Posts Tagged ‘assisted living facilities’

Cohabiting Seniors: Protect Your Rights

Tuesday, June 28th, 2011 by Moore McLaughlin

More and more seniors are living together without getting married. According to U.S. Census data, the number of cohabiting seniors nearly doubled between 1989 and 2000. For some seniors, marriage isn’t financially worth it‚ they don’t want to lose their former spouses’ military, pension, or Social Security benefits. Other seniors don’t want to have to pay their partners’ medical expenses or deal with the objections of children worried about their inheritance.

There are risks to cohabiting without marriage, however. You have no rights with regard to your partner’s health care decisions. In addition, you may be considered “common law” married by a court after you die, possibly causing a dispute between your partner and your children. If you and your partner plan to live together without getting married, you can take a number of steps to ensure that you are protected and your wishes are followed.

  • Sign a cohabitation agreement. If you live in a state that recognizes common law marriage or even if you don’t (some courts have recognized the rights of unmarried partners who lived together in non-common law states), you may want to enter into a cohabitation agreement with your partner. The agreement can state your intentions not to marry or to make any claims against each other. It can also specify the division of household expenses and what will happen to your house in the case of death or breakup. You should consult a lawyer for assistance in drawing up an agreement.
  • Provide access to health care decision making. If you are not married, you have no right to participate in your partner’s health care decisions or even, in some circumstances, to visit your partner at the hospital. To avoid this situation, you need several documents. You can sign a Health Insurance Portability and Accountability Act (HIPAA) medical release to allow each other access to the other’s medical information. In addition, you should have a health care proxy and/or a durable power of attorney for health care, naming your partner as your agent to make health care decisions. For more information on medical directives, contact attorney Jill E. Sugarman at 401-421-5115 or by e-mail at JSugarman@McLaughlinQuinn.com.
  • Sign a durable power of attorney. A power of attorney allows your partner, or whomever you appoint, to make financial decisions for you if you become incapacitated. Without a power of attorney, the court will have to appoint a conservator or guardian to make those decisions and the judge may not choose the person you would prefer.
  • Update your will. Your will should be clear about what happens to your possessions when you die, including your house and its contents. It is particularly important to specify what will happen to your house if it is owned by only one partner.
  • Think about the tax consequences of gifts. Married couples can leave each other as much as they want without paying estate taxes; unmarried couples cannot. If you want to leave money to your partner, consult an estate planning attorney or tax expert to find ways to limit estate taxes. For more on estate planning, contact attorney Jill E. Sugarman at 401-421-5115 or by e-mail at JSugarman@McLaughlinQuinn.com.
  • Look into registering as domestic partners. Some cities and states have domestic partnership laws, which may allow unmarried couples to take advantage of their partners’ health insurance or to participate in health care decisions.

Adult Children Losing $3 Trillion in Caring for Aging Parents

Tuesday, June 28th, 2011 by Moore McLaughlin

Americans who take time off work to care for their aging parents are losing an estimated $3 trillion dollars in wages, pension and Social Security benefits, according to a new MetLife study. Meanwhile, the percentage of adult children providing basic care for their parents has skyrocketed in recent years.

Nearly 10 million adults age 50 and over care for an aging parent, MetLife says. For the individual female caregiver, the cost impact of caregiving on in terms of lost wages, pension and Social Security benefits averages $324,044. For male caregivers, the figure is $283,716.

The study also identified a dramatic rise in the share of men and women providing basic parental care over the past decade and a half. In 1994, only 9 percent of women and 3 percent of men and were providing care. By 2008, the percentage of women caregivers had more than tripled to 28 percent, while the figure for men had quintupled to 17 percent. “Basic care” is defined as help with personal activities like dressing, feeding, and bathing. Daughters are more likely to provide basic care and sons are more likely to provide financial assistance, the study found.

“Undoubtedly, the impact of the aging population has resulted in increased need within families for family caregiving support,” the study notes.

At the same time, MetLife found that adult children age 50 and over who work and provide care to a parent are more likely to have fair or poor health than those who do not provide care to their parents.

The study was based on an analysis of data from the 2008 National Health and Retirement Study (HRS).

The findings have implications for individuals, employers and policymakers, MetLife concludes. Individuals, it says, should consider their own health when caregiving and should prepare financially for their own retirement. Employers can provide retirement planning and stress management information and assist employees with accommodations like flex-time and family leave.

On the policy side, although only a few states mandate paid family and medical leave, “clearly this policy would benefit working caregivers who need to take leave to care for an aging parent,” the study notes. MetLife also notes that the CLASS Act, a voluntary long-term care insurance program that is part of the new federal health reform law, will provide some coverage for long-term care needs as well as raise public awareness of the issue.

For more on the study, “The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents,” click here.

For more information on estate planning and long-term care options, please contact Jill E. Sugarman, Esq. at 401-421-5115 or by e-mail at JSugarman@McLaughlinQuinn.com.

Who Gets Copies of the Will After a Person Dies?

Monday, June 20th, 2011 by Moore McLaughlin

Many movies and television shows have a scene where a family gathers around a big table after a relative has died to listen to the reading of the will. While this is a great dramatic scene, it doesn’t usually happen like that in the real world. There is no requirement that a will be read out loud to anyone. So what does happen with the will?

Once the will is located, it should be given to the estate’s attorney. Instead of reading the will out loud, the estate’s attorney sends copies of the will to anyone who may have an interest in it. Obviously the person who is named as executor or personal representative is entitled to a copy of the will. He or she is in charge of applying for probate, managing the decedent’s property, and making sure the instructions in the will get carried out.

The estate attorney will also send a copy of the will to anyone who is named as a beneficiary. If any minor children or incapacitated individuals are named as beneficiaries, then their guardians should receive a copy of the will. In addition, if there is the possibility of a legal challenge to the will, the attorney may want to send a copy to any legal heirs, close family relatives, or previous beneficiaries who aren’t included in the will, so that they have notice. This will limit the time frame for them to file a will contest.

Another person who may be entitled to a copy of the will is the estate’s accountant, and if the estate is taxable, then the IRS may get a copy of the will as well. If the will funds a revocable trust, then the successor trustee of the trust is entitled to a copy of the will. Note that once a will is probated, it is available to the public and anyone can read it.

For more information on estate administration, contact Attorney Jill E. Sugarman at 401-421-5115 or by e-mail at JSugarman@McLaughlinQuinn.com.

Be Sure To Update Your Estate Plan When Your Finances Change

Monday, June 20th, 2011 by Moore McLaughlin

In the recent economic downturn, many homes have lost considerable value and stock portfolios have plummeted. If this is the case for you, do you need to change your will? What if your income and assets have increased significantly? If your finances have changed markedly since you wrote your will, you should check your estate plan to see if you need to make any changes.

If your will or estate plan divides your estate into percentages for beneficiaries, then changes in value won’t affect how your estate is distributed. However, if you include specific bequests in your will, a fall or rise in your estate could have consequences. For example, if your estate plan gives $50,000 to your favorite charity and the rest of your estate to your children, a reduction in the value of your estate could mean your children won’t get as much as you intended.

A change in value of assets could also affect your estate plan if you intended to treat your children equally by giving them assets of equal value. For example, suppose your will gives your house worth $500,000 to your daughter and your stock worth $500,000 to your son. If the value of either the house or the stock portfolio increases or decreases significantly in value, your children will no longer receive equal gifts. It is also important to update your estate plan if the overall nature of your assets has changed. For example, if you sold the stock and bought real estate instead, this will affect the distributions to your children.

In addition, if your estate has significantly increased in value, it is important to reassess whether your estate will be subject to estate taxes. In 2008, estates worth more than $2 million are subject to federal estate taxes. In 2009, estates subject to federal taxes must be worth more than $3.5 million. After that, it isn’t clear what the estate tax will be, so it is important to be prepared for any eventuality.

Contact Attorney Jill E. Sugarman at 401-421-5115 or by e-mail at JSugarman@McLaughlinQuinn.com for more information.

Dealing with the Credit Card Debt of Seniors

Wednesday, April 20th, 2011 by Moore McLaughlin

The number of seniors facing credit card debt has been growing. The average credit-card debt for consumers over 65 more than doubled from 1992 to 2004, to $4,907. Credit card debt can be especially problematic for seniors, who typically have a fixed income. If you or someone you love is having trouble making credit card payments, there are several options:

  • Try negotiating. A credit counseling agency or attorney may be able to negotiate with the credit card company for lower fees or interest rates. If the debtor is relying solely on Social Security for income, it may even be possible to have the debt forgiven. Note, however, that if the debt is forgiven it can count as income, which may create tax consequences or affect Social Security payments.
  • Reverse mortgage. If the debtor owns a house and is over 62 years old, a reverse mortgage may provide enough money to pay off debt. With a reverse mortgage, instead of paying the bank money to build up equity, homeowners use the equity in their homes to take out loans. The loan does not have to be paid back until the house is sold or the homeowner dies. While reverse mortgages may look like no-lose propositions on the surface, they also have some significant downsides.
  • Tap into life insurance. Permanent life insurance policies build a cash value, which can be used as collateral for a loan or withdrawn from the account. This money can be used for any purpose, including paying down credit card debt. Keep in mind, however, that loans or withdrawals will reduce the death benefit.
  • Bankruptcy. Filing for bankruptcy is not an easy solution. In 2005, a tough bankruptcy law went in to effect, making it much more difficult to get bankruptcy protection. For example, bankruptcy is available only to individuals whose income is below a certain level, and the homestead exemption, which allows you to protect all or some of the equity in your home, is stricter. Before filing for bankruptcy be sure to discuss your options with an attorney.
  • Do nothing. It may sound crazy, but one option is to do nothing and let the credit card companies sue the debtor. If the debtor owns a house, the court may put a lien on it. If not, the debt may be written off or reduced. An attorney can tell you if this is the right step for you take.

Regardless of what steps the debtor takes, debtors have the right not to be harassed by credit card companies. The Fair Debt Collection Act prohibits certain conduct by credit agencies attempting to collect debts. For example, creditors may contact debtors only between the hours of 8am and 9pm, may not use abusive or profane language, and must stop contacting debtors if the debtors request it in writing.

Responsibility for a Deceased Relative’s Debts

Friday, April 1st, 2011 by Moore McLaughlin

The loss of a loved one is tough to begin with, but if the loved one left debts behind, it can be even tougher. Family members generally should not have to pay for a decedent’s debts, but it is important to know your rights because collection agencies may target the decedent’s relatives.

Usually the loved one’s estate is responsible for paying any debts. If the estate does not have enough money, the debts will go unpaid. The debt collectors may not collect payment from relatives (unless they were co-signers or guarantors). However, if you are the spouse of the decedent, you may have responsibility for any debts that were jointly held. Depending on state law, some assets — such as a house or car — may be exempt from debt collection. You should talk to an attorney to determine your responsibility, if any.

If a debt collector contacts you, give the collector the contact information for the personal representative (also called the “executor”) who is handling the estate. It is the personal representative’s responsibility to make sure all bills are paid. Whatever you do, do not give any personal information to debt collectors. Scam artists sometimes pose as debt collectors to prey on relatives.

If a debt collector won’t stop contacting you, send a certified letter to the collector saying you do not want to be contacted again. Once the collector receives the letter, the collector can contact you only to tell you that there will be no further contact or to inform you of a lawsuit. Report any problems with debt collectors to your state’s attorney general or to the Federal Trade Commission.

Protecting Your House After You Move Into a Nursing Home

Sunday, October 24th, 2010 by Moore McLaughlin

While you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, it is possible the state can file a claim against your house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called “estate recovery,” and given the rules for Medicaid eligibility, the only property of substantial value that a Medicaid recipient is likely to own at death is his or her home. If possible, you should consult with an attorney before entering a nursing home, or as soon as possible afterwards, in order to discuss ways to protect your home.

In those states that have implemented the Deficit Reduction Act of 2005, the home is not counted as an asset for Medicaid eligibility purposes if the equity is less than $500,000 ($750,000 in some states). In all states, you may keep your house with no equity limit if your spouse or another dependent relative lives there.

Transferring a Home
In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. There are circumstances in which it is legal to transfer a house, however, so consult an attorney before making any transfers. You may freely transfer your home to the following individuals without incurring a transfer penalty:

  • Your spouse
  • A child who is under age 21 or who is blind or disabled
  • Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
  • A sibling who has lived in the home during the year preceding the applicant’s institutionalization and who already holds an equity interest in the home
  • A “caretaker child,” who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant’s institutionalization and who during that period provided care that allowed the applicant to avoid a nursing home stay.

While you can sell your house for fair market value, it may make you ineligible for Medicaid and you may have to apply the proceeds of the sale to your nursing home bills.

Lien on Home
Except in certain circumstances, Medicaid may put a lien on your house for the amount of money spent on your care. If the property is sold while you are still living, you would have to satisfy the lien by paying back the state. The exceptions to this rule are cases where a spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house is living there.

Estate Recovery
If your spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house, lives in the house, the state cannot file a claim against the house for reimbursement of Medicaid nursing home expenses. However, once your spouse or dependent relative dies or moves out, the state can try to collect.

But there are some circumstances under which the value of a house can be protected from Medicaid recovery. The state cannot recover if you and your spouse owned the home as tenants by the entireties or if the house is in your spouse’s name and you have relinquished your interest. If the house is in an irrevocable trust, the state cannot recover from it.

In addition, some children or relatives may be able to protect a nursing home resident’s house if they qualify for an undue hardship waiver. For example, if your daughter took care of you before you entered the nursing home and has no other permanent residence, she may be able to avoid a claim against your house after you die. Consult with an attorney to find out if the undue hardship waiver may be applicable.

For more information on Medicaid planning, please contact Elderlaw Attorney Jill E. Sugarman at 401-421-5115 or by e-mail at JSugarman@McLaughlinQuinn.com.

10 Reasons to Create an Estate Plan Now

Sunday, October 24th, 2010 by Moore McLaughlin

Many people think that estate plans are for someone else, not them. They may rationalize that they are too young or don’t have enough money to reap the tax benefits of a plan. But as the following list makes clear, estate planning is for everyone, regardless of age or net worth.

1. Loss of capacity. What if you become incompetent and unable to manage your own affairs? Without a plan the courts will select the person to manage your affairs. With a plan, you pick that person (through a power of attorney).

2. Minor children. Who will raise your children if you die? Without a plan, a court will make that decision. With a plan, you are able to nominate the guardian of your choice.

3. Dying without a will. Who will inherit your assets? Without a plan, your assets pass to your heirs according to your state’s laws of intestacy (dying without a will). Your family members (and perhaps not the ones you would choose) will receive your assets without benefit of your direction or of trust protection. With a plan, you decide who gets your assets, and when and how they receive them.

4. Blended families. What if your family is the result of multiple marriages? Without a plan, children from different marriages may not be treated as you would wish. With a plan, you determine what goes to your current spouse and to the children from a prior marriage or marriages.

5. Children with special needs. Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits, and may have to use his or her inheritance to pay for care. With a plan, you can set up a Supplemental Needs Trust that will allow the child to remain eligible for government benefits while using the trust assets to pay for non-covered expenses.

6. Keeping assets in the family. Would you prefer that your assets stay in your own family? Without a plan, your child’s spouse may wind up with your money if your child passes away prematurely. If your child divorces his or her current spouse, half of your assets could go to the spouse. With a plan, you can set up a trust that ensures that your assets will stay in your family and, for example, pass to your grandchildren.

7. Financial security. Will your spouse and children be able to survive financially? Without a plan and the income replacement provided by life insurance, your family may be unable to maintain its current living standard. With a plan, life insurance can mean that your family will enjoy financial security.

8. Retirement accounts. Do you have an IRA or similar retirement account? Without a plan, your designated beneficiary for the retirement account funds may not reflect your current wishes and may result in burdensome tax consequences for your heirs (although the rules regarding the designation of a beneficiary have been eased considerably). With a plan, you can choose the optimal beneficiary.

9. Business ownership. Do you own a business? Without a plan, you don’t name a successor, thus risking that your family could lose control of the business. With a plan, you choose who will own and control the business after you are gone.

10. Avoiding probate. Without a plan, your estate may be subject to delays and excess fees (depending on the state), and your assets will be a matter of public record. With a plan, you can structure things so that probate can be avoided entirely.

For more information on getting started with your estate plan, contact Estate Planning Attorney Jill E. Sugarman at 401-421-5115 or by e-mail at JSugarman@McLaughlinQuinn.com.

Recent Tax Developments, Part 6

Wednesday, October 13th, 2010 by Moore McLaughlin

The following is the sixth in a series of blog posts providing a summary of the most important tax developments that have occurred in the past three months that may affect you, your family, your investments, and your livelihood. Please call us for more information about any of these developments and what steps you should implement to take advantage of favorable developments and to minimize the impact of those that are unfavorable.

Legislation ends foreign loopholes and advance EITC.

The Education Jobs and Medicaid Assistance Act, which was signed into law on August 10, 2010, includes provisions closing a number of foreign-tax-credit related loopholes and repealing the advanced earned income tax credit (EITC). Specifically, this legislation tightens the rules on the use of foreign tax credits that multinationals use to lower their U.S. tax bill. In general, these provisions attempt to (1) make foreign tax credits (FTCs) available only when the income to which the FTCs relate is actually taxed by the U.S., (2) prevent artificial inflation of foreign source income, and (3) modify the resourcing rules to limit FTCs. Also, under the new law, starting in 2011, eligible low- and moderate-income workers who qualify for the EITC will no longer be able to elect to receive the credit in advance.

For more information, please contact Partner Moore McLaughlin at 401-421-5115 ext 212 or by e-mail at mmclaughlin@mclaughlinquinn.com.

Powers of Attorney Come in Different Flavors

Sunday, June 6th, 2010 by Moore McLaughlin

McLaughlin & Quinn, LLC estate planning and elder law attorney Jill E. Sugarman reminds us that a power of attorney is a very important estate planning tool, but in fact there are several different kinds of powers of attorney that can be used for different purposes. Before executing this crucial document, it is important to understand what your options are.

Power of AttorneyA power of attorney allows a person you appoint — your “attorney-in-fact” or agent — to act in your place for financial or other purposes when and if you ever become incapacitated or if you can’t act on your own behalf. There are four main types of powers of attorney.

  • Limited. A limited power of attorney gives someone else the power to act in your stead for a very limited purpose. For example, a limited power of attorney could give someone the right to sign a deed to property for you on a day when you are out of town. It usually ends at a time specified in the document.
  • General. A general power of attorney is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself. For example, a general power of attorney may give your attorney-in-fact the right to sign documents for you, pay your bills, and conduct financial transactions on your behalf. You could use a general power of attorney if you were not incapacitated, but still needed someone to help you with financial matters. A general power of attorney ends on your death or incapacitation unless you rescind it before then.
  • Durable. A durable power of attorney can be general or limited in scope, but it remains in effect after you become incapacitated. Without a durable power of attorney, if you become incapacitated, no one can represent you unless a court appoints a conservator or guardian. A durable power of attorney will remain in effect until your death unless you rescind it while you are not incapacitated.
  • Springing. Like a durable power of attorney, a springing power of attorney can allow your attorney-in-fact to act for you if you become incapacitated, but it does not become effective until you are incapacitated. If you are using a springing power of attorney, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.

Regardless of what type of power of attorney you use, it is important to think carefully about who will be your attorney-in-fact. Your attorney-in-fact will have a lot of control over your finances, and it is crucial that you trust him or her completely.

While many pre-packaged do-it-yourself power of attorney forms are available, it is a good idea to have an experiences estate planning or elder law attorney draft the form specifically for you. There are many issues to consider and one size does not fit all. For more information, please contact Jill E. Sugarman, Esq. at 401-421-5115 ext 215 or by e-mail at JSugarman@McLaughlinQuinn.com to learn more.