Elder Care - Trust and Estate Planning Law Office

Exploring the Benefits of Home Attendants Over Nursing Homes

When it comes to the care of our loved ones, we want nothing but the best. The decision whether to choose a nursing home or opt for a home attendant is a crucial one, as the result can dictate your loved ones comfort and care for the upcoming years. Although nursing homes typically serve as the traditional route when debating on long term care, there is nothing comparable to the comfort your loved one will receive in their home as well as the one on one care that is tailored to their needs. In this article, we will analyze the many reasons why home attendants provide a transformative experience which prioritizes individual’s needs in the comfort of their own home.

Personalized Care and Individual Attention

Home attendants offer a level of personalized care that sets them apart from nursing homes. When individuals receive care at home, they benefit from one on one care with a caregiver that can focus exclusively on their needs. Unlike a nursing home where the staff to patient ratio is higher, home attendants have the opportunity to build strong connections to their patients and allow them to understand their unique routines and preferences of treatment. Home attendants can also offer constant assistance with tasks including bathing, dressing and meal preparations. The individualized attention given by home attendants allows for meaningful relationships, companionship and emotional support which establishes trust between the patient and caregiver while providing a sense of comfort to the patient as well.

Nursing Homes Are Extremely Expensive

In New York State, the average cost of a private room in a nursing home totals to $158,797 annually (American Council on Aging) in comparison to the average annual home attendant cost of $52,620 (SeniorCare). Nursing homes provide elderly care within a facility, which includes expenses related to maintaining and operating a residential establishment. With the expenses of utilities, staffing, and maintenance, the cost increases drastically. Nursing homes are also equipped to handle emergency medical situations which require round-the-clock medical personnel. Additionally, the cost of the living space such as rooms and bathrooms as well as meal plans, is included in the overall price. Home attendants on the other hand, provide medical care in the patients residence, therefore eliminating the additional facility expenses. Home attendants can be more flexible in terms of scheduling allowing for cost effective options based on an individual’s needs.

Familiar Surroundings

Home attendants offer a unique advantage by allowing patients to age in the comfort of their own home. This becomes particularly important for patients with dementia or Alzheimer's disease. These two conditions can cause memory loss and disorientation which makes it incredibly difficult for those individuals to adapt to new environments. Being in a familiar setting such as their home helps minimize the stress and anxiety of changing locations. Remaining in a recognizable space also helps to maintain daily routines which can be comforting for patients with memory loss. Allowing patients to age in their own home can enhance their quality of life and promotes familiarity during challenging times.

Increased flexibility and Family Involvement

Home attendants allow for much more family involvement and flexibility when it comes to treatment plans. By receiving care at home, families have more control over schedules and care provided. Home attendants are able accommodate specific preferences and routines and adapt to a patient's needs. Home attendants encourage family involvement as well by allowing families to actively participate in decision making and will also keep them informed about their loved one’s condition.

Comfort to the family

Home attendants can provide the family of a patient a higher level of comfort in comparison to nursing homes. Families can often take comfort in knowing that their loved one is in the hands of a trusted individual of their choosing. Knowing that they are receiving individual attention in the comfort of their own home can put their minds at ease. Additionally, with patients who are immunocompromised, it can be comforting knowing they are only exposed to one individual instead of living with a significant number of people.

Home attendants offer countless advantages that make them superior to nursing homes. The personalized care, individual attention, and comfort they provide to patients contribute to a higher quality of life and overall well-being to seniors. While seeking assistance with elder care needs, Attorney Inna Fershteyn can be a valuable resource to assist you in making the best choices suited for your family’s needs. With her expertise and knowledge in elder law and estate planning, Attorney Inna Fershteyn can guide your family through the legalities of elder care, ensuring that your loved ones receive the best possible treatment. Her dedication to serving the needs of seniors makes her an invaluable asset in navigating the challenges of eldercare. Ensure your loved ones are comfortable and provided for by calling the Trust and Estate Planning Office at (718) 333–2395.

How Can I Increase My Home Attendant Hours?

The process of applying for a home attendant requires many documents and a lot of patience when waiting for a response. Medicare typically provides home attendant assistance for a maximum of 28 hours per week, and in some cases, up to 35 hours per week. However, for many elderly individuals who are incapable of walking, cooking, and showering by themselves, around the clock attention is crucial. Oftentimes, the process of increasing home attendant hours is even more gruesome. Medicare will justify any reason against extending current hours and make the vulnerable individual’s life easier. In this article, the Trust and Estate planning office will explore ways to maximize the amount of home attendant hours so that you or a loved one can receive the care that suits your needs.

Understanding The Current Home Attendant System

To receive at-home medical care, the applicant needs to fit multiple criteria. Primarily, you will receive a physical assessment to determine whether or not you are eligible for the program as well as assess the amount of hours you will receive each week with a home attendant. A physician's recommendation is often required to support the need for a home attendant. In many cases, patients may receive less hours than they feel is necessary. In these cases, there are various ways to obtain additional home attendant hours. It is important to assess each option to determine which one works best for you.

What You Can do to Receive Additional Home Attendant Hours

Medicare advantage plans- A Medicare advantage plan, or Medicare part C, is an alternative way to obtain additional home attendant hours. These plans are offered by private insurance companies that are approved by Medicare. Depending on the plan that you chose, they will provide the benefits of Medicare as well as additional services and coverage. For example, if Medicare provided you with a limited number of home attendant hours, a Medicare advantage plan can cover the costs of additional hours if needed.
Medicaid waiver programs- Some states have implemented Medicaid waiver programs in which Medicaid and Medicare can work together to fulfill the needs of those who require additional support. This program will allow you to receive additional home attendant hours if eligible and allows individuals who require constant care to reside at home rather than a nursing facility. However, these programs have many eligibility requirements, including proof that you need an equivalent amount of care that you would receive in a nursing home. If you believe that you qualify for additional care, consulting with a knowledgeable and experienced attorney will assist you in applying to these programs.
Appeal the decision- If you disagree with the amount of home attendant hours Medicare has provided, it is in your best interest to file an appeal as soon as possible. Attorney Inna Fershteyn is an experienced and proficient attorney who will help you appeal a Medicare decision pertaining to your home attendant hours and provide you with additional care if you feel it is necessary. Consulting with an attorney regarding your appeal can relieve stress and increase your chances of approval. Additionally, if your home attendant hours were reduced by Medicare, appealing the decision can help restore your initial amount of hours.

In 2020, Attorney Inna Fershteyn was introduced to a case in which a client’s home

attendant hours were reduced substantially although the client required round-the-clock care. Attorney Inna Fershteyn helped this client win a fair hearing and ensured that their amount of care would be restored to the original amount of hours.

CDPAP- The Consumer Directed Personal Assistance Program is a Medicaid program which allows an individual to designate a family member to be a home attendant and get paid hourly in the process. Although Medicaid pays for up to sixty hours of care based on eligibility, home attendants may apply to get paid overtime which will compensate for additional services.
Request a physical reassessment- Before receiving a home attendant, a patient must undergo a physical examination to establish their eligibility and the extent of care necessary. A physical reassessment can reevaluate your necessity for additional care and can grant you extra home attendant hours.

How can I benefit from an attorney in this process?

If you or a relative feel that you need to increase your home attendant hours for any amount, but your claim has been unfairly denied, a Medicaid attorney will help. In fact, consulting with a knowledgeable attorney is the best approach to take in preparation for a fair hearing or challenging Medicare’s response. Inna Fershteyn has over 20 years of experience helping clients extend their home attendant hours. She will assist you by preparing a strong application for CDPAP, Medicaid waiver programs, or Medicare advantage plans. Most importantly, she will attend to your emotional needs through this long winded process. If you believe that you require additional home attendant hours and fit all of the requirements, yet your request has been unjustly denied, please contact the Trust and Estate Planning Office at (718) 333–2395.

What Are My Responsibilities As My Parent’s Guardian?

As parents reach their elderly years, sometimes people may find themselves in the position of being their parent’s guardian. Before obtaining guardianship for your parent (or parents), it can be helpful to know the responsibilities you will have to take on when you become a full-time guardian. Learning more about the possible incoming responsibilities can also help be a deciding factor for if you would rather take full responsibility of your parent or move them into a nursing home.

In some cases, you will be appointed to be a guardian if your parent:

Has dementia or Alzheimer’s
Has suffered from a stroke
Has cognitive issues
And a variety of other reasons

Oftentimes, it is common to seek guardianship of your parents after they have become somewhat incapacitated. It is easiest to be appointed guardian if both parties (you and your parent) are able to file notice with the court. The court takes into account age, mental/physical impairment, as well as the risk of harming themselves or others when considering guardianship. As long as your parent can display a reason for wanting guardianship, it is more likely that the court will grant the request.

So what will being your parent’s guardian actually look like?

After being appointed a guardian, there are some basic responsibilities to overlook:

Handling finances (such as paying bills, keeping financial records, etc.)
Consenting to medical treatment
Managing the estate and assets
Deciding on long-term care as well as end-of-life care

These responsibilities mentioned are just some of the many responsibilities that will eventually come to be. Being a guardian is a huge responsibility and takes a significant amount of time and energy. This position should only be done by someone who has the time and care for the parent. Remember, there are always other options for taking care of your elderly parent and that you don’t have to shoulder all the struggles on your own.

During your time as a guardian, you should always make sure that you are following your parent’s wishes to the best of your ability. If your parent still can, be sure to ask for their input and what they want. When choosing to be your parent’s guardian, you choose to give them the best life you can. Guardians are usually family and do not get compensated. For some people, being and taking care of their parent is more reassuring than leaving them in the care of a nursing home.

Being a guardian is not an easy job nor is it a role for everybody. In order for your elderly parent to live the best remaining life they possibly can, you can make the decision of if being their guardian will fulfill that or not. If you or a loved one is considering guardianship or options for elderly care, contact the Law Office of Inna Fershteyn at (718) 333-2395.

4 Reasons Why A 24-Hour Home Care Aid is Better Than An Assisted Living Facility

4 Reasons Why A 24-Hour Home Care Aid is Better Than An Assisted Living Facility

Elder care is often difficult and extensive and is different for every individual. One thing is clear - no one can or should do it alone. As our loved ones age and their needs change and very often escalate to around the clock care, we face the difficult decision - should we hire a live-in home care aid or should we resort to putting our loved ones into an assisted living facility and sometimes even a nursing home? But how do these options compare? Based on the vast experience of an elder law attorney in NY and based on visiting many different retirement facilities in NY, Medicaid funded nursing homes in NY, and assisted living facilities in NY, we compiled these top four reasons why a home care aid or a live-in caregiver is better than a nursing home or an assisted living facility.

Live-In Caregiver or Home Care Aid in NY:

Live-in care is a service provided by either a professional caregiving company, a private hire, and the role of a live-in caretaker requires them to live in the home of the care recipient. It is implied that room and board will be provided to the caregiver. Live-in caregivers are allowed to rest and sleep, and therefore should have a 5-8 hour sleeping time allotted in the care plan. It would be beneficial to align the caretaker and care recipient’s sleep schedules.

If you would like for there to be an active caregiver while the care recipient is asleep, overnight care and 24-hour care is also available. Overnight or 24-hour caretakers agree to and are paid to stay awake. 24-hour care is usually arranged by an agency so that the 24-hour period is split between multiple caregivers to ensure that the care recipient is never left unattended.

Whether it’s live-in care or 24-hour care, around-the-clock care provides safety and care to elderly in the comfort of their own home.

Assisted Living NY or Nursing Home NY facilities:

Assisted living is another option that may be more suitable for those who need more supervision. Assisted living facilities give the elderly personalized care in a residential setting and transfer the care recipient out of their home. Residents are typically assessed when they first move in, which allows the facility to make an individualized and specific service plan. Facilities often provide services like managing medication, assisting with bathroom use, and helping with dressing and grooming. Most facilities also provide meals, housekeeping, laundry, transportation, and social activities.

In contrast, NY nursing homes have trained medical staff that provide more medical help than help with everyday activities. Medicare and Medicaid accredit these facilities where they can provide both short-term rehabilitation and long-term medical care. NY Medicaid would cover the cost of such nursing homes, but if the person has assets, a 5 year look back provision exists. These facilities are recommended to those who need more intensive or specialized medical care.

4 Reasons a 24 Hour Home Care Aid or Live-In Home Attendant Is Better than a Nursing Home

Live-in caregivers can provide companionship and socialization to an elderly person that may be more recluse.
Families of the care recipient often find comfort knowing that a caregiver is in the home with their loved one at all times and has much less exposure to people who may be sick of Covid-1.9
It's much cheaper to have a live-in caregiver rather than paying for the Assisted living facility or a nursing home where cost can range up to $15,000 a month.
Seniors are a lot more comfortable in their own home especially if they have dementia or Altzeimer.

Cons of Live-in Care

Typically, live-in caregivers are privately hired so vetting people can be a long and arduous process. It depends on the caregiver’s background and qualifications as well as the needs of the care recipient.
Independent caregivers can create tax complications and arduous paperwork unless the caregiver services are covered by Home Care Aid medicaid.
It can be quite costly to maintain the home itself with property taxes, home repairs, and upkeep so an independent person is needed to take care of financial issues.
Hiring a live-in caregiver is largely dependent on trust which will take time to build. The responsibilities and demands of a live-in caregiver are intense and could potentially cause relationships to sour.

4 Benefits of Assisted Living Facility:

Assisted living can provide a healthy lifestyle and social activities fostering engagement.
It is a more economical choice compared to a nursing home.
Family members may feel less stressed or worried knowing that their loved one is in a safe environment that will provide excellent care.
Seniors can retain independence while getting back or exploring new hobbies. Without the responsibility of maintaining their home, they have more free time.

4 Detriments of NY Assisted living Facilites:

Depending on the facility, medical care may not be provided at all一especially for certain medical conditions.
Seniors may find it challenging to adapt to a new place, a group setting, and new policies.
Facilities could limit the senior’s privacy.
Assisted living facilities in NY are very expensive. The average cost of the facility is around $10,000 a month.

If you need Elder Care planning in NY and would like to speak to NY best Elder Law attorney and NY Asset Protection lawyer please contact our Trust and Estate Planning law office at 718-333-2395 for all of your elder planning needs.

The Importance of Creating an Asset Protection Plan

Asset protection planning is important for everyone, from all walks of life. If you have any money, investments, or property that you want to protect, if you own a business or are starting one, you need to make sure you have a solid plan in place to protect your personal assets. There are many different risks to your financial security, and your plan for asset protection needs to focus on the things that are most likely to impact your savings.

Why is Asset Protection Planning Important?

Asset protection planning will benefit you by keeping your property and money protected during your lifetime. It can also ensure that you can leave a legacy for your loved ones. There are many specific reasons why asset protection planning is important including:

The risk of incapacity: If you become incapacitated (ex: diagnosed with Alzheimer’s) you won’t be able to take care of your assets or manage your finances. Substantial losses could accrue unless you assign someone trusted and reliable to manage your assets. You should plan ahead and assure that you have chosen the right person to manage your assets in case you’re ever incapacitated. Incapacitation can be gradual (ie. dementia) but it can also happen suddenly (ie. falling comatose). It’s better to plan ahead and early; better be safe than sorry. A living trust and/or a power of attorney are useful legal tools that could be used to protect your assets in case of incapacity.
The risk of business losses: If you run your own business, you could face the risk of personal loss if your business goes bankrupt or if you or your business is sued. You don’t want your own personal home or other property to be lost because of business problems so you should explore legal methods to ensure your own assets are kept safe. Incorporating or forming a Limited Liability Company (LLC) could be an appropriate solution because, as long as you follow corporate rules, you will limit the risk of losing money invested in your business and limit the risk of losing personal assets.
The risk of going into a nursing home: As everyone ages, nursing homes are a common long-term care plan. However, the cost of a nursing home can be extremely costly and nursing homes are not covered by most types of insurance, including Medicare. Many people are forced to spend all of their money and even sell their property to pay for a nursing home if they need care. Once the money is spent, then Medicaid begins to pay. However, if you create an asset protection plan, you can prevent your property from being included when determining if you’re eligible for Medicaid so you can get nursing home costs covered without giving away or spending your assets.
Losses due to estate tax: When you pass away and leave your assets to heirs, estate taxes could be imposed which could significantly reduce the value of an inheritance. This is mainly a problem for people with larger estates. As of 2021, estate taxes are assessed only if an estate exceeds $5.93 million. But, people with farms or business assets that count as part of their estate could quickly reach this amount and an inheritance could be at risk if there isn’t enough money to pay the taxes on potentially inherited farmland or business assets.
The risks presented by your heirs: You should protect your money and property even after you are gone. You can structure an inheritance so it will not be lost or spent recklessly if heirs get divorced or go bankrupt. You can also opt for creating trusts like special needs trusts or spendthrift trusts to meet the specific needs of beneficiaries who will inherit your assets.

You work hard to amass money and property, and you deserve to protect what you have built so you can enjoy financial security in your old age and so you can make a difference by giving to people or causes you believe in after your death.

What Are Some Ways to Protect Assets?

1.) Trusts- Irrevocable, Revocable, Medicaid asset protection

Trusts are legal documents that establish legal transfers of your assets. There are many different types of trusts, each serving its own purpose. Three common types of trusts used to protect assets are irrevocable trusts, revocable trust, and Medicaid asset protection trust.

Irrevocable trusts are trusts that cannot be amended once created. Once it has been made, it cannot be changed or terminated without the permission of the grantor’s beneficiary. You also relinquish control of the trust’s assets and control is transferred to the trustee, the person who is legally responsible for managing the trust, and all changes/distributions are left to their judgment. There are many types of irrevocable trusts like asset protection trust, special needs trust, charitable trust, and Medicaid trust. The most common is asset protection trust because, in the event that a creditor files a lawsuit against you, the assets you transferred to the trust will no longer be considered yours.

Revocable trusts (aka living wills) are the opposite of irrevocable trusts. It lets you freely make changes to it up until you die. It allows you to keep control of your assets while you are alive as opposed to giving up control in an irrevocable trust. You can also use it to determine who will inherit your assets after you die. A revocable living trust is preferable to a will since it does not require probate and can be revoked or amended at any moment while you are still alive. Revocable living trusts actually provide little asset protection but are a great way to ensure that your estate avoids the probate procedure after you die.
Medicaid Asset Protection Trust sometimes called Pooled Income Trust, is a tool to protect your assets and allow people to qualify for Medicaid long-term care. A Medicaid Asset Protection Trust is a type of irrevocable trust so the transfer of assets into this kind of trust is considered a “gift.” To protect your assets, the trust has to be created 2.5 years before home care Medicaid is needed or 5 years before nursing home care is needed. This is because Medicaid inputs a look-back period when someone applies for Medicaid.

2.) LLCs

A limited liability company (LLC) is a legal status given to businesses. This establishment means the business will be its own legal entity and the owner(s) can be relieved of personal responsibility for their company’s debts or liabilities. An LLC will protect a business owner’s assets like bank accounts, properties, and cars in the event of a bankruptcy or other legal disputes. The owner’s assets cannot be viewed as the company’s assets.

3.) Retirement accounts

If you have a 401(k), you might want to consider moving some cash into it. Individual retirement accounts (IRAs) enjoy protection under federal law as long as they are ERISA-qualified (such as a 401(k)). ERISA-qualified generally means the retirement account is employer-sponsored so pensions would count too. Your IRA might have even more protection depending on your state’s laws. Retirement accounts are also useful to avoid the probate process so some of your possessions can directly pass to your heirs without being dictated in the will

How can an Elder Law Attorney help?

Asset protection planning is not just for wealthy people, it’s important for everyone. If you have any money, property, or investments that you want to protect, you should create a plan. Planning is also important when you are young, because you can protect more of your assets if you take action early.

To learn more about asset protection planning and discover what plan works best for you, contact the Law Office of Inna Fershteyn at (718)-333-2395 for highly qualified advice.

Can I Give My Assets Away To Qualify for Medicaid?

Many individuals are forced to consider applying for Medicaid for a host of reasons, all mainly to help alleviate the cost of medical care. Medicaid is a joint federal and state public health insurance program for people with low income. The program covers 1 in 5 Americans, many with intricate and expensive needs for medical care. Medicaid is the principal source of long-term care coverage for many Americans. The majority of Medicaid enrollees lack access to other affordable health insurance. Medicaid covers a broad array of health services and helps limit out-of-pocket costs.

There are many factors to consider when applying for Medicaid, and this is widely due to the eligibility requirements that Medicaid has. If an individual has too many assets, they won’t be able to qualify for Medicaid. However, there are many legal ways to move your assets, which can allow you or a loved one to be eligible for Medicaid.

1) What qualifications do you need to have to become eligible for Medicaid?

To be eligible for New York Medicaid, you have to be a resident of New York State, a U.S. national, citizen, permanent resident, or legal alien, in need of health care/insurance assistance, whose financial situation would be characterized as low income or very low income. You must also be one of the following:

Pregnant, or
Be responsible for a child 18 years of age or younger, or
Blind, or
Have a disability or a family member in your household with a disability, or
Be 65 years of age or older.

But the primary concern regarding Medicaid qualifications for many Americans is what is considered low income.

2) How does Medicaid know what assets you have?

When you are determining if you are eligible for Medicaid, the Department of Social Services (“DSS”) will evaluate the Medicaid applicant or recipient’s income and assets that actually or will potentially exist. However, only such income and/or assets that are actually found to be readily available to the applicant may be considered in determining eligibility for Medicaid. In 2021, an individual can have no more than $17,131 in income to be eligible for Medicaid.

Can I Give My Assets Away As A “Gift” To Qualify for Medicaid?

In general, while determining the Medicaid eligibility, any gifting of assets made by the applicant within the look-back period will render the person ineligible for Medicaid for a period of time. Currently, the look-back period is five (5) years prior to the date of application.

Everyday common gifts can be considered by this vague word, “gift.” For example, paying for your grandchildren’s college education or contributing to your local church can all be considered gifts for purposes of determining Medicaid. A common myth is that you are allowed to gift $17,131 each year without incurring a penalty for Medicaid eligibility purposes. But as the word myth suggests, this is incorrect. In 2021, the annual gift tax exclusion for federal gift tax purposes is $15,000. That means that you can open the phone book and give everyone in the phone book $15,000 this year without filing a gift tax return. However, federal tax law has nothing to do with Medicaid eligibility rules. If you are gifting $15,000 each year, those gifts will still be evaluated for Medicaid eligibility purposes.

When is a gift not a gift (or in Medicaid terms a “transfer”) for Medicaid eligibility purposes? New York State law states that a person will not be ineligible for Medicaid if they transferred assets unless it was transferred exclusively for a purpose other than Medicaid eligibility. Ok, that seems easy enough. For example, you obviously didn’t pay for your grandchildren’s college education because you were specifically trying to qualify for Medicaid. However, as a matter of policy, DSS has historically been reluctant to accept this argument from applicants who have made significant gifts of assets like paying thousands of dollars for college. The result is that many individuals are denied Medicaid eligibility despite making regular (and necessary) gifts during the look-back period. However, there have been instances where applicants successfully argued that gifts made during the lookback period were for purposes other than to qualify for Medicaid and therefore, eligible for Medicaid. While determining the applicant’s intention, the DSS will consider things such as the applicant’s physical and mental condition at the time of the gift, the applicant’s use of the gifted funds, and the applicant’s financial security. The DSS may also evaluate whether the applicant gifted their own funds or if they received the funds through inheritance or windfall. To add, the DSS may check to make sure how much time passed between the gifting and the applicant’s institutionalization and whether this applicant lived alone when they made the gifts. Finally, the DSS may review whether the applicant had considered institutionalized care when the gifts were made.

3) Do assets disqualify you from having Medicaid?

No, not necessarily. Having assets won’t automatically disqualify you from having Medicaid. For example, in New York, a single applicant who is blind, disabled, or 65 and older is allowed to retain $15,900 in liquid assets. And for married couples, asset limits vary by the state, the Medicaid program, and if one or both spouses are applying for Medicaid.

However, just because a senior’s assets exceed the general limits listed above it does not mean they are automatically ineligible for Medicaid. States implement different rules and resource limits, and an elder can create a personalized asset spend-down plan to meet their state’s eligibility criteria. States also have varying laws regarding trusts and how they are counted, or not counted, when determining Medicaid eligibility.

There are also many other guidelines for calculating income and figuring out one’s medical need for care and assistance. Also, different financial rules apply to married couples. It is recommended to familiarize yourself with these eligibility requirements early on in case you ever need to help an aging loved one apply for Medicaid (or file an application yourself).

4) How can an Elder Law Attorney help?

Given the economic environment, it is common for lawyers to encounter situations where applicants gift their children or grandchildren during the look-back period which makes the Medicaid application process more complicated. And in most cases, handling the application process without any professional assistance can result in a determination of ineligibility and even a costly Medicaid penalty period. The assistance of competent counsel practicing in the area of elder law is imperative. It is important to work with an experienced elder law attorney with Medicaid planning experience.

For further Medicaid planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice.

How Does A Medicaid Asset Protection Trust Work?

Today we are going to learn about what a Medicaid Asset Protection Trust is and how it works. We also going to discuss when it should be used, it’s benefits and how an elder law attorney can help you through the process.

What is a Medicaid Asset Protection Trust?

A Medicaid Asset Protection Trust, sometimes called Pooled Income Trust, is a tool to protect your assets and allow people to qualify for Medicaid long-term care.

When should a Medicaid Asset Protection Trust be used?

To protect your assets, the trust has to be created 2.5 years before home care Medicaid is needed or 5 years before nursing home care is needed. This is because Medicaid inputs a “look-back” period when someone applies for Medicaid. The reason a certain period of time has to pass before your assets are protected is that the transfer of assets into a Medicaid Asset Protection Trust is considered a “gift.” Medicaid also enforces strict income and asset guidelines. In order to qualify for Medicaid, you cannot have more than $2,000 of liquid assets. Liquid assets are assets that can be easily converted to cash in a short amount of time. Examples include cash, checking accounts, and saving accounts. Once you meet the guidelines, Medicaid looks into what happened to your assets which is why you need to prepare years beforehand. The applicant still has to report the existence of the Medicaid Asset Protection Trust – it is not hidden from the government in any way.

How Does a Medicaid Trust Work?

A Medicaid Asset Protection Trust is an irrevocable trust which means once it has been made, it cannot be changed or terminated without the permission of the grantor’s beneficiary. Assets placed in the trust are considered gifts to the beneficiaries, which protects the assets from Medicaid. In New York, an irrevocable trust can be revoked as long as the beneficiaries and the grantor consent to it. But, beware that once a Medicaid Asset Protection Trust is revoked, the assets are no longer protected by this trust.

The Grantor of a Medicaid Trust has to name someone other than themselves or their spouse as the Trustee. This means that the Grantor is giving up control. However, the Grantor still has the power to remove and change any trustee as well as the power to change the beneficiaries of the Trust. If the Grantor owns a home, they can maintain the right to live in that home rent-free for their entire life, and their spouse can do so too. This “life estate” lets the grantor continue to obtain any property tax exemptions.

The Grantor is not entitled to the principal of any assets placed in an Irrevocable Trust which means that they are not entitled to any of the property that can generate ordinary income.
However, they can receive all income (interest, dividends, rental income, etc.) that the Trust assets may generate. The Trustee’s role is to invest the assets held by the Trust. However, because the Grantor maintains some control over assets in the Medicaid Trust, it is considered a grantor trust, and they are still taxed on any income.

When an Irrevocable Trust is created, assets that the Grantor wants to protect will be retitled in the name of the Trust, which is known as “funding the trust.” Assets can include anything from a checking or brokerage account to property. However, Individual Retirement Accounts do not get retitled into the name of the Trust because they are already protected for Medicaid purposes by law – as long as the required minimum distribution is taken.

Usually, Grantors will place their home and some liquid assets in the trust and name a child as trustee then not think about it for years. Most trusts provide that after the death of one of the spouses, the income interest continues for the surviving spouse. Then, after the death of the remaining spouse, the assets are distributed to beneficiaries as they would be in a will.

What are the benefits?

The main benefit of a Medicaid Asset Protection Trust is the ability to receive Medicaid. In general, with trusts, you can protect your and your family’s assets and pass on any valuable assets, like property. Some other specific benefits have been mentioned above such as property tax exemptions, uninterrupted income, and the ability to still use the assets after the grantor’s death. Some other benefits include:
● Avoidance of probate court
● Maintenance of privacy
● Avoids the hassle of multi-state probate proceedings- in case trustees do not reside in the state that the grantor did
● Provides planning for mental disability- should the grantor ever not be sound of mind, they cannot amend the trust
● Keeps assets in the immediate family
● Keeps assets out of surviving children’s divorces
● Keeps money out of creditors’ reach

How can an elder law attorney help?

An elder law attorney can help you decide whether a Medicaid Asset Protection Trust is right for you. A host of factors goes into the decision, such as the client’s available funds, relationship with intended beneficiaries, and timing. It is important to meet with a knowledgeable and experienced elder law attorney to assess which plan best achieves your goals and relieves any of your concerns.

For further Medicaid planning, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive the most highly qualified legal advice.

How HIPAA Impacts Caring for Aging Patients

How HIPAA Impacts Caring for Aging Patients

It's critical to understand the implications of the Health Insurance Portability and Accountability Act (HIPAA) on caregiving if you have worries about an aging loved one's health and are active in their daily care.

What is HIPAA?

The Health Insurance Portability and Accountability Act, or commonly known “HIPAA,” has a significant impact on providing care for loved ones. This federal law was passed in 1996 to preserve the privacy of a patient’s medical information. It mandates that health care providers and insurers maintain medical information private and safe. Unless the patient gives explicit permission, this information cannot be shared. This gives people more control over their health information and the ability to regulate who has access to it.

Why Sign a HIPAA Authorization?

A senior can provide their caregiver access to essential information about their care by signing a HIPAA authorization form. A caregiver who has complete awareness of their loved one's medical and treatment history is in the best position to make quality care decisions in the future. There are two major factors to consider when allowing access to medical records. Caregivers should be able to communicate directly with a senior’s doctors to coordinate treatment and care between medical entities, and dispay medical bills on the senior’s behalf.

Without these clear approvals, a family caregiver's ability to properly act on behalf of a senior may be limited. Unless a family member has been nominated as a personal representative with a valid healthcare power of attorney (POA), the privacy rule prevents access to complete medical information.

If the person you are caring for has not already created and signed a POA form, it is a good idea to have them sign a HIPAA release and keep copies on hand. This will ensure that medical entities have no doubt that they are permitted to interact with you and any other family members to whom your loved one has provided permission.

Seniors should talk to their health-care providers about how to put it in writing that only certain persons are authorized to see their medical records. If this is a concern for you, you can also put it in writing that you do not want particular people to have access to your medical information.

For more information about providing high-quality care for senior loved ones or to discuss long-term care planning, please contact the Law Office of Inna Fershteyn at (718 ) 333-2395.

Understanding the Medicaid Look-Back Period and Penalty Period

If you need help with paying for healthcare costs and have low-income and limited resources, you might qualify for Medicaid. Medicaid is a federal and state program that offers medical and health coverage for people with low incomes and limited assets who otherwise cannot afford paying for health care. In order to be eligible you must meet strict financial eligibility requirements both during the application process and after you have qualified.

Financial Eligibility Requirements for Long-Term Care Medicaid

Many low-income seniors find that their countable assets and/or income exceed the Medicaid restrictions in their state. They must carefully reduce or "spend down" extra funds on things like medical expenditures, house improvements, a prepaid funeral plan, and so on in order to meet the financial requirements. Gifting—giving away money or assets for less than market value—is not permitted as part of a Medicaid spend-down strategy.

The Centers for Medicare and Medicaid Services (CMS) devised a system for analyzing all applicants' financial histories to prevent seniors from simply giving away all of their assets to family and friends and then depending on Medicaid to pay for their long-term care. The following sections review the ins and outs of the Medicaid look-back period, as well as what happens when a senior decides to transfer assets.

The Medicaid Look-Back Period

Medicaid only looks at applicants' previous financial information for a limited period of time. This is known as the Medicaid Look-Back Period. Each state's Medicaid program has slightly different eligibility standards, but most states look at all of a person's financial transactions five years back (60 months) from the date of their qualifying application for long-term care Medicaid benefits. (This timeframe is only 30 months in California.)

There is no difference between the number of gifts an applicant made and to whom the gifts were given during the Medicaid Look-Back Period—barring a few exceptions, which will be discussed later on. If a senior's money or assets changed hands for less than FMV in the five years leading up to their application date, they will incur a penalty period during which they are ineligible for Medicaid.

The Medicaid Penalty Period

If a senior files for Medicaid and is found to be otherwise eligible, but has gifted assets within the five-year look-back period, they will be prohibited from receiving benefits for a specified amount of months. This is known as the Medicaid Penalty Period and there is no limit to how long a penalty period can be.

For example, if you write a check to a family member for $14,000 and apply for Medicaid long-term care within five years of the date on the check, then Medicaid will delay covering the cost of your care because you could have used that money to pay for it yourself. The penalty period begins running on the date a senior applies for Medicaid coverage, not the date on which they gifted the money.

The length of the penalty period is determined by the total amount of assets gifted by the applicant and their state's specific "penalty divisor," which is the average monthly cost of a long-term care facility in that state. (The divisors may be the averaged daily expenses in some jurisdictions, and several states even employ divisors that are particular to nursing home costs in individual counties.) These figures are published annually by each state’s Medicaid program.

Who Pays During Medicaid Penalty Periods?

When a senior requires care but has spent down all of their assets (inadvertently) and is no longer covered, one might wonder who pays for their care. If a senior has gifted countable assets during the look-back period and needs nursing home care, they will have to pay for it out of pocket until the look-back period is over and the senior can apply for Medicaid without difficulty, or until the penalty period expires and they are eligible for coverage.

Exemptions and Exceptions to Medicaid Gifting Rules

Medicaid penalties do not apply to all gifts.

One exemption you may receive is a “child caregiver exemption” for transferring assets to a child who has taken care of you for at least two full years. For example, if your daughter's care allowed you to put off moving into a nursing home, then transferring your home into her name for less than fair market value would not be penalized. Even if a senior applies for Medicaid within five years after the transfer, the "child caregiver exemption" still applies.

Another exception to the rule is a gift (or the creation and funding of a trust) for a kid who is blind or disabled under the Social Security Administration's standards. No penalty will be imposed on such a gift, regardless of its size.

Finally, gifts between spouses are never subject to any penalties. There is no need to impose a penalty on such transactions because both spouses' entire assets are counted when one spouse applies for long-term care Medicaid.

Successfully applying for Medicaid is a complicated and difficult process, and is rarely something you do on your own. Mistakes can have long-term financial consequences for a family. If you or someone you know plans to apply for long-term care Medicaid, please contact the best elder lawyer who can guide you through the application process at the Law Office of Inna Fershteyn at (718) 333-2395.

3 Legal Documents Caregivers Need to Manage an Elder’s Healthcare

Laws tend to be very strict and there is not much flexibility when it pertains to a loved one’s healthcare. These laws involve who can make medical decisions, receive status updates, and be involved in conversations with medical professionals. Though these laws intend to keep confidential information private, they can be troublesome for those who are caregivers for their family. There are ways around this but the legal permissions must be established beforehand. If you wait until they are required, you will not be guaranteed the best outcome as they will be more effective if prepared in advance. Many families do not realize they require legal documents to take care of the ones they love, causing them a handful of stressful situations when they need to make medical decisions for a loved one but aren’t allowed to legally. This may lead to a situation where you are legally not allowed to make any medical decisions for them or even access their medical information. An option some individuals choose is going to court and petitioning for guardianship in order to allow them to be able to make these decisions. This all could be avoided if families work and prepare all the necessary documents in advance with an Elder Care attorney, so you aren’t stuck with the harder and more expensive option of petitioning for guardianship.

What Three Documents Are Needed?

HIPAA Authorization Form: This document which is short for the Health Information Portability and Accountability Act indicates the standards for keeping an individual’s medical information and all records private. This makes it illegal for any medical professional to release your medical information and records without it being at the request of the patient for which this form is used. This is a very important form, and all families should be in possession of it as HIPPA forms give authorization to doctors to keep specific family members informed of their loved one’s medical status. It is a simple form that is not hard to complete and a blank one should be available at most doctor’s offices for patients. Just let your loved one sign the form and this will provide you with access to all their healthcare information.
Power of Attorney: This document has many names, two of them being, medical power of attorney and health care proxy document. This document essentially allows an individual to designate a loved one or any one of their choosing to handle healthcare decisions on their behalf if they become unable to. With a HIPAA form, you are allowed to have access to an individual’s medical records and information, but with a power of attorney you are also designated to make medical and healthcare decisions on their behalf as well. When preparing this document though, the person granting this access must be in the right mind or this document can not be executed. This is to ensure the individual who needs the care is choosing a trusted individual that they believe will honor their wishes if they were to become incapacitated.
Advance Health Care Directive: This document is also known as a Living Will, and allows an individual to indicate their wishes for end-of-life care before any medical emergency. End-of-life decisions are extremely hard on families and a Living Will will help avoid the pain this brings to your loved ones and allows them to know what you would have wanted. This document can specify the treatments you want or do not want and other medical decisions. One of the most important parts of this document is for an individual to indicate if they want any form of resuscitation to occur if they stop breathing and if they agree to be put on a life support system if needed. These decisions are extremely difficult to make and should not be left for your family, as it will only make the situation harder when you can make it simple by preparing these documents in advance.

Preparation in Advance Is Necessary

It is extremely important for these documents to be prepared beforehand as they will be there if a medical crisis occurs in your loved one’s life. Once a healthcare emergency occurs, it will be too late to prepare these documents. Sitting down with your family and having a conversation about preparing these documents in case a situation may occur in the future, will spare you and your family from any unnecessary stress and uncertainty. Health is not guaranteed so all adults should discuss their wishes with their families while they still have their health.

How Can an Elder Attorney Help

Unfortunately, many families do not start to look into Elder Care planning until a medical crisis occurs. This is why this conversation should happen in advance in order to ensure this crucial step of Elder Care planning is in place and your loved ones are taken care of. Indicating your interests is the first step to take in your Elder Care planning journey. An Elder Care Attorney can help make this process easier and help you and your family stay informed of all your options to ensure your interests are met. An attorney will not only draft all these crucial documents but will help ensure these documents are accurate and legally binding. Having this conversation with your family is hard enough, so hiring an Elder Care attorney will allow you to create the best plan and guarantee you won’t have to worry if you or your family face a medical crisis. As a part of your Elder Care planning, an attorney will help with the HIPAA forms, drafting of the Power of Attorney, and drafting of the Living Will, so you and your family have the peace of mind that there is a plan in place in case of medical emergencies.

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.