New Post on Estate Planning for New Children

A new post on Estate Planning for new babies is up on our firm's website here. Among the topics addressed are how to nominate a guardian for your child, why you should obtain life insurance, how to pay for college, and how to make sure your teenager doesn't inherit everything at once. 

New articles available on Fabischlaw.com

It's been a while since I've posted any new content on this blog and wanted to make sure that readers were aware that my firm and I are still actively creating new content, but instead of post here, most of the time we post our new material on our firm's website. As always, thanks for reading and let us know if you are interested in learning about a particular area of Massachusetts or Rhode Island Estate Planning or Probate practice.

Federal Estate Exclusion Up Slightly to $5.49M in 2017

The Internal Revenue Service has announced that the basic federal estate tax exclusion for the estates of decedents dying during calendar year 2017 will be $5.49 million, up from $5.45 million for calendar year 2016.  

In addition, if a fiduciary chooses to use the special use valuation method for qualified real property, the available aggregate decrease in the value of the property resulting from the choice may now not exceed $1,120,000, up from $1,110,000 for 2016.

The increase in the estate tax exclusion means that the lifetime tax exclusion for gifts will also rise to $5.49 million, as will the generation-skipping transfer tax exemption. 

The annual gift tax exclusion of $14,000 will not change for 2017. 

For details on many of these and other inflation adjustments to tax benefits, go to: https://www.irs.gov/pub/irs-drop/rp-16-55.pdf

If you want help understanding how these numbers impact your ability to protect your family's legacy from the tax collector, call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Estate Planning Lawyer Matthew Fabisch at 401-324-9344.

What is Medicaid and why would my parents need it for nursing home coverage?

Medicaid (called "MassHealth" in Massachusetts, and "Ritecare" in Rhode Island) is a joint federal-state program that provides health insurance coverage to low-income children, seniors, and people with disabilities. Importantly, unlike almost all other forms of health insurance it covers long-term care in a nursing home for those who qualify.

Because the costs of private long-term care insurance are often too expensive for many families, and because other publicly subsidized programs like Medicare do not cover long term care in a nursing home setting, Medicaid has become the default nursing home insurance for those who can’t afford to pay the approximately $10,000 per month cost of nursing home care. As a result, many people pay out of their own pockets blowing through a life-time of savings for long-term care until they become eligible for Medicaid.

Although their names are confusingly similar, Medicaid and Medicare are very different programs. For one thing, Medicare is an "entitlement" program, that means that all retirees who receive Social Security benefits also receive Medicare as their health insurance. In contrast, Medicaid was initially intended as a form of assistance to the poor. So to be eligible for Medicaid, you must qualify by technically becoming "impoverished" under the program's rules. You can learn more about those rules here. 

Also, unlike Medicare, which is completely run by the federal government, Medicaid is run jointly by the federal government and the states. Each state operates its own Medicaid system, which must conform to federal rules in order for the state to be paid money from the federal government, which pays for about half the state's Medicaid costs. (The state must pay the rest of the cost for the program.) This complicates matters, because the Medicaid eligibility rules are somewhat different from state to state and the rules governing the treatment of asset transfers and homes of nursing home residents keep changing as states try to reduce the impact of these programs on their budgets. To be certain of your rights, consult an expert. He or she can guide you through the complicated rules of the different programs and help you plan ahead.

If you need assistance understanding how any of these issues impact you or a family member's eligibility for nursing home coverage through medicaid, or with a probate,  estate planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Nursing Home Lawyer Matthew Fabisch at 401-324-9344.

What rights do I have as a trust beneficiary?

As a trust beneficiary, you may feel like you are at the mercy of the trustee, but depending on the type of trust, trust beneficiaries may have rights to ensure the trust is properly managed.

A trust is a legal arrangement through which one person, called a "settlor" or "grantor," gives assets to another person (or an institution, such as a bank or law firm), called a "trustee." The trustee holds legal title to the assets for another person, called a "beneficiary." The rights of a trust beneficiary depend on the type of trust and the type of beneficiary.

If the trust is a revocable trust—meaning the person who set up the trust can change it or revoke it at any time--the trust beneficiaries other than the settlor have very few rights. Because the settlor can change the trust at any time, he or she can also change the beneficiaries at any time. Often a trust is revocable until the settlor dies and then it becomes irrevocable. An irrevocable trust is a trust that cannot be changed except in rare cases by court order.

Beneficiaries of an irrevocable trust have rights to information about the trust and to make sure the trustee is acting properly. The scope of those rights depends on the type of beneficiary. Current beneficiaries are beneficiaries who are currently entitled to income from the trust. Remainder or contingent beneficiaries have an interest in the trust after the current beneficiaries' interest is over. For example, a wife may set up a trust that leaves income to her husband for life (the current beneficiary) and then the remainder of the property to her children (the remainder beneficiaries).

State law and the terms of the trust determine exactly what rights a beneficiary has, but the following five common rights are often given to beneficiaries of irrevocable trusts:

• Payment. Current beneficiaries have the right to distributions as set forth in the trust document.
• Right to information. Current and remainder beneficiaries have the right to be provided enough information about the trust and its administration to know how to enforce their rights.
• Right to an accounting. Current beneficiaries are entitled to an accounting. An accounting is a detailed report of all income, expenses, and distributions from the trust. Usually trustees are required to provide an accounting annually, but that may vary, depending on the terms of the trust. Beneficiaries may also be able to waive the accounting.
• Remove the trustee. Current and remainder beneficiaries have the right to petition the court for the removal of the trustee if they believe the trustee isn't acting in their best interest. Trustees have an obligation to balance the needs of the current beneficiary with the needs of the remainder beneficiaries, which can be difficult to manage.
• End the trust. In some circumstances, if all the current and remainder beneficiaries agree, they can petition the court to end the trust. State laws vary on when this is allowed. Usually, the purpose of the trust must have been fulfilled or be impossible.

Forbes.com Article Highlights Family Feuds in the Probate Process

While I work with my clients to eliminate many of these challenges during the estate planning process, I saw the issues highlighted by this forbes.com article on probate and family feuds pop up all too often in my time as a probate judge, among those clients who come to me after a loved one with no estate plan has passed, and when do-it-yourself estate planning documents lack the detail and clarity needed to avoid will contest litigation. As with most aspects of estate planning, in my experience, preventing these issues from becoming problems involves carefully determining your wishes and making sure your will and trust documents are carefully drafted to make sure those wishes are carried out. 

If you want to make sure your estate plan is drafted to avoid these and other potential pitfalls call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Probate Lawyer Matthew Fabisch at 401-324-9344.

Why a will is not enough (or why your estate plan should include a revocable trust)

Your will is a legally binding statement directing who will receive your property upon your death. It also appoints a legal representative, often called an “executor” or “personal representative,” to carry out your wishes. The process by which a person’s property is passed to the people or institutions named in the will is called probate. However, a will covers only probate property. Many types of property or forms of ownership pass outside of probate. Examples of property that pass outside of probate and, thus, are not mentioned in a will, include: jointly-owned property, property in a trust, life insurance proceeds, and property with a named beneficiary, such as IRAs or 401(k) plans.

A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a “trustee,” holds legal title to property for another person, called a “beneficiary.” The rules or instructions under which the trustee operates are set out in the trust instrument. There can be a number of advantages to establishing a trust, depending on the individual situation. Particularly important for the basic estate plan, revocable or living trusts give the donor complete control over the trust. The donor may amend, revoke or terminate the trust at any time. The donor can take back the funds he put in the trust or change the trust’s terms. The donor can also title other assets, including non-probate assets in the name of the trust. Thus, the donor is able to reap the benefits of the trust arrangement while maintaining the ability to change the trust at any time prior to death.

Revocable trusts are generally used for the following purposes:

1. Asset management. They permit the trustee (the person who manages the trust) to administer and invest the trust property for the benefit of one or more beneficiaries of the trust.

2. Probate avoidance. At the death of the person who created the trust, the trust property passes to whomever is named in the trust. It does not come under the jurisdiction of the probate court and its distribution need not be held up by the probate process. However, the property of a revocable trust will be included in the donor’s estate for tax purposes.

3. Tax planning. While the assets of a revocable trust will be included in the donor’s taxable estate, the trust can be drafted so that the assets will not be included in the estates of the beneficiaries, thus avoiding taxes when they die.

4. Disability planning. Wills only provide for death. Trusts can help a person have a plan in place in the event of their own illness.

Medicaid's Rules on Giving Away Your Assets and Qualifying for Nursing Home Long Term Care

In order to be eligible for Medicaid, you cannot have recently transferred assets. Congress does not want you to find out you need nursing home care on Monday, give all your money to your children (or anyone else) on Tuesday, and qualify for to have the government pay for your nursing home long term care by qualifying for Medicaid on Wednesday. So it has imposed a penalty on people who give away assets without receiving fair value in return.

This penalty is a period of time during which the person transferring the assets will be ineligible for Medicaid. The period is determined by dividing the amount transferred by what your state Medicaid program determines to be the average private pay cost of a nursing home in your state.

Example: For example, if you live in a state where the average monthly cost of care has been determined to be $5,000, and you give away property worth $100,000, you will be ineligible for benefits for 20 months ($100,000 / $5,000 = 20).

In 2015 the State of Rhode Island has determined that the average private pay cost of nursing home care is $9,113 per month. Massachusetts, which determines the cost on a daily basis, has determined that the number is $300 per day.

Another way to look at the above example is that for every $5,000 transferred, an applicant would be ineligible for Medicaid nursing home benefits for one month. In theory, there is no limit on the number of months a person can be ineligible.

Example: The period of ineligibility for the transfer of property worth $400,000 would be 80 months ($400,000 / $5,000 = 80).

A person applying for Medicaid must disclose all financial transactions he or she was involved in during a set period of time -- frequently called the "look-back period." The state Medicaid agency then determines whether the Medicaid applicant transferred any assets for less than fair market value during this period. The look-back period for all transfers is 60 months.  

Under the current law, the Medicaid eligibility penalty period will not begin until (1) the person making the transfer has moved to a nursing home, (2) he has spent down to the asset limit for Medicaid eligibility, (3) has applied for Medicaid coverage, and (4) has been approved for coverage but for the transfer. 

Returning to the example above, if an individual transferred $100,000 on April 1, 2014, moves to a nursing home on April 1, 2015, and spends down to Medicaid eligibility on April 1, 2016, that is when the 20-month penalty period will begin, and it will not end until December 1, 2017.

In other words, the penalty period would not begin until the nursing home resident was out of money, meaning there would be no money to pay the nursing home for however long the penalty period lasts. In order to make sure your parent is able to receive the nursing home care they need, it is critical to make sure they make adequate arrangements with an elder law lawyer before gifting away their money or property.  

If you need assistance understanding how any of these numbers impact you or a family member's eligibility for nursing home coverage through medicaid, or  with a probate,  estate planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Nursing Home Lawyer Matthew Fabisch at 401-324-9344.

Key Information for Rhode Island Nursing Home Medicaid Coverage for 2015

Protections for the Community Spouse

Community Spouse Resource Allowance (CSRA):	Minimum: $23,844 Maximum: $119,220
Increased CSRA:	Not permitted.
:	Actuarially sound annuities are permitted.
Monthly Maintenance Needs Allowance:	Minimum: $1,966.25 Maximum: $2,980.50
For explanation, click here.

Transfers

Average monthly cost of nursing home care according to state:	$9,113
For explanation, click here.
Has a Long-Term Care Partnership program been implemented?	Yes
For explanation, click here.

Income

Is the state an "income cap" state?	No
For explanation, click here.

Estate Recovery

Has the state expanded the definition of "estate" beyond the probate estate?	No
Has the state included a hardship provision in its estate recovery plan?	Yes
For explanation, click here.

Home Equity Limit

The state Medicaid program will not cover long-term care services for those with home equity above this limit, with certain exceptions.	$552,000
For explanation, click here. If you need assistance understanding how any of these numbers impact you or a family member's eligibility for nursing home coverage through medicaid, or  with a probate,  estate planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Nursing Home Lawyer Matthew Fabisch at 401-324-9344.

Can I Give My Kids $14,000 a Year?

If you have it to give, you certainly can, but there may be consequences should you apply for Medicaid long-term care coverage within five years after each gift.

The $14,000 figure is the amount of the current gift tax exclusion (for 2015), meaning that any person who gives away $14,000 or less to any one individual does not have to report the gift to the IRS, and you can give this amount to as many people as you like.  If you give away more than $14,000 to any one person (other than your spouse), you will have to file a gift tax return.  However, this does not necessarily mean you’ll pay a gift tax.  You’ll have to pay a tax only if your reportable gifts total more than $5.43 million (2015 figure) during your lifetime. 

Many people believe that if they give away an amount equal to the current $14,000 annual gift tax exclusion, this gift will be exempted from Medicaid's five-year look-back at transfers that could trigger a waiting period for benefits.  Nothing could be further from the truth.

The gift tax exclusion is an IRS rule, and this IRS rule has nothing to do with Medicaid’s asset transfer rules. While the $14,000 that you gave to your grandchild this year will be exempt from any gift tax, Medicaid will still count it as a transfer that could make you ineligible for nursing home benefits for a certain amount of time should you apply for them within the next five years.  

If you think there is a chance you will need Medicaid coverage of long-term care in the foreseeable future, see your elder law attorney before starting a gifting plan. 

If you need assistance with a probate matter, medicaid planning, estate planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Probate Lawyer Matthew Fabisch at 401-324-9344.

The Top 10 Elder Law Decisions of 2014

Below, in chronological order, is our annual roundup of the top 10 elder law decisions for the year just ended. Number three in the list, M.W., was a decision not of a court but of the Director of the New Jersey's Division of Medical Assistance and Health Services.

1. Iowa High Court Rules State May Recover Medicaid Payments From Irrevocable Trust

Holding that the provision of medical assistance creates a debt immediately upon the provision of services to a recipient, the Supreme Court of Iowa rules that the state may recover Medicaid payments from the corpus of a husband and wife’s irrevocable income-only trusts. Estate of Melby (Iowa, No. 12–1593, Jan. 10, 2014).  

2. Long Annuities Not Subject to Medicaid Transfer Penalty While Short Annuities Are

A federal district court rules that five-year annuities purchased by Medicaid applicants are not transfers for less than fair market value, but transfers to 18-, 14-, and 12- month annuities are subject to a penalty period. The court also declines to enforce a state law making it a crime to counsel clients in the disposal of assets. Zahner v. Mackereth (U.S. Dist. Ct., W.D. Penn., No. 11-306 Erie, Jan. 16, 2014). 

3. New Jersey Medicaid Agency Reluctantly Rules That Gift-Annuity Plan Will Work

New Jersey's Medicaid agency holds that a Medicaid applicant who made a substantial gift and purchased an annuity to help pay for the resulting ineligibility period will be eligible for benefits. M.W. v. Division of Medical Assistance and Health Services (N.J. OAL Docket No. 2998-2013, Jan. 28, 2014). 

4. Spouse's Retirement Account Is Available Resource for Purposes of Medicaid Eligibility

According to Arkansas' highest court, the state may count a spouse's retirement account as an available resource when determining a Medicaid applicant's eligibility. Arkansas Dept. of Human Services v. Pierce (Ark., No. CV-13-870, May 29, 2014). 

5. Veterans Benefits Not Countable As Income in Medicaid Eligibility Determination

Veterans pension benefits may not be counted as income for the purposes of Medicaid eligibility if the benefit is the result of unusual medical expenses, a U.S. district court has ruled. Galletta v. Velez (D. N.J., No. 13-532 (RBK/AMD), June 3, 2014). 

6. Transfer of House in Exchange for Promissory Note Is Not Subject to Penalty

A U.S. district court holds that a Medicaid recipient who transferred his house to his daughter in exchange for a promissory note does not incur a transfer penalty and that the promissory note is not an available asset. Peterson v. Lake (U.S. Dist. Ct., W.D. Okla., No. CIV-13-1235-W, June 30, 2014). 

7. State Can Recover From Entire Value of Property in Which Medicaid Recipient Had Life Estate

The Idaho Supreme Court rules that the state may recover Medicaid benefits from the entire value of a property that a Medicaid recipient transferred to his daughter while retaining a life estate for himself. In re Estate of Peterson (Idaho, No. 40615, Aug. 13, 2014). 

8. Penalty Period Does Not Begin Until Medicaid Applicant Spends Down Returned Assets

A federal district court rules that the state can recalculate a Medicaid applicant's penalty period when transferred assets are returned, holding that federal Medicaid law does not directly address the issue. Aplin v. McCrossen (U.S. Dist. Ct., W.D. N.Y., No. 12-CIV-6312-FPG, Aug. 25, 2014). 

9. Medicaid Applicant's Irrevocable Trust Is Not Countable Resource

A Massachusetts trial court rules that an irrevocable trust that contains a provision allowing the trustee to distribute the principal to others for the benefit of the beneficiary is not a countable resource for purposes of Medicaid eligibility. O'Leary v. Thorn (Mass. Super. Ct., No. WOCV2013-02013A, Sept. 18, 2014). 

10. Medicaid Applicant's Penalty Period Not Reduced by Use of Transferred Assets to Pay Assisted Living

A New York appeals court determines that a Medicaid applicant's penalty period should not be reduced even though the applicant's daughter used some of the transferred money to pay for her mother’s assisted living facility. Weiss v. Suffolk County Dept. of Social Services (N.Y. Sup. Ct., App. Div., 2nd Dept., No. 2013-09464, 5418/13, Oct. 1, 2014). 

 If you need assistance with a probate matter, medicaid planning, estate planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Probate Lawyer Matthew Fabisch at 401-324-9344.

Review Your Estate Plan for a Secure New Year

As we bask in the afterglow of a joyous holiday season and turn our thoughts to the new year a review of our estate plans is an essential step to make sure our assets are protected from creditors, taxing authorities, nursing homes, and others who pose a potential threat to the financial well-being of ourselves and our families. 

1. Review and update beneficiary designations on insurance policies, 401(k) plans, and IRAs.

Did you get married this year? Have a child? Get divorced or start a new job? Now is a great time to take stock of the beneficiary designations to make sure that these assets, that pass outside of probate, are directed to go to the person you want. If you entered a second marriage and either of you has kids from a previous relationship you also might consider whether a qualified terminable interest property QTIP trust is helpful to protect those children's inheritance. 

2.Update advanced heathcare directives and guardianship designations. 

The person or persons nominated as your children's guardian need not be the person you choose to otherwise serve as trustee or executor or your estate. Make sure your agent and doctors all have copies so that they know your wishes in the event of an emergency. New in Rhode Island are Medical Orders for Life Sustaining Treatment or MOLST forms. These forms, which supplement a durrable healthcare power of attorney, are printed on neon pink paper and filed with your physician. Once this form is filed it must be followed by all of your medical providers and in any Rhode Island healthcare facility where you go for care.   

3. Review your will and trust documents to make sure they still do what you want them to do. 

Are your basic estate planning documents designed to protect your home and other assets from estate taxes, probate fees, or nursing home expenses? Will they still accomplish this goal? Has someone explained to you how changes in state and federal law will impact your will and trust documents?  While Massachusetts rules have remained largely constant over the past two years, there are at least two major changes to estate planning rules that Rhode Islanders need to worry about. One change eliminated the so called cliff that subjected the entire value of a Rhode Island estate to the state estate tax if the total value of the estate exceeded a certain inflation adjusted value. Now, state estate taxes are only paid on the "excess" value of the estate above $1,500,000. The second significant change is to no longer permit use of the so called "lady bird" deed in qualifying for Medicaid nursing home coverage. While those who had transferred thier title prior to July 1,  2014 are grandfathered, that particular option is no longer available to those who are looking at asset protection estate plans. Understanding how these and other changes impact your existing estate plan will ensure that it still meets your goals.

4. Check will and trust distribution ages.

By law beneficiaries of your will, will inherit the sums you left for them at the age of 18, unless your documents specify otherwise.  For this reason, many people designate that a child's inheritance should be held in trust until they are 25 or 30 in the hopes that they have sowed any wild oats and are just a little bit more responsible. 

5. Revisit your life insurance coverage.  

Many have life insurance policies that are too expensive for the benefit received or are otherwise misaligned with thier financial plan and interests. Others are woefully underinsured, exposing thier family and loved ones to unnecessary risk of financial ruin if something should happen.

Who takes care of my estate if there is no will?

Continuing with our recent theme of Rhode island probate basics, today's post explains who takes care of (administers) your estate if you don't have a will.

If there is no will, then the decedent has not properly named someone to serve as executor and administer the estate. In this case, it is up to the Probate Court where the decedent lived to decide who will be appointed as the administrator of the estate. Because there is no will to execute, the person who administers an estate without a will (an intestate estate) is called an administrator.

By law the Probate Court is to consider the appointment of a surviving spouse or next of kin first. If there is no one fitting that description who is competent, suitable, or willing to serve, or of the surviving spouse or next of kin fail to petition the court to be appointed as administrators within thirty days of the death, the court may appoint any suitable person. 

The administration of the estate of someone without a will follows closely along the lines of that of an estate under a will, with all of the same requirements for filing the Inventory, Accounts, and tax returns. The personal representative collects the estate assets, pays its debts and expenses, and finally distributes the estate to the heirs. 

One important difference, however, is that if there is no will, the decedent could not waive the legal requirement of a surety bond on the executor, which may cause the estate to incur the additional expense of a surety premium in order to have an administrator appointed. Another difference is that executors are usually granted certain powers under the will to transact estate business, such as selling real estate, which the administrator of an intestate estate cannot do without making special, often times more costly, application to the court.

If you need assistance with a probate matter, medicaid planning, estate planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Probate Lawyer Matthew Fabisch at 401-324-9344

  .

What is Probate?

Probate is a legal process where a court overseas the distribution of assets left by a deceased person. Assets are anything of value, like real estate, investments, collections, household goods and furnishings, or any other item of value that a person owns at the time of death. Among the many functions performed by the probate court are:

• Determine the validity of a deceased person’s will.

• Appoint a person, called an “executor” or “administrator,” in Rhode Island, a “personal representative” in Massachusetts, or more generally a “fiduciary,” to collect and list the assets and liabilities of the estate.

• The clearing of title to land, stocks, bank accounts, or other assets and to put the title of these assets in the names of the proper and rightful beneficiaries.

• Supervise the collection of debts owed to the deceased person and add the value received from those debts to the money ultimately paid over to the deceased person’s heirs.

•  Settle any disputes between people who claim they are entitled to assets of the deceased person.

 If you need assistance with a probate matter, medicaid planning, estate planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Probate Lawyer Matthew Fabisch at 401-324-9344.

When Should You Purchase a Long Term Care Insurance Product

The younger you purchase a policy, the lower the premiums will be. But if you are in your 40s, do you want to purchase insurance that you are unlikely to need for 40 years? Given the changes in the long-term care market place and in long-term care insurance itself over the past 10 to 15 years, it is hard to imagine what the world will look like in 40 years.

But if you wait until you are in your 70s, the premiums will be extremely high and you may be uninsurable due to health reasons. In 2005, a policy offering a $143 per day long-term care benefit for 5.5 years, with an inflation rider, cost a 55-year-old a national average of $1,877 a year, while the same policy had an annual premium of $2,003 for a 65-year-old and $2,604 for a 79-year-old.

So, the ideal time is probably in your 50s and 60s. One approach is to see how the premiums fit into your life and other obligations. If you have children who have not yet graduated from college, they will be your major concern. You should carry enough life insurance to see them through. But after your children, if any, are on their own, you might take the funds you were using to pay for life insurance premiums and use them to long-term care insurance premiums.

As with every insurance purchase, if you are considering long-term care insurance, you need to consult with a qualified professional to determine whether you can afford this type of coverage and whether the policy you are considering meets necessary standards. Long-term care insurance has attracted much media attention, and many insurance agents are now selling it. However, long-term care insurance is a complex product that should be approached with caution.

Insurance agents and brokers selling long-term care insurance should be highly trained and know how to recommend the right coverage based on a client's finances and objectives. One factor to consider is whether the agent has a professional designation in providing advice about long-term care. However, recommendations from friends and other advisors are also very important because they will have personal knowledge of the experience and integrity of the people they recommend.

One professional designation is that offered by the Corporation for Long-Term Care Certification, Certified in Long-Term Care (CLTC). The Corporation for Long-Term Care was established by a founding member of the National Academy of Elder Law Attorneys, the country's premier legal organization addressing elder law issues, and is dedicated to training agents to solve clients' long-term care needs. Moreover, the Corporation for Long-Term Care Certification's program is third party, meaning that it is not affiliated with any insurance company or supported financially by the long-term care insurance industry. This is important because you will want an agent who represents a number of insurance carriers so you can choose from a variety of policies.

If you need assistance with Medicaid Planning, Estate Planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Elder Law Attorney Matthew Fabisch at 401-324-9344.

The Tax Deductibility of Long-Term Care Insurance Premiums

Qualified long-term care insurance policies receive special tax treatment. To be "qualified," policies must adhere to regulations established by the National Association of Insurance Commissioners. Among the requirements are that the policy must offer the consumer the options of "inflation" and "nonforfeiture" protection, although the consumer can choose not to purchase these features.
The policies must also offer both activities of daily living (ADL) and cognitive impairment triggers, but may not offer a medical necessity trigger. "Triggers" are conditions that must be present for a policy to be activated. Under the ADL trigger, benefits may begin only when the beneficiary needs assistance with at least two of six ADLs. The ADLs are: eating, toileting, transferring, bathing, dressing or continence. In addition, a licensed health care practitioner must certify that the need for assistance with the ADLs is reasonably expected to continue for at least 90 days. Under a cognitive impairment trigger, coverage begins when the individual has been certified to require substantial supervision to protect him or her from threats to health and safety due to cognitive impairment.

Policies purchased before January 1, 1997, are grandfathered and treated as "qualified" as long as they have been approved by the insurance commissioner of the state in which they are sold. Most individual policies must receive approval from the insurance commission in the state in which they are sold, while most group policies do not require this approval. To determine whether a particular policy will be grandfathered, policyholders should check with their insurance broker or with their state's insurance commission.

Premiums for "qualified" long-term care policies will be treated as a medical expense and will be deductible to the extent that they, along with other unreimbursed medical expenses (including "Medigap" insurance premiums), exceed 7.5 percent of the insured's adjusted gross income. If you are self-employed, the rules are a little different. You can take the amount of the premium as a deduction as long as you made a net profit--your medical expenses do not have to exceed 7.5 percent of your income.

The deductibility of premiums is limited by the age of the taxpayer at the end of the year, as follows (the limits will be adjusted annually with inflation):

Age attained before the end of the taxable year	Amount allowed as a medical expense in
	2011	2012
40 or under	$340	$350
41-50	$640	$660
51-60	$1,270	$1,310
61-70	$3,390	$3,500
71 or older	$4,240	$4,370

 

If you need assistance with Medicaid Planning, Estate Planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Elder Law Attorney Matthew Fabisch at 401-324-9344.

Five Tips For Providing For Children Disabilities

Over at the Fabisch Law Education Rights Blawg we have a post that readers of this blog, particularly those who are parents and grandparents of special needs children, should find informative.

10 Reasons to Create an Estate Plan Today

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.

If you need assistance with Medicaid Planning, Estate Planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Elder Law Attorney Matthew Fabisch at 401-324-9344.

Five Components of a Good Estate Plan

Many people believe that if they have a will, their estate planning is complete, but there is much more to a solid estate plan. A good plan should be designed to avoid probate, save on estate taxes, protect assets if you need to move into a nursing home, and appoint someone to act for you if you become disabled.

All estate plans should include, at minimum, two important estate planning instruments: a durable power of attorney and a will. A trust can also be useful to avoid probate and to manage your estate both during your life and after you are gone. In addition, medical directives allow you to appoint someone to make medical decisions on your behalf.

Will

A will is a legally-binding statement directing who will receive your property at your death. If you do not have a will, the state will determine how your property is distributed. A will also appoints a legal representative (called an executor or a personal representative) to carry out your wishes. A will is especially important if you have minor children because it allows you to name a guardian for the children. However, a will covers only probate property. Many types of property or forms of ownership pass outside of probate. Jointly-owned property, property in trust, life insurance proceeds and property with a named beneficiary, such as IRAs or 401(k) plans, all pass outside of probate and aren't covered under a will.  

Trust

A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a "trustee," holds legal title to property for another person, called a "beneficiary." Trusts have one set of beneficiaries during those beneficiaries' lives and another set -- often their children -- who begin to benefit only after the first group has died. There are several different reasons for setting up a trust. The most common reason is to avoid probate. If you establish a revocable living trust that terminates when you die, any property in the trust passes immediately to the beneficiaries. This can save time and money for the beneficiaries.

Certain trusts can also result in tax advantages both for the donor and the beneficiary. These could be "credit shelter" or "life insurance" trusts. Other trusts may be used to protect property from creditors or to help the donor qualify for Medicaid. Unlike wills, trusts are private documents and only those individuals with a direct interest in the trust need know of trust assets and distribution. Provided they are well-drafted, another advantage of trusts is their continuing effectiveness even if the donor dies or becomes incapacitated. 

Power of Attorney

A power of attorney allows a person you appoint -- your "attorney-in-fact" -- to act in your place for financial purposes when and if you ever become incapacitated. In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.  

Medical Directives

A medical directive may encompass a number of different documents, including a health care proxy, a durable power of attorney for health care, a living will, and medical instructions. The exact document or documents will depend on your state's laws and the choices you make.

Both a health care proxy and a durable power of attorney for health care designate someone you choose to make health care decisions for you if you are unable to do so yourself. A living will instructs your health care provider to withdraw life support if you are terminally ill or in a vegetative state. A broader medical directive may include the terms of a living will, but will also provide instructions if you are in a less serious state of health, but are still unable to direct your health care yourself. 

Beneficiary Designations

Although not necessarily a part of your estate plan, at the same time you create an estate plan, you should make sure your retirement plan beneficiary designations are up to date. If you don't name a beneficiary, the distribution of benefits may be controlled by state or federal law or according to your particular retirement plan. Some plans automatically distribute money to a spouse or children. Although others may leave it to the retirement plan holder's estate, this could have negative tax consequences. The only way to control where the money goes is to name a beneficiary. 

If you need assistance with Medicaid Planning, Estate Planning or other elder law matters call the offices of Fabisch Law, L.L.C. to set up a consultation with Rhode Island Elder Law Attorney Matthew Fabisch at 401-324-9344.