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.   

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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

  1. Live-in caregivers can provide companionship and socialization to an elderly person that may be more recluse.
  2. 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
  3. 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.  
  4. Seniors are a lot more comfortable in their own home especially if they have dementia or Altzeimer. 

Cons of Live-in Care

  1. 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. 
  2. Independent caregivers can create tax complications and arduous paperwork unless the caregiver services are covered by Home Care Aid medicaid.  
  3. 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.
  4. 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:

  1. Assisted living can provide a healthy lifestyle and social activities fostering engagement.
  2. It is a more economical choice compared to a nursing home.
  3. Family members may feel less stressed or worried knowing that their loved one is in a safe environment that will provide excellent care.
  4. 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:

  1. Depending on the facility, medical care may not be provided at all一especially for certain medical conditions.
  2. Seniors may find it challenging to adapt to a new place, a group setting, and new policies.
  3. Facilities could limit the senior’s privacy.
  4. 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 creating an asset protection plan important

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.

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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.

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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. 

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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.

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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.

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

What Three Documents Are Needed?

  1. 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.
  2. 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.
  3. 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.

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. 

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

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 

  1. 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. 
  2. 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. 
  3. 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. 
  4. 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.

How Will a Personal Injury Settlement Impact My Social Security and Medicaid Benefits?

Dealing with an injury that hinders your ability to work is hard enough. Many seek Social Security benefits to help ease the difficulty in times where they are injured but the process is intricate and can come with many hardships in order to receive these benefits. If you were injured in an accident, you are now also able to file a personal injury lawsuit against the party responsible for the accident. This can hinder your benefits that were already difficult to receive and though a settlement may seem nice in a situation like this, you depend on your social security benefits more. Situations like these may seem troublesome but you can seek out the help of a personal injury attorney as well as an elder law attorney as this overlap of your benefits and injury can be complicated. The personal injury attorney can help with a lawsuit for the accident but an elder law attorney has in-depth knowledge of the Social Security benefits and what will affect these benefits so you are not put at risk of losing them.

How Will a Personal Injury Settlement Impact My Social Security and Medicaid Benefits?

How much liquid assets can you have for Medicaid and for SSI?

You may be worried about how much liquid assets you can have to be eligible for Medicaid and SSI which include cash, stocks, bonds, and CDs. In New York, In order to be eligible for Medicaid and SSI benefits, you can have up to $2,000 in liquid assets. If you have more, you won’t meet the requirements to receive these benefits, and if you are already receiving benefits, they may be compromised.This is something to keep in mind if you have Medicaid or SSI benefits and want to file for a personal injury lawsuit. Social Security doesn’t depend on work credits and is need-based so it depends on assets. If you receive a settlement for an accident, it can potentially put you over the asset threshold hindering your eligibility for your SSI benefits. It may seem unfair that your benefits may be suspended for receiving a no-fault settlement for your injury, but this is how the system works. These are a few things you should be aware of when deciding between a personal injury settlement or the benefits you need to meet ends meet.

2 Ways To Protect Your Settlement:

  1. A “spend down”: This option is when you spend a good amount of the settlement on resources that are exempt and needed for the benefit of the disabled recipient to ensure you are not over that asset threshold. This is a good option for those who want a simple way of using the settlement money but also helps them while ensuring they are still eligible for the benefits. Some exempt resources include household goods, personal effects, paying off your home mortgage, and paying off any existing debts. These are just a few items that are exempt from being counted as assets and your settlement fund can be used towards them to keep you under the asset threshold. 
  2. Set up a Special Needs Trust (SNT): This option is for those who don’t want to go through the trouble of spending the settlement fund but rather just set up a special needs trust. A special needs trust is a trust that is created for you to put your settlement money in and can be used for transportation, certain therapies, and nursing care without hindering your SSI or Medicaid benefits. This is good for those who want to use the funds to help recover from the accident without having to worry about their SSI benefits and Medicaid benefits being suspended, compromised or revoked. This trust can be set up with the help of an Elder Care attorney and will help make the process of protecting your settlement trouble-free. 

Both these options are great for those who are considering filing for a personal injury lawsuit, but do not want to risk losing their SSI and Medicaid benefits. You should make sure you proceed with either option that best fits your situation after obtaining a settlement for an accident when you are receiving these benefits. This will help reduce the risk of your benefits being suspended and protect your settlement. 

Speak with an Elder Law Attorney

An Elder Law attorney is informed of all current updates to the laws on Medicaid eligibility and SSI benefits eligibility. Unfortunately, Medicaid and SSI requirements can differ from state to state so it makes the process of applying and keeping your benefits even harder. An Elder Law attorney in your area will help simplify this process for you and advise you of all updates to the law and eligibility requirements creating fewer problems on this journey of Medicaid planning and other aspects surrounding Elder Law. Hiring an Elder Law attorney will also ensure that you're still eligible for your SSI and Medicaid benefits even if you plan on filing a personal injury lawsuit. Protecting your settlement will be a priority and an attorney will help you choose the right option to ensure you can still receive your settlement fund without hindering your benefit eligibility.

For further information on how a personal injury settlement may affect your Medicaid and SSI benefits please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in options to protect your settlement fund and help with any of your Elder law needs.

3 Important Elder Law Updates in 2021

When it comes to certain aspects of Elder Law, such as Medicaid or Long Term Care Planning and Asset Protection, laws are constantly changing. For that reason, it’s important to stay updated on any recent elder laws, as they may impact you. Read about 3 important elder law updates in 2021 that could impact you.

3 Important Elder Law Updates in 2021

3 Important Elder Law Updates in 2021: 

  1. Medicaid Lookback Period: Lookback periods vary from state to state. In New York, the law requires a 5 year lookback period on Medicaid Nursing Home Benefits. This means that transfers that were done during this period are reviewed by Medicaid and a penalty is measured if the asset transfer (or “gifts”) in that period was for less than the full consideration. The transfer rate in New York is $13,037, so you should consider this if you are planning on applying for Medicaid or if you already have Medicaid and are making asset transfers. The Governor has also redesigned the program to implement a 30-month look-back period on any uncompensated transfers for home care or community Medicaid that was supposed to go into effect on April 1, 2021, but has been pushed back to July 1, 2021. Once in effect, those who plan to apply for Medicaid and who already have Medicaid after July 1, 2021, must disclose all transfers going back to October 1, 2020. There are exemptions to this update though. If the transfer is or was made to a spouse or a disabled or blind child, Medicaid does not impose a penalty. Additionally, real estate transfers to a spouse, disabled or blind child, a family caretaker that resides in the home and cares for the loved one for at least 2 years, and a sibling with an equity interest in the estate that resides at the elderly’s home for at least 1 year have been expanded to be exempt from receiving a penalty under the new Elder Laws in New York. When considering applying for Medicaid Nursing Home benefits you should take into account that your transfers prior to and after you apply for coverage matter in regards to your eligibility. 
  2. Stimulus Check doesn’t impact Medicaid Eligibility: When assessing your eligibility for Medicaid, the COVID-19 pandemic may cross your mind and specifically the stimulus checks that were given out by the federal government. The three rounds of stimulus payments that were issued from March 2020-April 2021 have been considered to be exempt from Medicaid, SSI, and other need-based benefits. This means that the payments received from the stimulus checks do not count as countable income, and will not compromise your eligibility for any of the benefits named above. This new update gives those who plan to apply for Medicaid or who have Medicaid peace of mind that these payments will not affect their eligibility for their healthcare plan and their loved ones will continue to receive benefits without any issues. 
  3. The New Power of Attorney Form: A Power of Attorney (POA) is an important document you should have especially if you are a senior. This document allows you to appoint an individual to make decisions for you when you are unable to do so yourself. The Healthcare Power of Attorney deals with any and all medical decisions that will be made on your behalf by a representative of your choosing in the case that you become incapacitated. This form that was put into effect in 2010 in New York, was known to be complicated and long. Governor Cuomo has recently issued a new form of this Power of Attorney that is simpler and shorter. This new form will go into effect in June 2021 and will not impact those who already signed a power of attorney. This new POA document is different from the one currently in effect. The difference in the new Power of Attorney form is that it’s shorter in length and is simpler in the language that it uses, making it easier for people to understand. An individual who is physically incapable of signing, but is mentally in the right state of mind can appoint a trusted individual to sign the Power of Attorney on their behalf. Banks and Financial institutions that refuse to accept this new version of the Power of Attorney can face penalties and could be subject to legal fees. This new law is great for those who are looking to make decisions on behalf of their loved ones and provide them with the best care possible. If your concerned that your Healthcare Power of Attorney is not up to date, speak with an Elder Law Attorney.

What is Elder Law?

Elder Law is an area of law that relates to issues relevant to older people and their family members and loved ones. Elder law attorneys act as advocates for their elderly clients and can handle a variety of legal matters that affect elderly or disabled people. Some of these issues are related to long-term care planning, guardianship, retirement, estate planning, and Medicaid Planning, along with other important matters. Additionally, an experienced New York City Elder Care Attorney will be able to handle the sensitive and emotional needs of an elderly person, and therefore address complicated situations that concern their clients.

How Can an Elder Law Attorney Help? 

An Elder Law attorney is informed of all current updates to the laws on Medicaid eligibility and other aspects of Elder Law. Unfortunately, Medicaid laws constantly change as well as the requirements of your state so it makes the process of finding the best plan for your loved one even harder. An Elder Law attorney will help simplify this process for you and advise you of all updates to the law creating less problems on this journey of Medicaid planning. Hiring an Elder Law attorney will ensure that you're planning for your loved one’s care in a way that corresponds with the laws imposed by the state in which you reside, while also satisfying their wishes.

For further important updates on the Elder Laws in 2021 please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in receiving medical coverage to cover the cost of nursing home care and help with any of your Elder law needs.