On January 23, 2015 the VA published a proposed regulation in the federal register announcing a number of changes to its administration of the special improved pension plan, commonly but mistakenly known as “aid and attendance.” While a number of the changes are a welcome effort to bring clarity to the often mysterious eligibility policies of the VA, perhaps the most worrisome is the imposition of a three year look back on asset transfers. The VA is reacting to a GAO report that found over 200 organizations, that market primarily financial planning services, helping otherwise ineligible veterans obtain the pension benefit. The propose rule would apply a penalty period on transfers to purchase annuities and trusts to qualify for the benefit. The proposed rule means that if an unwary vet transfers a portion of his net worth to family or to purchase an annuity to qualify for benefits, the vet may be barred from the benefit for as long as 10 years!
The proposed regulations and commentary is found at https://www.federalregister.gov/articles/2015/01/23/2015-00297/net-worth-asset-transfers-and-income-exclusions-for-needs-based-benefits?utm_campaign=subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov Comment period closes March 24, 2015.
On August 20th the Department of Human Services (DHS) sent out a memo stating it was no longer recognizing the community spouse “sole benefit trusts” (also known as “trusts solely for the benefit of”). For the past 15 years the Michigan Medicaid program has recognized that assets are not counted if they are in a trust created solely for the benefit of the community spouse of a long term care Medicaid spouse. This has allowed the spouse of a nursing home resident to keep more savings for his or her later years instead of being required to spend it on the nursing home. Without formal policy change or a period for public comment the Department has arbitrarily reinterpreted its rule concerning these trusts.
The new “interpretation” is invalid on its face. It relies on one paragraph of the current policy and ignores the rest that support the sole benefit trust provision. The new “interpretation” violates the Michigan Administrative Procedures Act and the Michigan Constitution that directs that government must provide fair and just treatment to its applicants. Arbitrary reinterpretations of rules are exactly what our Constitution prohibit. In addition the Michigan department is violating provisions of the federal Medicaid law, which the Michigan program is supposed to be in compliance with. A court challenge will be filed in federal court in the near future.
Until then seniors are at even greater risk of poverty by the hand of the Attorney General Schuette and the Snyder administration. Stay tuned for developments as they come in.
Looking for a nursing home? This is something you will really appreciate. Check out our newest service: a handy map of nursing homes in the Metro-Detroit area, with Medicare ratings! Click here for map.
Who do we help? We help elders retain independence and control in the face of the challenges of aging, be that temporary incapacity due to a medical condition or long term care. We help aging parents authorize their children to manage their business and medical affairs. We help spouses and families choose a good nursing home and pay for it without going broke.
Here are some examples: We help Children of Aging Parents with the advice and legal documents they need to carry out their parents’ wishes and take care of their needs. We help child or relative Caregivers navigate the legal maze and legal problems including prosecution for vulnerable adult abuse. We help families to get a good nursing home, apply for Medicaid for long term care and keep a lifetime of savings. Look around our website and you will find a wealth of useful information. We will be pleased to help you out. Just call for an appointment.
We had a Great! couple of programs concerning Alzheimer’s Disease covering medical, legal and practical subjects. It was a pleasure to work with Doctors LeMere and Dannette Taylor and the Alzheimer’s Association. For more information on the Alzheimer’s Education Program click here.
We have had these Alzheimer’s Educational programs before and there is one continuing lesson I want to share with you. I offered to review any attendee’s “estate planning” documents from the Elder Law point of view. The distinction is that elder law focuses on life issues and so we call it “life planning.” “Estate planning” is about “death and taxes.” I analogize the difference to a life guard. The “death and taxes” lifeguard will help you after you have drowned. The Elder Law lifeguard will help you while you are struggling. You don’t need both. 99% of us folks don’t need to worry about taxes after death. And, of course, an Elder Law focused life plan must, and does, include a will or a trust to carry out your wishes for property distribution after you die.
Many folks have taken me up on the offer to review their existing “estate planning’ documents. I focused on their trusts and powers of attorney. In every case the documents did not grant complete authority to take care of all matters of the client. I had the following report:
They were all inadequate.
What did that mean? That failing could force anybody into life-long probate – guardian or conservator. And that means that the probate court is in charge of every facet of your life. Where you will live, what medical treatment you will receive is all under the control of the guardian. All your finances will be in the public record. The conservator will file and inventory of your property and will file an account every year. The account will detail every dollar that you got and every expenditure that was made on you. Attorneys fees for the public hearings may run into the thousands of dollars.
I’ll give you a practical example: if a husband is in a nursing home his wife may have to spend over $50,000 in nursing home bills and attorney fees before the probate court will give her permission to withdraw from his IRA. And, on top of that, the court may open a conservator file and put all of his assets under probate supervision till he dies.
All of that is easily avoidable.
All you have to do is have your legal documents tailored to fit your needs. You can be in control even when you must rely upon others to help you. So if you are at all concerned about aging and your long term care needs, just give us a call and let’s get your protection started!
See our Aging Parents Tip Sheet filled with information to make you an empowered advocate and help you avoid expensive mistakes.More Here”
Be sure to check Jim Schuster’s speaking schedule and how to request Jim Schuster to speak to your group.