Olivia K. Smith on Families & Seniors

Medicaid’s Gift Giving Policies

July 26, 2021Filed Under: Medicaid Planning

Your loved one should not be giving gifts if there is a possibility that a loved one might need Medicaid assistance in the foreseeable future. This can be sad if that person gets joy out of generosity. But gifts in that situation can turn out to be very, very expensive.

Medicaid is the government program that covers the huge expense of long-term care, for those who are not able to pay for it out of their own pocket. But to be eligible, Medicaid applicants must be pretty much broke. They are permitted to own no more than around $2,000.00.

On the filing of a Medicaid application, caseworkers will meticulously investigate the applicant’s financial history. They are looking to see whether an applicant has given away money or assets over a period of years before the Medicaid application is filed. That period of years is known as the “look-back” period. In all states except California, that period for nursing-home care is five years under the current rules. In California the period is 2.5 years.

Depending on the size and number of gifts given away during the “look-back” period, the penalty imposed as a result could be substantial.

Many think that there would be no penalty for gifts of up to around $15,000 annually. That misunderstanding confuses tax law with Medicaid law (and it also is not quite accurate under tax law, but that’s another subject). In the Medicaid context, gifts of any amount that are given during the look-back period can be penalized.

There are a number of options to protect assets and still qualify for Medicaid. For instance, exceptions include gifts to spouses and siblings under certain circumstances, disabled children, and children who are caregivers and who live at home with the elder for a span of time. But overall, gifts and Medicaid do not go together.

The Medicaid rules are complicated and the consequences for mistakes like gift-giving can be very costly. This is why it’s best to consult attorneys like us, who are especially qualified by our experience and expertise in Medicaid law. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

Estate Planning’s Importance in the Queer Community

July 19, 2021Filed Under: Estate Planning

In the LGBTQIA+ community, estate planning can legally protect against discrimination even if others are reluctant to recognize your relationship and your desire to permit your partner to make decisions for your care should you become unable to. Estate planning can also create mechanisms that financially provide for your partner as well.

How Obergefell v. Hodges Impacted Same-Sex Couples

In 2015 the case of Obergefell v. Hodges made it a fundamental constitutional right to marry, including same-sex couples. The US Supreme Court’s decision to recognize same-sex marriages opens up many previously unavailable legal tools and tax savings that had only been available to “traditional” legally recognized marriages. The Supreme Court ruling further stated that a valid same-sex marriage in one state must be recognized in all states. Note that non-marriage alternatives will not result in the federal government’s recognition of the relationship.

These alternatives include adults in domestic partnerships and civil unions, which are federally not legally recognized as marriage. However, these couples can still receive partnership decision-making privileges and benefits. To do so requires a different type of planning. However, your partnership is characterized, creating a legal framework to protect yourself and your partner is possible.

A married same-sex couple with proper estate planning will receive all state and federal benefits of marriage. Federal benefits include the unlimited marital deduction for federal estate and gift taxes. An unmarried same-sex couple who cannot receive these marital tax benefits can still ensure their partner will receive the legal right to inherit each other’s assets with other legal mechanisms. They will also be able to make health care decisions for one another; however, the legal framework will differ from the legally married couple.

Revocable Living Trust for the LGBTQIA+ Community

In either marriage or a cohabitation arrangement, a revocable living trust permits the couple to nominate each other as trustee, allowing the spouse or partner to manage their loved one’s financial affairs if they become incapacitated. A durable financial power of attorney is another solution to manage the affairs of a loved one if they become incapacitated. The rules and requirements of a durable financial power of attorney vary from state to state, so it is necessary to review and reconfigure this document if you relocate. In either an LGBTQIA+ marital or cohabitation living arrangement, a health care power of attorney allows you to appoint your partner to make health care decisions on your behalf should the need arise.

Advance Healthcare Directive for the LGBTQIA+ Community

It is imperative to include a HIPAA privacy authorization form for your health care power of attorney or trustee. The form permits medical and healthcare professionals to disclose pertinent health information and medical records to a partner. A durable health care power of attorney can prevent biological family attempts to interfere with a spouse or partner’s ability to make medical decisions for their loved one. A legally binding durable health care power of attorney can prevent family interference, no matter how well-intentioned it might be.

The Importance of a Will for the LGBTQIA+ Community with Minor Children

Should a same-sex couple have children, where at least one parent is non-biological, a will is a legal tool to address guardianship of minor children. Your will is the only place to define guardianship of children and name an executor. Many custody battles over LGBTQIA+ parents’ non-biological children occur among families after the biological parent’s death or incapacity.

It is essential to address any previous LGBTQIA+ committed relationship structures before finalizing your estate plan to tie up any loose ends. If you were in a legal union before marriage was an option, you are subject to the patchwork of prior state laws that can have unintended consequences for new estate planning. Before 2015 some same-sex couples married in states that recognized their marriage only to move to states that did not. Believing that their nuptials were non-binding in the states that did not recognize same-sex marriage, these couples may have split up without ever legally dissolving their marriage. Some states even automatically converted registered civil unions or domestic partnerships into legal marriages. The fallout is there are now LGBTQIA+ people who are married and unaware that they are open to the possibility of future claims against their estate from a previous marriage. All previous domestic partnerships, civil unions, or other legal arrangements must be untangled and resolved to protect against these possibilities.

In general, studies find that the LGBTQIA+ community tends to lag behind others in having a will and revocable living trust. These documents are significant for non-married LGBTQ+ people in a seriously committed relationship. State laws will default to granting rights to biological family members absent legal documents to the contrary.

Specific issues unique to the LGBTQIA+ community can potentially make planning more complex. We would be happy to meet with you to discuss how you can properly document your wishes regarding the inheritance of your property, who can make decisions for you if you’re unable to, and who would care for your children should the need arise. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

How Pandemics Reinforce Lessons on Senior Loneliness

July 12, 2021Filed Under: Elder Law

It’s no surprise that growing older can be a challenge and not the pleasant experience seniors once envisioned. Diabetes, high blood pressure, obesity, heart conditions, and pulmonary problems are common hurdles to overcome or manage. Apart from these well-known health issues growing evidence points to the powerful negative effects that loneliness plays in the life of senior well-being. Sadly, millions of American adults live their lives devoid of meaningful social connections, and the problem is so big, experts are declaring “loneliness a bigger health epidemic than obesity.”

Understanding the Rise of Loneliness for Seniors

According to nxtgencare.com, statistics show older adults living in loneliness are 45 percent more like to die sooner and have a 59 percent greater risk of a decline in health comparative to their socially engaged counterparts. While loneliness can have negative consequences at any age, older adults can suffer serious detrimental health consequences that can shorten their lifespan, and loneliness is rampant during the age of coronavirus isolation of seniors. Even the Centers for Disease Control and Prevention (CDC), in conjunction with the Centers for Medicare and Medicaid (CMS), amended guidelines for nursing home visitation in March of 2021, noting the toll that isolation through separation has on nursing home residents and loved family members and friends. The need to experience physical contact is universal for mental, emotional, and physical well-being.

There are simple steps to take to combat the feelings of loneliness, especially among the elderly. It begins with the brain, which is highly responsive to “exercise,” much the same as a muscle in the body. The more the brain receives training and exercise, the stronger and healthier it becomes. It is possible to retrain and rewire neural pathways and processes which release positive chemicals in our brains. A similar phenomenon occurs when seniors participate in socially meaningful ways.

How Social Engagement Can Positively Impact Seniors

Meaningful social engagement offers a wealth of positive biochemical benefits, more so than many novel drug interventions. Meaningful social engagement, combined with other aspects of healthy living, can prevent and protect our brains from some of the more common challenges of growing old. The concept is simple, put yourself in social settings regularly such as:

Share tea, coffee, or a meal with friends
Small groups in conversation are more brain-stimulating than a one on one chat
Look for opportunities to meet new people
Join a class and learn something new
Attend a yoga, Thai Chi, or meditation class
Make your way back to in-person religious services

Positive thinking can help you retrain your brain and banish negatives thoughts because as we think, we feel. Feelings of hopelessness and dwelling on pessimistic thoughts can lead to cycles of negativity. Instead of seeing the downside of a social event, think that you might meet someone new and interesting. Rather than focus on a night of poor sleep, practice calming breathing exercises. Implement the 4-7-8 breathing technique before sleep and if you don’t know what it is, read all about it here. If it is raining outside, think of the value it will bring to the living world outside, like trees, flowers, and how it will help to refresh the air you breathe.

Learn new things as it engages different parts of your brain. You can learn a new language or polish up your skills in a foreign language you already know using the free app Duolingo or pay a nominal fee for Babbel. Try a dancing lesson if your balance is strong enough, play chess, or try a new recipe. Even something as simple as brushing your hair and teeth with the opposite hand can help activate your brain, and that activity negates the effects of loneliness.

Physical activity moves more than just your body; it “moves your brain” too. Endorphins, or the “feel-good” chemical in our brain, become active with muscle movement and reduce feelings of loneliness. Ideally, just thirty minutes a day of physical activity, twenty of it consecutively, is all your body needs for these powerful, positive chemicals to be released. Walking, balancing exercises, chair stretches, even a recumbent bike will provide enough stimulation to promote a happier you.

Maintaining mental health is not only recognizing and treating mental illnesses like anxiety and depression. Many of the suggestions above also help promote mental wellness. Mental well-being can also mean disconnecting from a 24/7 news cycle and online distractions and finding some peace in simplicity.

While there are many techniques to employ that combat loneliness and depression, these feelings can also be real illnesses. Neither depression nor anxiety is a normal part of aging. If you cannot break the negative thought cycles in your brain, it is important to speak to a health professional for more intensive therapy. However, for many aging Americans, simple shifts in daily living habits and attitudes can create monumental changes in mental health wellness and diminish feelings of loneliness. The world is slowly emerging from the grip of the coronavirus pandemic and the isolation it imposes. Now is a great time to implement new strategies to combat loneliness and live a happier and healthier life. We are only human after all, and life is meant to be shared.

If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

Tips for Special Needs Estate Planning

July 5, 2021Filed Under: Estate Planning

Many scientists regard the term special needs as a euphemism for disability. Yet, the difference between the two terms is primarily one of acceptance and preference as both terms describe the four major types of disability: physical, developmental, sensory impaired, and behavioral/emotional. With today’s medicine and health care advancements, children with a wide variety of special needs or disabilities can live more productive lives than ever before.

When you have a child with special needs, it is crucial to plan their future with the utmost care as they will meet additional challenges to care for themselves and their lives. According to the US Census Bureau, between the years 2008 to 2019, the biggest increase in special needs was the experience of cognitive difficulty, which saw a large jump in prevalence.

Careful estate planning for parents with children of special needs is necessary to ensure government benefit access remains without foregoing family support. Below are some basic planning tips to consider to protect your child with special needs. If you would like to explore these options in more detail, please give us a call to set up a confidential meeting.

While your child is a minor, be sure you and anyone caring for your child has signed appropriate directives that specify who should care for your child in the event you are unable to. You may also consider preparing legal documents that name a guardian for your child, again if you are unable to care for your child or in the event of your death.

Once your child is an adult and has the legal capacity to sign documents, that child should have their own set of advance directives naming a trusted agent.

There are several types of special needs trusts. A First Party Special Needs Trust receives its funding from the special needs person as long as they are under 65. The funding mechanisms may be lawsuit proceeds, inheritance, or lump sum disability benefits. This trust can be established by the special needs child, parent, grandparent, or guardian and, when drafted properly, will not affect eligibility for the special needs person’s government benefits.

A Third Party Special Needs Trust permits family members to use their assets to fund a trust to benefit a person with special needs without negatively impacting that person’s eligibility for government benefits. The funds in this trust type do not have a payback provision, allowing any remaining assets to pass to other beneficiaries as designated by the trustmaker and can be created during a lifetime or under the instructions of a will.

Finally, a Pooled Trust is a community trust that a non-profit organization manages to fund the needs of many special needs beneficiaries. In essence, the non-profit acts as a trustee and can be a good option for small families or those who seek non-family member trustees. The property held by pooled trust for the beneficiary should not affect eligibility for government benefits.

If you have a life insurance policy or are considering one, you can make the proceeds payable to your third party special needs trust. Leaving permanent and term life insurance policies to this trust type will not affect the child’s government benefits. If you have retirement accounts, those may be payable to the third party special needs trust as well if there is a balance at the end of the account holder’s life.

It is not advisable to leave property for the care of your special needs child to a third party, such as another child. This third-party designate has no legal obligation to follow your wishes, leaving the use of your money to the discretion of that third party. As this type of arrangement is not legally enforceable, your child with special needs will be wholly unprotected after you die.

Create an Achieving a Better Life Experience or ABLE account. This type of account is not unlike the idea of the 529 College Savings Plan. An individual experiencing their disability before 26 years old can deposit up to $15,000 per year into their ABLE account. The account grows tax-free and can pay qualified expenses to maintain or improve quality of life. An ABLE account can also receive funds from parents, other family members, or friends who want to contribute to the account. Most government benefit programs are not affected by ABLE account funds.

There are many intricacies to consider when creating an estate plan that involves a special needs child. We help clients with their estate planning needs and would be happy to meet with you at your convenience to discuss your situation and determine the best plan for you and your family. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.