The Serious Consequences of Not Legally Protecting Your Home and Life Savings

Special Report for Seniors and Their Families:

The Serious Consequences of Not Legally Protecting Your Home and Life Savings

Our firm’s sole focus is helping seniors and disabled persons with the specialized legal services they need. Whether you or an older family member suffered a sudden life-changing illness, or you’re healthy but are concerned about the possibility of future nursing home care, we help protect our clients’ hard-earned assets from the high costs of long-term care. Some people call these specialized legal services “Elder Law”; at Cohen & Oalican we call these services Senior Asset Protection Planning.

Our attorneys offer clients more than fifty combined years of Senior Asset Protection experience and are well represented—both on the board and as members—of the Massachusetts Chapter of the National Academy of Elder Law Attorneys.

Introduction

Nobody wants to think about the possibility of entering a nursing home or what will happen to their assets when they die. These events are tough to consider, never mind try to plan for. But the truth is, when you ignore these issues, you are putting your spouse’s financial security, your life savings, your home, and your children’s inheritance at risk.

To keep your hard-earned savings, home, and other assets in your family, there are legal steps you must take with an expert Senior Asset Protection Attorney or “Elder Law” attorney. But, if you don’t have the proper asset protection guidance, these may be some of the consequences.

 

Simply put, the stakes are high. If you submit a Medicaid application without proper legal guidance, you could be forced to unnecessarily spend down your life savings.

What if you think you must be poor in order to qualify for Medicaid nursing home benefits?

Some people believe you need to spend your life savings on nursing home care before you are eligible for Medicaid—and that is simply not true. According to a recent national study of long-term care costs, 65% of nursing home patients have Medicaid as their primary payer.* Most married middle-class seniors who have accumulated savings and own property are eligible for Medicaid benefits.

You owe it to yourself, your spouse, and your family to obtain the highest possible level of Medicaid coverage to protect all that you’ve worked for. Be smart when it comes to applying for Medicaid, and seek the assistance of a Senior Asset Protection Attorney who is an expert in Medicaid Law

What if you complete a Medicaid application without proper legal guidance?

There are people, perhaps even former Medicaid employees, who appear to be qualified to help fill out your Medicaid application. In addition, some nursing homes offer assistance with the Medicaid application, but it is important to note that neither group has the experience or legal expertise to protect your valuable assets under the Medicaid rules. Because tens or hundreds of thousands of your dollars are at risk, you should only submit a Medicaid application with assistance from a qualified Senior Asset Protection Attorney. Simply put, the stakes are high. If you submit an application on your own or without proper legal guidance, you could be forced unnecessarily to spend down your life savings, sell your home, and leave your spouse and heirs with little or no financial support or legacy.

The timing of the application submission is also critical. If transfers were made, for example, submitting a Medicaid application too early can result in a longer ineligibility period for long-term care benefits. On the other hand, submitting the application too late can result in your missing a retroactive start date for benefits forcing you to unnecessarily spend down your assets.

What if you’re not aware of Medicaid’s harsh rules for Single and Widowed people?

Unfortunately, the rules for single and widowed seniors aren’t the same as the rules for seniors who are married. This means, as a single person, even if you plan ahead to protect your assets against a possible nursing home stay, you could be ineligible to receive Medicaid assistance for five years. If you enter a nursing home before that five year waiting period ends, the nursing home may force you to use a significant portion of your assets as payment for care. A single person without an Asset Protection Plan may have nothing left to leave their heirs. For this reason, planning early is even more critical for single than for married seniors.

What if you listen To others who tell you to ‘spend down’ your assets?

Nursing homes can charge higher rates to people paying privately while Medicaid has pre-arranged lower nursing home reimbursement rates. Because they make more money from private payers, most nursing homes have no incentive to help you apply and qualify for Medicaid. In addition, some attorneys simply won’t admit when they lack the expertise in a particulararea of the law.Consequently, many trusting individuals have been incorrectly advised to give away or ‘spend down’ their assets until they have no more than $100,000. In these cases, what you don’t know can hurt you.

Spending down assets is not always a prerequisite to qualify for Medicaid. It is worthwhile to speak to a Senior Asset Protection Attorney who will help explore alternate strategies for preserving your life savings.

What if you put your house in your child’s name thinking it will protect your home from Medicaid?

Many people think the best way to protect their home is to just give it to their kids outright. That seemingly simple solution may be the worst possible choice. Transferring your home directly to children can lead to a number of problems. First, when your children sell the house, they will pay a large capital gains tax which may have been avoided with advice from a Senior Asset Protection Attorney. Secondly, things can happen to children that can place the house at risk: What if your child gets divorced, is sued, or has creditor problems?

By giving your home outright to your children you could ultimately lose the house.

What if you rely on your family attorney, who may not be an expert in Medicaid Law, to comprehensively protect your assets?

The law, just like the medical field, can be highly specialized. In most cases, your family attorney is not an expert in the complex laws governing the relationship between asset protection and the process of qualifying for nursing home Medicaid benefits. In fact, many attorneys avoid handling cases that require Medicaid knowledge because the Medicaid laws are very complex and are always changing. If you are concerned with protecting your assets for yourself, your spouse, and your heirs, seek guidance from a Senior Asset Protection Attorney who specializes in what many call “Elder Law”. This type of expert attorney can assist you with Medicaid and nursing home issues, as well as protect your assets from long-term care costs. If you seek counsel from an attorney who does not specialize in Elder Law issues, you may be misinformed, misdirected, and run the risk of losing your home and life savings.

 

If you are concerned with protecting your assets for yourself, your spouse, and your heirs, seek guidance from a Senior Asset Protection Attorney.

What if you leave an inheritance to your Children (or other relatives) with the intent that they will be financially responsible for your disabled or dependent Child?

Some parents with a disabled or dependent child decide to leave their entire inheritance to the non-disabled children, intending for them to financially support their disabled or dependent sibling. Simply put, bad things happen to good kids. Inheritances can be depleted through divorce, bankruptcy, and creditors.

This type of arrangement is unfair to all of your children. Instead, a special needs trust should be drafted by a Senior Asset Protection Attorney in order to secure the level of care needed for the disabled child without impacting their eligibility for Medicaid, SSI, or public housing.

What if you don’t have a durable Power of Attorney or a Healthcare Proxy?

A Durable Power of Attorney and a Healthcare Proxy are documents that allow another person to legally act on your behalf when or if you can’t. If you fall into a coma or develop dementia, these designated person(s) can make financial and medical decisions for you. Without these documents, your family will have the financial and emotional burden of going through the courts to become a court appointed guardian. Keep in mind, the court may appoint a stranger if there is any disagreement as to who should serve in this role. To ensure that your financial and medical wishes are carried out, a Durable Power of Attorney and a Healthcare Proxy are essential legal documents.

What if your Will is not up To date?

It’s not enough to simply have a will; your will must be up to date so that your last wishes are honored when you die. You should have your will reviewed by a Senior Asset Protection Attorney if any of the following situations have occurred since the drafting of your most recent will:

  • It has been three or more years since your will was  last reviewed by an Senior Asset Protection Attorney.
  • You become aware of a change in tax laws that could affect you.
  • You receive an inheritance.
  • You are approaching the age (usually 70.5 years) at which you are required to begin taking distributions from your IRA, 401(k), or other qualified plan.
  • You wish to change the executor, guardian, or beneficiary of your estate.
  • There is a birth or adoption of a child or grandchild.
  • There is a marriage or divorce.
  • You or a family member become disabled.
  • There is a death of someone named in your will.
  • Your children reach the age of eighteen.
  • You would like to provide for a charity or other organization.
  • There is a significant increase or decrease in the value of your estate.
  • You move out of state.

Probate proceedings are expensive, time consuming, and emotionally draining for your loved ones, as private matters may be openly discussed in court.

What if you don’t take steps To avoid probate?

Unless a person has planned appropriately, upon their death, their estate will go into probate. The probate court takes administrative control of all financial affairs of the deceased. The probate process determines the validity of the will (if one exists), includes the accounting of all the assets, and distributes the remaining assets to the heirs. Probate proceedings are governed by state laws and are extremely expensive. In addition to the cost, probate is time consuming and emotionally draining for your loved ones, as private matters may be openly discussed in court.

No one wants to see their hard-earned assets go to the state. Meeting with a Senior Asset Protection Attorney will provide you with the legal guidance you need to make these important decisions. In most cases, the minimal cost of planning ahead relieves your heirs of the greater cost and administrative burdens of probate.

What if you avoid having the conversation with your aging parents about long-Term Care and asset protection?

Even though this can be a very uncomfortable topic, it is critical for children to initiate a conversation with their aging parents about a long-term care and an Asset Protection Plan. Most families seek legal counsel for help in understanding the complexities of these high impact decisions. Each family’s situation is unique, and a Senior Asset Protection Attorney is experienced in not only explaining the pros and cons associated with each medical, financial and legal decision, but also in building consensus among multiple family members.

What if you think hiring a specialty lawyer for pre-planning is too Costly?

People sometimes avoid Asset Protection Planning because they don’t want to pay an attorney for these services. The truth is, not paying for the services of a Senior Asset Protection Attorney now could mean your spouse or heirs will pay a higher price later. It’s a lot less expensive and emotionally draining for heirs if you properly plan your asset protection now.

Copyright © 2010 Cohen and Oalican, LLP - Elder Law, Medicaid and Long Term Care Attorneys - Serving Greater Boston & Southeastern Massachusetts. All Rights Reserved.

People we have helped

P. B.
I had been trying to help an elderly uncle and two aunts fulfill their wish to live together and also to protect their assets for each other. Steve put together a plan for my uncle and aunts which accomplished their goals. Cohen & Oalican prepared and filed my aunt's Medicaid application and prot...