Therefore, getting funding to pay for the high cost of long term care is very important.  The government program that provides help in paying for the cost of long-term care is Medicaid.  Unfortunately, the government has very strict rules about assets that must be met before it will pay for these high costs.  The rules are very different depending upon whether the person is pre-planning or crisis planning.

Medicaid pre-planning occurs where a person who is not yet paying for long-term care takes steps to plan for Medicaid.  Crisis planning occurs where the person plans for Medicaid while already paying for the high cost of nursing home or home care.  Most persons and couples do not engage in pre-planning because they are willing to take the chance that they will not need to deal with long-term care.  However, statistics show that it is more likely than not that those persons over the age of 65 will have these long term care issues.  Therefore, when one considers the advantages of pre-planning it makes sense to plan ahead, or “pre-plan” for Medicaid.

With state and federal budgets running at a deficit, both areas of government have tightened their rules regarding Medicaid planning.  This is especially true with regard to Medicaid crisis planning.  For example, it used to be that a person in a crisis planning situation could save one-half to all of the assets in an estate under a crisis plan, and had no state liens on homes or annuities.  Now, the government has implemented rules that make it unlikely that the person in crisis will be able to preserve over 50% of their assets; there are also rules regarding liens on annuities and homes that could lead to the loss of those items.

However, with respect to Medicaid pre-planning, the main change is that the look-back period for asset transfers has been extended to five years, rather than the previous three years.  One who does pre-planning can still preserve up to 100% of their assets and also preserve their home and annuities.  For most people their savings is therefore in the range of tens of thousands if not hundreds of thousands of dollars when pre-planning. In addition, such pre-planners lessen their stress in being able to qualify for Medicaid in a short period when needed versus the more extensive work required for crisis planning.  Finally, pre-planners reduce the costs of their plans significantly (most pre-plans are one-half to one-quarter of the costs of the labor intensive crisis plans).

In sum, Medicaid pre-planning has immense value because a person’s nest egg can more effectively be preserved to help increase their quality of life in the later years, as well as preserve the entire estate for the provision of a spouse.  In addition the planning is done at a time when there is no crisis and is much less stressful and cost-effective.  At Heritage Elder Law we would be happy to provide a free consultation to review this and other elder law options for individuals or spouses.  Proper information regarding legal rights in this area can make a significant difference in accomplishing the goals of providing the best care for those who need help with long-term care.

There is no known cure for Alzheimer’s disease.  However, the new Oxford study suggests that there is a treatment that can slow the disease or possibly prevent it altogether.   The study found that a vitamin B complex containing extremely high doses of vitamins B6, 9 and 12 taken regularly can slow the process of brain shrinkage by five hundred percent.

However, the study apparently did not measure the participants’ cognitive functions but rather looked at the effect on brain atrophy.   Still, the University of California called the study “significant.”   Researchers do agree that this is a glimmer of hope, but further study is needed.   In an earlier study done by the Journal of the American Medical Association, the same type of vitamin combination was tested and the researchers found that cognitive decline was not slowed.   Nevertheless, one of the participants in the new Oxford study, Mr. John Hough, took a vitamin B tablet with his breakfast for two years.  He was impressed with the results and said: “It seemed to arrest my memory decline.  I stopped taking it after the end of the trial and after a few months I noticed that my memory was getting worse.”

In the past doctors have recommended a variety of healthy lifestyle habits to prevent or slow the onset of dementia, including Alzheimer’s.  These include:  exercise, mental stimulation, lowering blood pressure or cholesterol, eating well, staying socially active etc.  Nevertheless, the data is not conclusive enough to say with any certainty that these items will prevent Alzheimer’s disease.   Now, even though there is no guarantee of results, based upon the Oxford study, elderly persons and those who care for them should pay attention to good levels of B vitamins.

If you or someone you know think they are beginning to experience dementia or Alzheimer’s disease, it is important to get diagnosed as soon as possible.   See your doctor or a geriatric care specialist.  Also important is to make sure that proper powers of attorney and other necessary legal documents are drafted and executed for the person at risk.  At Heritage Elder Law we provide a comprehensive elder care analysis, including a referral to a geriatric specialist, free of charge.  Working together we can provide the legal and medical assistance so needed by the increasing part of our population that is struggling with Alzheimer’s disease.

In addition, at Heritage Elder Law & Planning, PC, we have found that those who do qualify for the Veterans pension have a distinct advantage when it comes to long-term care overall.  This is true because in spite of heroic efforts, approximately seventy-five percent of those getting assisted living care will end up needing nursing home care at some point.  Therefore, planning for the nursing home is essential even for those who will qualify for the Veterans Aid & Attendance pension.

What can veterans do to plan for nursing homecare?  At the same time that they are obtaining the veterans benefits they should be engaging in Medicaid planning.  Without this planning, all assets the individual or couple have are at risk.  Nursing home costs continue to rise – and now are a staggering six thousand ($6000) to ten thousand dollars ($10,000) per month!  That’s eighty to one hundred twenty thousand dollars a year.  Few will be able to preserve any of their estate without Medicaid planning at that rate.

What type of planning should be done for Veterans?  Those who have no assets but have a house and a car should take steps to protect the house from the estate recovery program.  Under that program, if the state ends up paying for one’s care in a nursing home they have a right to put a lien on the house (which is usually the only asset the person has left).  The house can be kept until the person and/or his or her spouse passes away.  However, at that time the state would be able to enforce its lien and obtain a payback prior to any beneficiaries getting part of the asset.  This result can be avoided with careful planning.

Moreover, those who have some additional assets should continue using a special type of asset protection trust when planning for Veterans Benefits.  The assets can be transferred to that trust, permitting immediate qualification for Veterans Benefits.  At the same time, the transfers to the trust start the look-back period for Medicaid (currently five years).  The idea is to use the Veterans Benefits to pay for care for at least the five year period to get through the Medicaid look-back term.  If the person needs long-term care in a nursing home after that point, all assets are protected and Medicaid can be obtained without fear of complete asset depletion.

In sum, when planning for Veterans Benefits through the “Aid & Attendance” program Medicaid planning should be done at the same time.  The recipient of the benefits has the opportunity to obtain not only a valuable monthly pension but to protect all assets in the event that nursing home care and Medicaid are necessary.  Hence, make sure to plan with a competent professional that can guide you through the maze of laws necessary to achieve these goals.  At Heritage Elder Law & Planning, PC, we have years of experience helping individuals in this way and would be happy to assist you in any way we can.

First, Michigan has a comprehensive set of laws regarding wills that went into effect in 1998 (the “Estates and Protected Individuals Code” or “EPIC”).  However, trusts (especially the revocable living trusts) were becoming very common.  People like trust since they permit their owners to avoid probate, reduce taxes, create greater confidentiality, flexibility and reduce contestability.  Therefore, a similar comprehensive body of law was needed for the vast and burgeoning area of trusts.

Second, there were various differences and ambiguities regarding trusts that tended to create or increase litigation.  For example the new trust laws include, but are not limited to, provisions stating that: a) the same standard of competency to make a will is the standard to create a revocable trust, b) trusts that become effective after the date of the new law are revocable unless they explicitly state otherwise; c) a settlor of a charitable trust now has the standing to enforce the terms of that trust; d) EPIC provisions related to “no contest” provisions, ademption and exoneration now apply to trusts as well as to wills; e) there is now a statute of limitations for challenges to the validity of trusts used as will substitutes.

The Michigan Trust Code relies upon an existing law called the “Uniform Trust Code” or “UTC” as the starting point for many of its provisions. However, it did not adopt that law verbatim.  It draws from both the UTC and the Michigan statutory and common law to preserve long-established procedures and practices regarding trusts in Michigan while also filling the gaps and resolving ambiguities.  The drafters of the new Trust Code argue that the new law provides certainty, modernizes the law of trust, provides uniformity with other states, creates a level economic playing field for Michigan banks (eliminating some unfavorable laws that made banks seek other states for corporate trusteeships) while at the same time preserving well established Michigan law regarding trusts.

Those establishing trusts now after the new law will be subject to the provisions of the new law.  However, what about those who already have trusts, do they need to take any action or amend their existing trusts?  Many estate planning attorneys are creating a simple amendment that can be added to existing trust to conform them to the new law.  If your attorney is offering such services it would be wise to take advantage of them.  Or, if there are specific concerns, be sure to discuss them with an estate planning attorney.  At Heritage Elder Law & Planning, we are available to answer any questions you may have pertaining to the new law.

First, there is a new federal long-term care insurance program that can help meet the staggering cost of long-term care.  This part of the new law is called the “Community Living Assistance Services and Supports Act” or the “CLASS” Act.  This federal insurance provides up to fifty dollars ($50.00) per day (approximately $1500 per month) for persons to use when they need help with the activities of daily living.

Significantly, while the new federal insurance will not provide enough to cover the high cost of a nursing home (currently almost $7,000 per month!), it will provide a generous financial supplement to persons remaining at home, in adult foster care or assisted living centers.  Many persons whose fixed incomes are not quite enough to afford these alternative care methods will now be able to do so.

The CLASS Act is designed to help people save for long-term care needs by having premiums deducted from workers’ paychecks unless they opt out.  Enrollees become eligible for the benefits after a five-year period when they “vest”.  The exact amount of benefits will be determined by the Department of Human Services.  Benefits will vary depending upon the level of the individual’s disability.  The program is expected to start in 2011.

Second, the new law works toward closing the prescription drug “Doughnut Hole.” It provides those seniors in the Medicare Part D “Doughnut Hole” with a $250 rebate check starting in 2010.  Seniors who enter the “Doughnut Hole” in 2011 are expected to save over $700.  By 2020 the savings is expected to be $3000 and eventually the “Doughnut Hole” will be closed altogether.

Third, there are additional Medicare benefits.  For example, Medicare beneficiaries will receive greater access to preventive care by elimination of co-payments and deductibles for those services.  There are also important provisions to improve care coordination for those senior citizens who have multiple physicians, effective January, 2011.  Moreover, there is an extension of the Medicare trust fund wherein the life of the fund is extended by almost a decade.

Fourth and finally, the new law expands Medicaid coverage for community (home) based options and gives states incentives to expand these by offering more federal money to those states that do so.  Specifically, the new law authorizes a Medicaid “Balancing Incentive Payment Program.”  States will receive additional federal funds if they shift more of their Medicaid spending toward non-institutional care.  States are encouraged to implement programs wherein individuals can receive care in their homes – a much desired goal for most senior citizens.  What changes will be made in Michigan will depend upon to what extent, if any, our State elects to participate.

At Heritage Elder Law we are committed to keeping you abreast of significant changes in the law that affect the elderly and those who care for them.  Working together we can educate and empower the senior population and their caregivers to more effectively provide for this fastest growing segment of our population.

In the past, people with early-onset Alzheimer’s have had difficulty when applying for Social Security benefits.  While they may have eventually been able to receive the much-needed benefits, it was usually after first being denied and having to file an appeal. This process could take several years, during which time medical care and other necessities were often compromised.

Thanks to the efforts of the Alzheimer’s Association, which has been working diligently since 2003 to improve the Social Security Disability process, early-onset Alzheimer’s patients now have more options for their care.

Alzheimer’s is the seventh leading cause of death in the United States.  There are now 5.3 million Americans living with Alzheimer’s disease – and the number is expected to continue growing until it reaches 16 million by year 2050.  Most commonly, Alzheimer’s disease affects individuals 65 and older.  Early onset Alzheimer’s disease is a rarer form of the brain disorder in which symptoms appear prior to age 65, even occurring in individuals in their 30’s and 40’s.  “With the aging of the baby-boomers, we are beginning to see more, younger working Americans diagnosed with this devastating disease,” said Social Security Commissioner Michael J. Astrue.

Unfortunately, early onset Alzheimer’s is not as easily diagnosed because the medical providers aren’t usually looking for brain disorders in younger people.  Nevertheless, the symptoms do progress and can become severe enough that the person cannot hold gainful employment.  Eventually custodial care and nursing home care become issues as the person needs to be in a safer environment for protection from the various hazards of everyday life.

For families that do find early-onset Alzheimer’s is an issue, correct estate planning is essential.  Preparation for long-term care should be started.  While hoping for the best the family should plan for the difficulties that occur when the disease progresses to the advanced stages, including but not limited to assisted living and/or nursing home.  Proper legal authority should be granted via powers of attorney before competency becomes and issue.  Finally, if the person is diagnosed with early-onset Alzheimer’s disease severe enough to prevent employment, the person should file for Social Security Disability benefits.   If you or someone you know is entering this challenging situation, call Heritage Elder Law & Planning toll-free at 877-731-4357.

One problem with this approach, however, is that family caregivers are often forced to cut back on their employment or even quit their jobs in order to provide for their parents.  Especially in a difficult economy this can create financial hardship for the caregiver and that person’s immediate family.  Hence, many persons ask if there are any government programs that will pay family caregivers to provide care for their loved ones.

Medicaid does have a home and community based “MI Choice” waiver program.  To be eligible, a person cannot have over $2022 per month in income and more than $2000 in countable assets (spouses can keep greater amounts).  The program does pay for a certain amount of care for elderly or disabled persons in the home, which can benefit family caregivers by giving financial support and avoiding caregiver burnout.  Respite services, which allow for out-of-home respite care up to 30 days per year, medical supplies and equipment, and counseling can also benefit the family caregiver. However, MI Choice will not pay family members to provide homemaker or chore services or personal care.

Medicaid has some regulations that permit family caregivers to be paid directly out of the assets of the elderly person.  Medicaid requires that a person spend down assets to $2000 or less before it will pay for nursing home care.  One can be in a nursing home and do this spend-down or one can pay their family to provide care in the home while spending down these assets.  The payments count toward Medicaid spend-down and will not disqualify the person from Medicaid when nursing home care is needed.  However, there are rules for this that are strictly followed and it would be wise to seek legal counsel before attempting such payments.

The Veteran’s Aid and Attendance program is another way of paying for family caregivers.  The pension requires that the applicant meet the income and asset requirements, but with competent elder law assistance most can qualify.  The pension will pay for in-home care by a non-family provider or a family provider, or (especially to help avoid caregiver stress) a combination of both.  Currently a veteran or the veteran’s surviving spouse can receive between $1000 and $2000 a month to help pay for care in the home or in an assisted living facility, tax-free.

Through careful planning and foresight, families can make use of available programs to provide in-home care for their elderly loved ones for as long as possible with less stress on the family caregivers.  If you or someone you know could be helped by skilled Medicaid planning or Veterans Benefit planning, please contact Heritage Elder Law toll-free at: 1-877-731-4357. 

U.S concern for veterans goes back even further in our history.  For example, President Abraham Lincoln once said that we must strive to care for and “to honor him who has borne the wounds of battle and his widow and his orphan.”  Toward that end, in I930 the U.S. officially established the Department of Veterans Affairs.  The Department, now known as the Veterans Administration (“VA”) has developed numerous programs to help veterans, their spouses and dependent children.

At the present time there are numerous veterans who served our country during wartime that are aging.  Many of these aging veterans need help with long-term care and therefore the VA has provided the following benefits:

A. Free Medical Care and Prescription Drug Coverage.  In a day of burgeoning health care costs Veterans should take advantage of the medical and prescription help they can get from the VA.  Your local veterans service organization can provide details and help in qualifying.

B.  State Veterans Homes.  Each state in the union works with the VA to help build and support state veterans homes.  These homes provide nursing care for those vetgerans struggling with long-term disabilities.  Here in Michigan we have the “Grand Rapids Home for Veterans” (616-364-5400) and the “D.J. Jacobetti Home for Veterans” (Marquette, MI, 906-226-3576).

C.  Veterans Disability Income Programs.  If a veteran is at least 10% disabled due to an injury inflicted while in the service then that veteran is entitled to a special service connected pension.  However, even if a veteran was not wounded in the service, that veteran is entitled to a special monthly pension called the “Aid & Attendance” pension. This benefit applies to those veterans who served at least one day during wartime (but not necessarily in battle).  Those who are 65 and older are automatically considered “disabled” and meet the medical criteria.  However, those who need help with the activities of daily living — for example, needing home care or assisted living –  can qualify for a pension of up to $2000 a month or more.  This is a tremendous help to senior veterans who struggle to pay for their expensive care needs.

To qualify for the Aid & Attendance pension the veteran must also meet an income and asset test.  Those who have over $2000 a month in income or over $20,000 in assets will generally not qualify immediately.  However, there are legal exceptions and options that permit almost all veterans to qualify for the Aid & Attendance pension. At Heritage Elder Law we are trained and skilled at helping virtually all veterans or their spouses — regardless of their income or asset levels — to qualify for this exciting and generous benefit.  Moreover, we provide free help and assistance to those wishing to file an application for the Aid & Attendance pension.

Our country has honored those who have served us with a day known as “Veterans Day”.  Furthermore, it has provided numerous financial and medical benefits.  Our veterans deserve to be educated about the various financial, legal and medical options available to them through the VA.  They deserve help in obtaining what is rightfully theirs.  Heritage Elder Law is proud to be a part of that process.

VSOs provide extensive support to numerous veterans’ organizations around the state, including but not limited to: the VFW, American Legion, AmVets, etc.  They provide free assistance to veterans in need, including help in filing applications for the aid & attendance pension, health and pharmacy benefits, burial and memorial benefits, survivors’ benefits, and numerous others.  They work collaboratively with the Department of Veterans affairs to help veterans and their dependents gets the benefits they deserve.  In the past, 75 to 90 percent of all claims originated with Veterans’ Service Organizations.

However, on May 5^th, 2009 Governor Granholm issued Executive Order 2009-22.  The order mandated that funding for VSOs be cut by about twenty-five percent.  As a result, many VSOs had to downsize their staff and operations.  The cuts included one million dollars that had previously gone to eleven different veterans service organizations including: American Legion ($226,500); Disabled American Veterans ($187,200); Marine Corps League ($86,000); American Veterans of WWII, Korea and Vietnam ($118,700); Veterans of Foreign Wars ($226,400) Michigan Paralyzed Veterans of America ($42,500) Purple Heart ($40,400); Polish Legion of American Veterans ($10,500); Jewish Veterans of America ($10,500); Vietnam Veterans of America ($40,800); Catholic War Veterans ($10,500).

In light of the recent budget cuts, the VSOs can no longer be available to the extent that they were in the past.  However, veterans can still call their local Veterans’ Service Organizations and see to what extent help can be provided. Moreover, there are various independent groups, including elder law attorneys, who will give help with veterans benefit applications at no charge to the veteran.  Finally, veterans and their families can still get help through the federal system of the Veterans’ Administration in Detroit.

While attaining help for disabled veterans is becoming harder and more complicated, expert guidance and assistance is still available.  Heritage Elder Law remains committed to serving those who fought for our country in its times of deepest need.

1.   Estate Recovery – While the estate recovery law that permits the state to “take” the home was passed in September of 2007, the law is not currently being enforced.  However, the state is working with the federal government to find a version that will be approved by the federal government.  Apparently Lansing is working on some additional legislation.  When that passes and is approved it can be applied for care costs dating retroactively back to September of 2007.

2.   De Minimis Transfers – I receive constant questions about how much a person can give away and not be penalized from Medicaid.  While there used to be a limit below which Medicaid would not give a penalty, that law is now changed.  The new Medicaid law states: “There is no minimum amount of resource transfer before incurring a penalty, determine a penalty on any amount of resources that are transferred…”  This means that even small gifts to one’s church or at Christmas time could create a problem.

3.   Return of Resources – A common problem we encounter when representing clients who are applying for Medicaid is that they may have transferred some resources within the look-back period.  In the past we could correct the transfer by simply returning some or all of the resources and eliminating the resulting penalty.  Now that has changed and cancellation of the penalty has become more difficult.  Under a new law effective in April of 2009, if one has transferred resources within the look-back period, the full amount of the resources has to be returned and “retained” in order to cancel any resulting penalty.  However, resources that never were transferred do not have to be “retained”.

The result of the new rules means that it is even more important to get competent legal advice before implementing actions or estate plans that could impact Medicaid eligibility.  For those that have already incurred liability because of previous actions, expert guidance will be needed to avoid the harsh effects of those actions.  Heritage Elder Law is here to assist those who need such guidance