exclamation alert Russo Law Group is OPEN and we are doing our part to Keep our Clients Safe and Protected. Click here for more details.

What is “Elder law”? According to Wikipedia, it is “an area of legal practice that specializes on issues that affect the aging population”. It goes on further to identify three major categories that make up elder law:

  • Estate planning and administration
  • Medicaid, disability and other long term care issues; and
  • Guardianship, conservatorship and commitment matters

Although elder law can encompass non-legal services, such as social workers, geriatric care managers and psychologists, this article will focus on the legal aspects of elder law.

The Legal Aspects of Elder Law

Elder law is a complex legal field dealing with various issues, including important legal documents such as durable powers of attorney, health care directives, wills and trusts. It may also involve asset protection and Medicaid planning.

In this seemingly constantly evolving field of law, it is important to consult and work with an attorney who focuses his or her practice on elder law. There are attorneys who do elder law and elder law attorneys. An attorney who does elder law may also practice in multiple other fields of law that are not even related to elder law, such a matrimonial law or personal injury law. It is difficult to practice in multiple areas and do all of them well.

Finding an Elder Law Attorney

When searching for an attorney in this area, you should seek out an elder law attorney. Unfortunately, I have met with clients over the years who had previous work done with another attorney who did not focus on elder law.  I have had to recommend to clients that the documents the attorney did were either incorrectly done or needed to be changed because the documents did not do what the client thought (for example, the trust that was done may not protect their assets if they suffer a catastrophic illness).

Questions to Consider

  • What types of law does the attorney practice?
  • How much time is devoted to elder law-related areas of practice?
  • What affiliations does the attorney have with elder law-related organizations, such as sections or committees of bar associations?

Why is this important? Because elder law is an area of practice that focuses on your health and the preservation of your dignity and your assets. What is more important than that?

 

The School Tax Relief “STAR” program offers property tax relief to eligible homeowners in one of two ways:

  1. STAR credit check – you receive a check each year instead of a reduction in your taxes
  2. STAR tax exemption – you receive a reduction in the school tax portion of your real estate taxes

Basic Versus Enhanced

There are also two types of “STAR” benefits: basic and enhanced. The enhanced benefit is for homeowners who are age 65 or older and have limited income.

For the basic STAR, you should register as soon as possible, but you only have to register once. Since the enhanced STAR is also based on income, you must apply/verify your income each year. The application must be submitted to your local tax assessor on or before the applicable taxable status date, which is generally March 1. However, there are a few exceptions to this date, notably in Nassau County it is January 2 and in Westchester towns it is either May 1 or June 1 (check with your town).

Other Property Tax Exemptions

In addition to the “STAR” program, there are many other property tax exemptions. Some of the most common are:

  • Senior citizens exemption
  • Veterans’ exemption
  • Exemption for persons with disabilities

For more information on these and other exemptions, including eligibility and application deadlines, go to the New York State Department of Taxation and Finance website.

Oftentimes people are drawn to the ease of creating an online Will versus seeking the guidance of a qualified elder law attorney. But, before you go online, consider these five reasons why online Wills aren’t your best option.

Proper Execution

Wills are formal documents and the execution of a Will is a serious and formal ceremony.  If your Will is not executed pursuant to state law requirements, it is likely not to be admitted to probate – meaning your wishes stated in your Will will fail.

Difficult to Administer

Wills are complex and formal documents. In order for them to be admissible in court, they need to include language that effectively grants power to their chosen Executor. All too often an Executor is not necessarily granted rights to fully manage the estate and fulfill obligations. Sometimes people forget to name an alternative Executor, which can cause problems when the original choice is unable or unwilling to administer the Will at the time of death. These are just a couple of examples of execution difficulty.

Easily Contested Gifts

Every Will needs to be very specific on bequeathed items or gifts. For instance, we have seen cases where a parent leaves his/her house to his/her child, but fails to specify any instruction on the contents of the house, the surrounding property, insurance, taxes and/or property maintenance. Unless these items are clearly outlined in a Will, others may attempt to make claim and cause unnecessary headaches.

Protection of Your Assets

Experienced elder law attorneys are trained to understand the inner workings of complicated government benefit laws. Having someone on your side that fully comprehends how to navigate these laws is essential. A Will cannot simply state who receives what – there may be a serious risk to a loved one losing important and essential government benefits without the proper Will provisions. In order to ensure your Will protects your assets and provides for your loved ones once you are gone, it is best to consult with an experienced and reputable elder law attorney.

“Cookie Cutter” Wills

Unfortunately, when compiling an online will, most sites offer a “template” and do not take into consideration a number of important issues, i.e. your state’s laws regarding inheritance; long-term care; trusts; and other matters. In order to be compliant, you need to fully understand these areas and the language needed to ensure your wishes are met.

Online Wills, while they can seem appealing, can cause undue stress for your loved ones at the time of your death. It’s important to consult with an experienced elder law attorney to ensure your Will is properly drafted and executed to ensure your wishes are carried out to the fullest extent possible. Unfortunately, if you have prepared your own Will, you may not know if there is a problem until it is too late. Experienced elder law attorneys fully understand the potential challenges and are well armed with solutions to overcome them within a Will.

The COVID-19 pandemic has had a devastating impact on adult care facilities, especially in nursing homes.

New York Executive Order

On May 10, 2020, Governor Andrew Cuomo signed an Executive Order addressing concerns for the safety of residents in these facilities, which included rules for staff testing and re-admission parameters for a resident that had to leave for the hospital. As of this writing, the Order has been extended until July 9, 2020 (subject to further extension by the Governor).

The Order authorized the New York State Department of Health (DOH) to suspend or revoke any license of any such facility that fails to comply with the Order.

What the Order Entails

ALL staff (including administration) of an adult are facility shall be tested for COVID-19 twice per week.  If a staff member refuses testing, then that staff member will not be able to work until testing is performed (and the test result is negative).  If a staff member tests positive, that result must be reported by the facility to the DOH by 5 pm the next day and the staff member must self-isolate pursuant to the period of time recommended by the DOH and the Centers for Disease Control and Prevention (CDC).

As to re-admission to the adult care facility from a hospital stay, the Order indicates that a hospital may only discharge a patient if the adult care facility first certifies that it can properly care for the patient. Additionally, a hospital shall not discharge a patient without the patient first having tested negative for COVID-19.

DOH Directive

On May 11, 2020, the DOH issued a directive regarding safety measures for discharges and admissions to nursing homes including:

  • Personal Protective Equipment required for any staff interacting with a resident with COVID-19
  • Visitation limited to imminent end-of-life situations
  • The facility is required to notify all residents and family members within 24 hours of a positive COVID-19 test or death resulting from COVID-19
  • Protocols for separating residents and staff for positive and negative COVID-19 residents0
  • Daily screening of staff for COVID-19 symptoms

Finally, hospitals may not discharge a patient who is still testing positive for COVID-19 to an adult care facility, nor may such a facility accept such a patient.

A recently issued General Information System message (GIS) from the New York State Department of Health (which can be found here: https://www.health.ny.gov/health_care/medicaid/publications/docs/gis/20ma04.pdf) implements new and sweeping changes to the Medicaid application process. According to the GIS, these procedures will be in place “for the duration of the COVID-19 public health emergency”.

Here is a brief summary of some of these important changes:

Recertifications

There will be no need to recertify during the emergency period. All active Medicaid cases with coverage dates ending in March, April, May or June will be automatically extended for 12 months. If you submit or have already submitted, a recertification, it is not required to be processed at this time. Medicaid coverage in effect as of March 18, 2020, must remain in effect during the emergency period and cannot be terminated or decreased.

Medicaid Applications

The Department of Social Services (DSS) must allow for self-attestation for all eligibility criteria, except for citizenship/identity. This means that an applicant will not have to submit financial statements and related information as part of the application. A completed Medicaid application, including the Supplement A, must still be completed.

For a nursing home application, the same rule applies and the applicant can attest as to income and resources and as to any transfers during the look-back period.

Additionally, during this emergency period, for individuals in hospitals and nursing homes, the application can be signed by someone on behalf of the applicant. This addresses the inability in large part to be able to meet with people in those settings as a result of the pandemic.

If information is missing or needed, DSS should contact the applicant or the applicant’s representative (or whoever signed the application) by telephone or email for the missing information.  There will be no immediate need to supply documentation and the information can be provided verbally.

Conditions of Eligibility

The following conditions are being waived during this time:

  • Individuals turning 65 must not be required to apply for other benefits (ie, Medicare and Social Security) as a condition of eligibility
  • The applicant will not have to apply for VA benefits, as applicable
  • For retirement accounts, DSS may accept attestation as to the amounts being received

These broad and sweeping (temporary) revisions to the Medicaid application process are a welcome change to those who are in need of Medicaid currently and to those who want to ensure uninterrupted Medicaid eligibility and services.

It is important to note that these revisions are temporary in nature and we expect further relevant updates in the future.

If you or a loved one are in need of help at home, or in a nursing home, it is critical to move quickly to get started and contact an experienced elder law attorney to assist you with the process.

New York State Budget – Medicaid Update: Good News/Bad News

On April 3, 2020, Governor Andrew Cuomo signed the approved 2020/2021 budget for New York State. As it often happens in matters of budgets and law-making, what comes out is often a mixture of good news and bad news.  This year, the budget does not disappoint in that regard.

The Good News

  • Spousal refusal survives – Spousal refusal, which seems to be on the chopping block every year, has again staved off elimination. Spousal refusal is critical for married couples to allow the spouse who is not applying for Medicaid, to retain his or her own income and assets to live on – even if those amounts exceed what Medicaid permits
  • Spousal Resource Allowance unchanged – There was a push to reduce the spousal resource allowance (what a non-Medicaid spouse is permitted to retain in assets) from the current minimum of $74,820 to $25,728. Thankfully that push failed so the minimum remains at $74,820.

The Bad News

  • Financial “look back” for community Medicaid – Up until now, there has been no official “look back” when someone applies for Community Medicaid. In other words, if assets were transferred prior to applying for Community Medicaid, there were no ramifications to that person’s eligibility for Community Medicaid. Effective with applications filed as of October 1, 2020, there will now be a 30-month look back, similar to that of a Medicaid nursing home application. If the applicant made any non-exempt transfers, the applicant will be subject to a period of ineligibility (“penalty period”) based on the amount of the transfers.

This process will apply to home health care services, private duty nursing, personal care and the assisted living program (“ALP”).

Unfortunately for those requiring services in the community, this will be potentially disastrous. There will now be the added time and stress for the family in retrieving 30 months of financial documentation, also coupled with long delays in processing these more voluminous and complicated applications by the Department of Social Services (already overloaded with cases).  All of this will lead to longer waiting times for a client to get the services they need and needing to privately pay for those services during this lengthier application process.

At Russo Law Group, we remain ready and able to serve our community and assist in getting through this process. Now more than ever, it is important to seek the advice of an experienced elder law attorney to preserve your dignity and protect your assets.

If your application for Medicaid has been denied or not acted upon promptly, you have the right to a fair hearing. Here’s what you need to know:

Q: What is a fair hearing?

A: A fair hearing is a proceeding before an administrative law judge (ALJ). If you feel that the decision made by the Department of Social Services (or Managed Long Term Care Agency) on your Medicaid application was incorrect, you have the right to request a fair hearing. The three most common reasons to request a fair hearing are:

  1. A decision that you are not eligible for Medicaid (a denial);
  2. A decision that denies, suspends, reduces, or stops existing Medicaid coverage for a service; or
  3. A failure to act upon your request for Medicaid eligibility or for service coverage.

You can also request a fair hearing if you are receiving care at home and need to request more hours.

Q: How do I request a fair hearing?

A: To request a fair hearing you need to act promptly. A fair hearing MUST be requested within 60 days of the date of the Medicaid Notice for which you are appealing. You will receive a Medicaid Notice in the mail indicating the date, place, time and reason for the hearing. If you miss the deadline, you will be barred from requesting a hearing and the Medicaid Notice will stand.

Q: What documentation are you expected to provide at the fair hearing?

A: If the hearing involves medical issues, the ALJ may deem it necessary to have a new medical assessment conducted. This assessment will be obtained at the State’s expense and made part of the hearing record. You will also have the opportunity to examine and be given access to the following (upon request) before the hearing:

  • The content of your case file; and
  • All documents that the Agency (Medicaid) will use at the hearing;

You may also:

  1. Bring witnesses;
  2. Bring documentary evidence to submit a the hearing in support of your case; and
  3. Question or refute any testimony or evidence provided by the Agency.

Q: How long does a fair hearing last?

A: A fair hearing is like a trial, but not as formal. You have to present all of the evidence you have to prove that the caseworker’s decision was wrong. You may also need to make legal arguments in support of your position on eligibility for benefits. Depending on the issues, it is not uncommon for a hearing to last an hour or more. The decision is not made at the end of the hearing. It is usually mailed within 2-4 weeks of the hearing.

Q: Who makes the final decision for your Medicaid status at a fair hearing?

A: The ALJ in a fair hearing gathers all of the evidence, takes any testimony, can ask questions, and will then compile a record of the hearing and recommendation. The case record is then sent to Albany to the Office of Temporary and Disability Assistance from which the written decision is rendered. If the fair hearing decision finds fault with the Medicaid determination, then the Agency will be required to follow the hearing decision. This may include overturning the Medicaid decision as incorrect, or may require the Agency to continue to process a Medicaid application with information or documentation that was submitted at or prior to the hearing.

Q: Can I resolve a negative determination without having to attend or request a fair hearing?

A: You may be able to request that the Medicaid agency conduct a “reconsideration” of the denial or other adverse determination. Although there is no law for this process, if an Agency is willing to reconsider, the request usually must be made within 30 days of the determination. This process usually involves submitting documentation that may have been missing but was obtained subsequent to the Medicaid determination. If you are not satisfied with the reconsideration results, you still have the right to a fair hearing (but it still MUST be requested within 60 days of the original Medicaid determination).

It’s important to understand the Medicaid fair hearing process should your application be denied or delayed. There are steps to take to rectify this situation and ensure you get the services you need. If you have any questions, please contact us. We would be more than happy to discuss your situation and counsel you through this process.

It can be extremely upsetting to be told by a nursing home that your loved one must leave. Unfortunately, sometimes a nursing home will have an ulterior or nefarious reason to want to discharge a resident from the facility. Perhaps the resident is difficult. Or maybe the family members are being difficult. It may even be that the resident has become a recipient of Medicaid benefits.

Well, none of those reasons are legally acceptable for wanting to discharge a resident from a nursing home. Under federal law, there are only a handful of reasons where it is proper for a nursing home to discharge a resident:

  • The resident’s health has improved so that he or she no longer requires the care provided by a nursing home
  • Non-payment for services provided to the resident (after receiving proper notice of same)
  • The resident is a threat to the health and safety of other residents
  • The nursing home can no longer meet the needs of the resident
  • The facility goes out of business

Sometimes the nursing home will try to send the resident off to the hospital with the intention of not taking him or her back. State law may require the nursing home to hold the resident’s bed for a number of days (typically about a week). However, before a nursing home can transfer a resident to the hospital, they must inform the resident about its bed-hold policy.

The nursing home must also give proper notice as to the discharge (generally 30 days) as well as have a discharge plan, ensuring the resident has a safe place to go.

If the resident and or the resident’s family believe that the nursing home is trying to discharge the resident improperly, they do not have to accept the discharge without questioning as to why.

You can fight back and challenge an unlawful discharge. You can appeal the discharge or file a complaint with the state long term care ombudsman (for more information, see https://ltcombudsman.ny.gov/). Any appeal should be made as soon as possible after receiving a discharge notice.

YES, YES, YES! If you are over the age of 18 (and chances are if you’re reading this you are), you should have a power of attorney.  Unless you would rather leave it up to a judge.

A power of attorney is a legal document where you are giving your agent(s) the power to sign your name. A comprehensive power of attorney will allow your agent to do a number of important, and oftentimes critical, things for you, including but not limited to:

  • Access your finances
  • Pay your bills
  • Sell or mortgage your property
  • Deal with your retirement account
  • Set up trusts
  • Protect your assets if you require long term care

Powers of attorney typically fall into two categories – general and durable. A durable power of attorney remains in effect if you become incapacitated.  The power of attorney must state that it is durable, otherwise, it is general and is of no use if you become incapacitated.

The person you appoint in your power of attorney (the “agent”) should be someone you trust and is often a spouse or one or more of your children.  You can name more than one agent, but then have to decide if they have to act together or can act independently.  There are pros and cons to both and should be discussed with an experienced elder law or estate planning attorney who can assist with which works best for your particular situation.

You can give your agent as much power as you choose and can also limit an agent’s authority to act on your behalf.  Typically, though, a broadly drafted power of attorney is preferred to allow your agent to do whatever is needed, especially protecting assets.

Without a power of attorney (or if the power of attorney is not sufficient for what is needed), then a guardianship must be commenced in court. A judge will then appoint a guardian, if appropriate, to handle the person’s financial affairs.  This guardian may or may not be someone you know, or trust, or would have chosen yourself. This process is also time-consuming and expensive.

With a properly prepared and executed power of attorney, you likely will avoid your family and loved ones the time and expense of a guardianship and will have chosen those you trust to handle your financial matters and protect your assets.

You should also review your power of attorney periodically with your attorney to make sure it is current and up to date.

Generally, the answer to this question is “No”.

However, Medicaid does have a program, aptly named the “Assisted Living Program” (or “ALP”) that does provide Medicaid coverage for an assisted living.  There are a number of facilities in New York, and about a half-dozen or so on Long Island, in the ALP program.

Most assisted living facilities (“ALF”) accept only private pay or insurance (such as long term care insurance).  The cost of an ALF can be $7,000 or more per month.  For those are cannot afford the private cost of a typical ALF, they may be able to turn to the ALP program.

The Medicaid eligibility for the ALP program follows along the rules for community Medicaid.  Most importantly, there is no “look-back” period for this type of Medicaid and therefore no penalty for a transfer of assets (or gifts) that may have been made in the past, or planning as part of becoming eligible for community Medicaid.

When applying for Medicaid for ALP, the asset rules are the same (ie, a single person cannot have more than $15,450 in assets [for 2019], with a few exceptions), however, the monthly income limitations are different than the typical community Medicaid levels. Whereas with traditional community Medicaid the applicant is entitled to keep about $879/month of their income, in the ALP program the amount varies depending on the level of care but is less.  However, the recipient will still be permitted to utilize the services of a pooled income trust for the excess monthly income.  This will allow the recipient to use a portion of the excess income instead of having to spend it on care.

The ALP program can be an excellent way for someone with limited means to be able to live in an assisted living setting instead of having to go to a nursing home, perhaps prematurely, because they cannot afford a typical ALF.

With Father’s Day quickly approaching, I am reminded (not that I need to be) that although I will be celebrating as the proud father of four great kids, my own father is no longer with us.  It’s hard to believe that this will be my 6th Father’s Day without my dad.

June not only contains this cool day for dads (golf, ties, and such), but it is also Men’s Health Month.  In addition, the week leading up to Father’s Day is Men’s Health Week, the purpose of which is to heighten awareness of preventable health issues and to encourage early detection and treatment of illnesses and men (and boys).

My dad died after a short, but courageous and spirited battle against a particularly aggressive form of leukemia. My dad was not particularly fond of regular doctor visits. And we do not know for sure if his disease was caught any earlier that there would have been a different, better outcome.

What I do know, though, is that my dad did implement planning with advance directives well before becoming ill.  Many years ago I was able to convince my parents of the importance of advance directives: durable powers of attorney, health care proxies and living wills. I was successfully able to express to them that without these important documents they could be leaving it to chance or even a judge, to make decisions for them regarding health issues and finances if they did not have these documents. And, with a living will, they could express their wishes as to life-sustaining treatment if they were terminally and irreversibly ill.

I am thankful that my dad had these important documents that we were able to provide to his doctors and the hospital and that in the end, they kept my dad comfortable without implementing extraordinary measures serving only to prolong his suffering.  I am also thankful that knowing the outcome, the disease took him quickly.  And I will always miss him and his wisdom and guidance.

So guys, get yourselves checked out.  See you doctor and get all of the age-appropriate tests done. And while you’re at it, get a legal check-up too.

Many clients will ask the question, “When should I update my estate plan?” The answer is usually, whenever something big happens in your life.

All too often, clients will execute a Durable Power of Attorney, a Health Care Proxy, a Living Will, and a Last Will and Testament and believe they no longer need to think about the plan since they feel they have all the documents they need. They go on their way and live their lives and, throughout the years, different events may happen that can significantly impact their estate plan.

Here are some of the more common events that should make you think it is time to review your planning:

  • “Life” – The birth of a new loved one. If a new child or grandchild is born, you should have your estate plan reviewed by your attorney to make sure that the newest addition to your family is properly considered.
  • “Death” – Unfortunately, there may be a death of a loved one after you have created your estate plan. This death may impact your estate plan in a number of ways, i.e. testamentary scheme, your beneficiary designations, or tax planning. It is important to discuss the passing of a loved one with your attorney, especially if the person who died was a key player in your estate plan, such as a spouse.
  • “Illness” – An illness, especially one that may require long term care should create an immediate sense of urgency in having your plan reviewed. Timing is often critical in situations like this and important steps may need to be taken quickly.
  • “Marriage” (or “Remarriage”) – If you are planning to get married then you should review your estate plan with your attorney before you tie the knot to discuss the impact the marriage may have on your estate plan. This is especially true if it will be a second marriage and you both have children. If one of your loved ones is getting married or has gotten married and you are concerned about the new in-law then you should discuss your estate plan with your attorney to make sure your assets are protected for those who you intend to leave them to.
  • “Divorce” – Getting divorced will significantly impact your estate plan. You should contact your attorney prior to the divorce to make sure you are protected during the process of your divorce and once it is finalized. The divorce of a family member such as your child may also require a review of your estate plan. Although not common, some clients will include in-laws as part of their planning and it is likely that a divorce would change that.
  • “Taxes” – If your assets have significantly appreciated or depreciated in value, then the tax strategy involved in your estate plan may need to be re-evaluated accordingly.
  • “Time” – If it has been several years since you implemented your estate plan you should contact your attorney for a “check-up”. For example, you may not know that a law has changed that impacts your estate plan.
  • “A Move” – if you move to a new state, you should have your estate plan reviewed as state laws differ when it comes to estate planning documents. You need to make sure your documents are sufficient or if changes need to be made to meet state law requirements.

Creating an estate plan is important to preserve your dignity and make sure that your assets are protected for you and your loved ones in the event “life happens”. It is not only necessary to establish your estate plan, but also to follow up with your attorney periodically or after a major life event to make sure the plan is still appropriate.

As a planner, I sometimes hear things like:

  • “I thought I could give my kids $10,000”
  • “I’ll just sell my house to my children for $1”
  • “Can I pay my grandson’s college tuition and not have to worry about Medicaid?
  • “I will not give my daughter money to buy a car, I’ll just buy it for her”

So…when is a gift a gift? Is there ever a time when a gift is not a gift?

When it comes to Medicaid, the general rule is a gift is a gift, meaning that if you make a gift of your assets within the lookback period for nursing home Medicaid (the 60 months [5 years] immediately prior to the Medicaid application), the general rule is that a penalty will be assessed by Medicaid.  The penalty is a period of time-based upon the amount of the transferred assets (gifts) during which you will not be eligible for Medicaid benefits and will have to privately pay for the nursing home care (unless covered by insurance).

However, not all gifts create a penalty (or, the gift is not a gift).  There are a handful of exceptions to the general rule that a gift creates a penalty.  These are called “exempt transfers”.

One of those exceptions is when a gift is made to a spouse. There is no penalty (waiting period) when assets are transferred to your spouse, regardless of when it is done or the amount.

The question raised above, giving your children $10,000, is a common misconception when it comes to asset protection planning.  Many people confuse the IRS rules with the Medicaid rules.  Under IRS regulations, we are each permitted to make gifts of up to $15,000 per person each year without having to file a gift tax return.  However, under the Medicaid rules, those gifts will almost certainly subject to donor to a Medicaid penalty if they require nursing home care within 5 years of the gift.

Likewise, “selling” your $400,000 house to your kids for $1 is, in reality, gifting your kids $399,000, again creating a Medicaid penalty (with some exceptions).

When discussing these confusing rules with people either during a seminar or a meeting, I am often told that it is a lot for them to remember.  My response is usually that it is quite simple – you do not have to remember all of the rules and (sometimes more importantly) all of the exceptions, you just need to know an experienced elder law attorney.

Please contact one of our experienced elder law attorneys if you have any questions or need assistance with planning.

When it comes to protecting your assets from the costs of a long-term illness, such as a nursing home, the Medicaid Asset Protection Trust is a staple planning technique.  It is an effective way to protect your home (and other property) as well as certain liquid assets in the event you require long-term nursing home care in the future (after five years).

The Medicaid Asset Protection Trust (“MAPT”) is a form of irrevocable living trust.  This means that the Grantor (or Settlor), the person setting up the trust, cannot revoke the trust.  It is this feature, in part, that protects the assets in the trust from a nursing home and Medicaid.

But what happens if the Grantor needs nursing home care before the end of the five-year waiting period?

For example, if Joan establishes a MAPT today and transfers ownership of her home to the trust, she is transferring legal ownership to the trust.  This means that for Medicaid purposes she has made a gift (or an “uncompensated transfer”) of her home, subjecting her to a penalty (or waiting) period for Medicaid eligibility if she requires nursing home care within the five years of her placing her home into the trust.  At the time Joan established the trust, she was a relatively healthy 68-year-old.  She had no significant health issues.  Unfortunately, Joan suffered a serious and debilitating stroke 18 months later, which lead to her needing to enter a nursing home permanently.  Joan did not have significant liquid assets.  Her home was her most valuable asset (which is why she was trying to protect it from such a situation).

This is an example where the trust has to be “undone” or revoked.  However, Joan cannot revoke an irrevocable trust by herself.  In New York, we have a statute (law) which sets forth how to revoke such a trust.  It requires the consent of all parties involved, the Settlor, the Trustee(s) and the beneficiary(ies), who must all be adults.  In Joan’s case, her three children were the Trustees and beneficiaries and all consented to the revocation of the trust, which would allow the house to be put back into Joan’s name and for Joan to implement an alternate plan to protect a portion of the value of her home.  But that’s a story for another day….

So, it is possible to revoke an irrevocable trust, but that should not be the plan – to simply think you can set up a trust and just revoke if needed in the future.  Establishing a MAPT can be extraordinarily powerful and effective in asset protection planning, but it should be done in coordination and counsel with an experienced elder law and estate planning attorney.

Please feel free to contact us so that one of our experienced attorneys can assist you.

I have a client who several years ago got one of those phone calls no parent ever wants to get.

Her daughter, Susie, was a freshman at a college in upstate New York after having graduated in the top 10% of her class of her high school on Long Island, where she grew up and where her parents lived.

A few months into her first year away at college, where she was doing very well and had made several new friends, one of Susie’s friends called her parents to let them know that Susie was in a pretty bad car accident.  The friend told them that Susie was in the hospital but she wasn’t sure how she was doing.

The parents, incredibly shaken by the news, called the hospital (which was some 6 hours away) to inquire about Susie. However, Susie was 19 years old, and in the eyes of the law was an adult who has to give permission to speak to others about her care or other medically related needs.  Unfortunately, Susie had not given such consent previously not was she able to do so at that time.  Susie did not have a HEALTH CARE PROXY!

Of course, she didn’t have a health care proxy.  Why would a 19-year-old, perfectly healthy young woman, need a health care proxy?

Well, this is story explains one reason why everyone age 18 and older should have a health care proxy.  The proxy is a legal document where you can name someone to make health care decisions for you, including getting medical records and information, if you become unable to make such decisions for yourself.  You can (and should, if possible) also name an alternate agent in the event your primary agent is unable or unwilling to make those decisions for you.

As soon as possible after your child turns 18 (and is no longer considered a “child”), you should ask them to execute a Health Care Proxy.  Whether they are going away to school or staying at or near home, there really is no reason to not have such an important document.