why let a disease like Dementia or a medical condition stop your family from making sure your assets are taken care of when you can plan ahead.
Living Will: A living will is a healthcare directive that is drafted in advance to indicate an individual’s wish for end-of-life care or a serious medical crisis. This will be a clear indication of what you want to be done in regards to treatment if you are unable to and if the situation is life-ending. This document contains the instructions for the medical Power of Attorney and is important in the Elder Care planning process as leaving decisions like this to your loved ones will cause an immense amount of pain and regret. Your loved ones will not be left wondering what you would have wanted, but instead, know exactly what you want.

Hiring an Elder Care Attorney

Elder Care planning is hard on families and may not be the desired conversation, but it’s definitely a crucial step to ensuring your loved ones and you are taken care of at all times. Sitting down and creating a plan for what will happen in times of illness or losses is the start of your Elder Care planning. An Elder Care attorney can help make this process easier and ensure all your interests are met in a professional and legally binding manner. An attorney will inform you of all your options, and ensure all documents are legally binding and accurate. Discussing Elder Care options is hard enough for you and your family that’s why hiring an Elder Care attorney will allow you the peace of mind that your plans are in place in times of hardship. An attorney will help with the drafting of your Last will and testament, Power of Attorneys, and Living will, so you are ensured the best care.

For further information on how to start your Elder Care planning please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in the drafting of legal documents and help with any of your Elder Care needs.

Applying for Medicaid: An Elder Law Attorney Can Help

Applying for Medicaid is quite a complex process, as the questions being asked within the application have great depth and implications for your future. The foundation system responsible for asking the questions that define your eligibility for Medicaid purposely selects specific diction and word choice which may make it challenging for elderly individuals to effectively answer the questions. Considering that these questions are the main defining factor when it comes to obtaining Medicaid coverage, family members should seek guidance from an experienced Elder Law Attorney to guide them through this imperative process. The attorney is quite familiar with your state’s rules when it comes to long-term care planning and receiving government benefits.The Elder Care Attorney will use her experience in the field to devise the most effective plan in assisting the family by selecting strategies that align with the family’s personal and financial circumstances.

What are some of the advantages in hiring an Elder Care Attorney when Applying for Medicaid?

Advantage #1:Avoiding Penalties

There are numerous benefits in hiring an esteemed Elder Care Attorney, as the lawyer has much experience in the field and will be able to answer all of your questions concerning the Medicaid application process. Hiring an attorney guarantees that you will be able to avoid Medicaid penalties, which are very common in individuals who attempt to complete the Medicaid application without the aid of an attorney. There are numerous questions that seek to identify if the applicant has made any disqualifying transfers that would result in a penalty. The most common question that correlates to the Medicaid penalty prospect is the prompt asking if the applicant has made any gifts or transfers for less than fair market value within the last 5 years. If you hire an Elder Care Attorney, the lawyer will ensure that you do not have any penalties that would prevent you from obtaining the Medicaid benefits you deserve. The attorney will be well aware of any of the exceptions that will prevent you from earning a penalty and will therefore assist you in the process of qualifying for Medicaid. Hiring an Elder Care Attorney enhances the probability that your application is approved, therefore increasing your chances of obtaining Medicaid coverage.

Advantage #2: Effective Spend-Down Process Plans

In order to qualify for Medicaid many married couples must participate in the Spend-Down process, which pertains to the prospects of saving assets when only one spouse needs Medicaid. The purpose of this process is to ensure that the individual in need of long-term care receives the aid they need, while also guaranteeing that their spouse has the financial means of remaining in their home and covering the cost of all their living expenses. An Elder Care Attorney may assist in creating a personal care agreement that enables the senior to provide monetary compensation towards their family caregiver, while also participating in the Spend-Down process. Additionally, the attorney can aid in renaming bank accounts and real estate titles in the effort to enhance the applicant’s eligibility for Medicaid. In order to receive Medicaid long-term care benefits the spouse inhabiting the nursing home may have up to $2,000 while the community spouse may have up to $128,640 according to 2020 data.Therefore, hiring an esteemed Elder Care Attorney can assist you in the Medicaid Planning process associated with qualifying for Medicaid coverage.

What is the Medicaid Lookback Period and how does it impact my Eligibility for coverage?

A Medicaid Lookback is imperative in relation to Financial Eligibility for Medicaid. This means that if a lookback is required for a specific service, then the medicaid applicant is required to present all financial records pertaining to the applicant and their spouse during the lookback period. The typical lookback period for nursing homes is estimated to be around 5 years. The Human Resource Administration (HRA) is responsible for reviewing the lookback documents and checking the transfer of assets, especially in identifying transfers for less than the fair market value by the applicant or spouse during this period. Based on current NY State laws, nursing homes are required to do a lookback to admit applicants for care. The lookback will be required for people who are in the Medicaid Buy-In for Working People with Disabilities. Applicants who have an income that is below the income bracket of $895 as a single individual or $1304 for a couple will not be required to partake in the lookback process. It is important that you avoid giving away or selling assets below the fair market price, as this could jeopardize your eligibility for Medicaid coverage. The Elder Care Attorney must be fully aware of all the transactions made during this 5 year period to ensure that you avoid any penalties that would delay the rate at which you would qualify for coverage.

What procedure will the Elder Care Attorney follow when assisting me in the Medicaid eligibility process?

When consulting an Elder Care Attorney for the purpose of Medicaid Planning, the attorney will begin by asking you about your assets and income. In order to effectively decide when is the best moment to apply for Medicaid coverage, the attorney must be aware of your personal financial situation. The attorney will ask you how your home, bank accounts, and other assets are titled. You will be asked to state all of the transfers you have made within the last 5 years in the effort to create a plan that avoids the often lengthy Spend-Down process. Although hiring an Elder Care attorney can be quite costly, it is certainly worth the price. The attorney will provide guidance in the process of filling out all of the paperwork, as well as outline the next steps when filling out the Medicaid eligibility application. It is imperative that you do not wait until Medicaid coverage becomes an urgent matter, for it will be extremely challenging to obtain financial aid in such a short time period. This process is quite lengthy and requires planning to guarantee the best outcome, thus it is encouraged that you initiate the Medicaid Planning process as soon as possible and select an attorney you trust.

For further Medicaid eligibility information please contact the Law Office of Inna Fershteyn at 718-333-2395 to effectively complete the Medicaid Application.