Tuesday, May 19, 2015

A Trust that Protects your Home from Care Costs

The Home Protection Trust

The numbers are terrifying. If you are 65 or older there is a 70% chance that you will need long term care at some time during your remaining life. By “long term care” I mean the kinds of help people need if they have a prolonged physical illness, disability or cognitive impairment (such as Alzheimer’s disease) that requires ongoing support.

Long term care is very costly. The average annual cost of a semi-private room in a Pennsylvania nursing home is now over $100,000. And even if you stay at home, care can place a big financial, physical, and emotional burden on your family.

Have you planned for the likelihood that you will need long term care someday?

For many people, their home is their major and most precious asset. Unfortunately, without advance planning, your home may be at risk of being lost to the cost of long term care.

Part of the reason your home is so vulnerable is a government program called Medicaid Estate Recovery. Since nursing homes and other forms of long term care are so expensive, many people run out of money and end up needing government assistance (Medicaid). But, when you die, Medicaid requires repayment for the money it spent on your nursing home or other forms of long term care. The government can force your home to be sold in order to repay Medicaid.

Some people try to protect their home by deeding it to their children. But this can create a host of Medicaid and tax problems and can subject your home to loss due to unanticipated events in your children’s lives. See, my earlier article “Should I Give My Home to My Children?”

For most seniors, a better way to protect your home is to deed it to a special kind of trust. [The legal term “trust” describes the holding of your property by a trustee (who can be one or more of your children) in accordance with the provisions you create in a written trust instrument.]

Using a trust, your home (and other assets if you wish) can be protected from estate recovery when you die, even if you had a long stay in a nursing home. And since the trust, rather than a child, is the owner of the property it is protected from bad things that may happen in your child’s life as well.

It’s important to note that the kind of special “Home Protection Trust” I am describing is very different than the common revocable “living trust” that many people have already set up. A revocable living trust provides for management of assets but does NOT protect the assets from care costs. The Home Protection Trust is an irrevocable trust specifically designed to protect its holdings from loss if you ever have to apply for government assistance to pay for your long term care costs.

When you transfer your home to the trust you don’t have to sell it. If you put financial assets in the trust, you don’t have to sell or change your investments. What you own has merely been moved under the protective umbrella of the trust. The trust can sell things held by it, and buy new things. If your home is held under the trust, and you decide to move, the trust can sell it and buy a new one.

I’ve created many of these trusts for both my clients and members of my own family. They work well, especially if they are set up far in advance of the need for long term care. Most people don’t even notice that they have a trust once it has been set up. It changes things just enough to protect your assets from nursing home costs, from issues with your children, and from other risks.

With advance planning and expert guidance seniors can ensure that their homes will stay in the family after their deaths and not be lost to estate recovery.

If you reside in Pennsylvania, set up an appointment with one of the elder law attorneys of Marshall, Parker and Weber, and find out if a home protection trust is right for you and your family. If you are over age 65, the time to plan is now.

Friday, May 15, 2015

Community Spouse Minimum Income Allowance to Increase on July 1, 2015

When a nursing home resident is receiving Medicaid long-term care benefits, most of their income must be paid to the nursing home each month and applied to the cost of their care. This is sometimes referred to as the resident's "patient pay liability."  
But, if the nursing home resident is married, this patient pay liability may be impacted by community spouse income protections found in federal and state law. 
The community spouse is entitled to retain a certain minimum level of income called the Monthly Maintenance Needs Allowance (MMNA). If the community spouse's own income is insufficient to provide this allowance, income can be diverted to the community spouse from the institutionalized spouse.

The MMNA is set at 150% of the federal poverty level for a family of two plus an excess shelter allowance, if applicable. The Pennsylvania MMNA is adjusted on July 1st of each year to keep up with inflation adjustments to the poverty level. For the period July 1, 2014 until June 30, 2015 the minimum allowance has been $1,967 per month.

In January 2015 the Department of Health and Human Services announced that the 2015 federal poverty guideline for a family of two is $15,930. (It’s higher if you live in Hawaii or Alaska). This means that effective July 1, 2015 Pennsylvania should increase the community spouse minimum MMNA to $1,991.25 per month
Pennsylvania usually “rounds up” amounts under one dollar so the working allowance will likely be set at $1,992 per month.
A standard monthly shelter allowance is built into the minimum MMNA. The actual MMNA allowance can be higher than the minimum if the community spouse has high housing cost and is entitled to an “excess shelter allowance.”
The MMNA can also be increased in situations where the community spouse can show “exceptional circumstances resulting in significant financial duress.” 42 U.S.C. § 1396r-5(d)(2)(B). Several Pennsylvania appellate court cases have dealt with the issue of whether a community spouse has such exceptional circumstances. See Davis v. DPW (776 A.2nd 1026 (Pa.Cmwlth. 2001) and Kuznick v. DPW (5A.3d 832) (Pa.Cmwlth. 2010).
The MMNA can also be increased by judicial court-ordered support under 42 U.S.C. § 1396r-5(d)(5). An increase in the MMNA via judicial order does not require a showing of “exceptional circumstances resulting in significant financial duress.”   
The minimum income allowance rules are part of the federally mandated “spousal impoverishment” protections that were enacted in 1988 to limit the potential for impoverishment of spouses of nursing home residents. 

Monday, May 4, 2015

Using Twitter to Stay Informed about Elder Law Developments

I think Twitter is a great and fun way to keep up with current news and ideas. By following the right people you can keep up on what’s happening on subjects that interest you. And because Twitter is so restricted (tweets are limited to a maximum of 140 characters) that it takes only a few moments to use. 
Twitter is all about quick reads, not about extended discussion. You can check in to twitter on your phone or tablet during a TV commercial or while you are standing in line at the grocery.
Twitter is filled with serious posters who provide links to other content on the web. When you follow someone, their posts appear in your twitter stream. If you follow the right people, you will get a continuous stream of news and links about current developments and ideas in elder law (or whatever other subjects interest you).   
If you follow me - @ElderLawGuy you can see who I am following. This includes journalists, other lawyers, associations, agencies, legislators, courts, and advocates who post on elder law subjects. Choose a few who interest you, click on them, and then click on "follow." Once every day or two take a look at the tweets of the people you are following. See what links they are providing – and what posts they are re-tweeting - this will lead you to other people to follow. 
If you follow more than 25 people, consider setting up twitter “lists” to keep them organized into categories.
You don’t have to worry about tweeting yourself. If you want you can just “retweet” interesting things that have been posted by other users (it takes about 5 seconds to do a retweet). When you “retweet” another user’s message, their message is shared to all of the people who follow your account. It also pings the original user to let them know that you shared their message. (They appreciate that.)
In my opinion, the best part of twitter is the information you are receiving from it, not what you are posting. You benefit most from the information provided by the people you follow, not from the information you post.
While Twitter only takes a few moments, you do have to check it from time to time. If you set up an account, but never look at it, why bother.
Here are examples of some elder law related Posters you might want to follow:
@CQHealthTweet (Congressional Quarterly’s Health Beat tweets)
@KaiserFamFound (Kaiser Family Foundation)  
@RetirementRsrch (The Center for Retirement Research at Boston College)
@hillhealthwatch (The Hill Healthwatch)
@CMSGov (Centers for Medicare & Medicaid Services (CMS)).
@AARPpolicy (Research and analysis from the AARP Public Policy Institute)
@jrovner (Julie Rover of Kaiser Health News)
@ConsumerVoices (Advocacy Group for Quality Long-Term Care)

@NCOAging (The National Council on Aging)

Thursday, April 23, 2015

Government to Slowly Remove SSN’s from Medicare Cards

In a previous blog article I complained about Medicare’s inclusion of my complete Social Security number (SSN) on my Medicare identification card. See, Your Medicare Card: What does the letter after the SSN mean? (February 3, 2013).
Here was my complaint -
Another good question is: why does the government keep showing social security numbers on the Medicare cards we have to carry and use so often, given the serious threat of identity theft? Unfortunately, I don’t have a good answer for that. 
I do understand that changing to a new numbering system would cost the government some money and require reissuance of over 50 million cards. But exposing Medicare beneficiaries to an increased risk of identity theft is just unacceptable. Wouldn’t it be nice if Congress required a change in this dangerous practice as part of any upcoming changes to the Medicare program?  
Well, Congress has now addressed the problem. Section 501(a) of the recently enacted “doc fix” law - The Medicare Access and CHIP Reauthorization Act of 2015 – mandates that the “Social Security account number (or derivative thereof) is not displayed, coded, or embedded on the Medicare card issued to an individual who is entitled to benefits . . .”
Thank you Congress!
Now for the bad news. The law gives Medicare up to four years to start issuing cards with new identifiers to new Medicare beneficiaries. And it gives Medicare an additional four years to reissue cards held by current beneficiaries. 
This means current beneficiaries (like me) may have to wait for up to 8 years to get a Medicare ID card that does not include my SSN. That is a heck of a long time.
What should you do while you are waiting (for up to 8 years) for your new safer Medicare ID card. For myself, I’m going to continue to follow the suggestion I made in my earlier post:  
In the meantime, we are stuck with seeking other ways protecting our identity and privacy. Personally, I don’t carry my original Medicare card. I carry a photocopy from which I have removed the social security number.  I give my social security number verbally to the health care provider at the time I present a photocopy of the card and request services.
Not a perfect plan, I’ll admit. But, at least it may help protect me if my wallet gets lost or stolen.
Further Reading:
Your Medicare Card: What does the letter after the SSN mean?, Marshall Elder and Estate Planning Blog, February 2, 2013
New Cards for Medicare Recipients Will Omit Social Security Numbers, Robert Pear, New York Times, April 20, 2015

Tuesday, April 21, 2015

Taxes on Gifts: Tips for Understanding the Rules

People are often confused about the laws that apply when they make a gift. Some are surprised to learn that gifts are regulated at all. Unfortunately there are rules - both in terms of taxes and Medicaid qualification. And the laws are complicated.  
Adding to the confusion - the tax rules related to gifts are very different from the rules that apply to Medicaid eligibility. This article discusses the tax rules. See my earlier blog post: Don’t Confuse Medicaid Rules with Tax Rules, for more on the Medicaid disqualification rules that can apply when you make a gift.
Here are some tips that should help you understand whether your gift is going to taxable. 

State Gift Taxes

In general gift taxes laws are federal not state. 
Most states do not tax gifts made from detached or disinterested generosity. However, transfers of cash or property in payment for services, or as an inducement to perform services, may be subject to state (and federal) taxes. 
As far as I am aware Connecticut is currently the only state that imposes a state gift tax. The Connecticut tax applies when the aggregate amount of the Connecticut taxable gifts made on or after January 1, 2005, exceeds $2 million. 
Pennsylvania residents should note, however, that gifts made within one year of the death of the donor are subject to PA inheritance taxes to the extent they exceed $3,000 per donee. A few other states also impose some form of so called “gifts-in-contemplation-of-death” rules similar to that of Pennsylvania. 

Federal Gift Taxes

Here are some useful tips (drawn from information provided by the IRS) about gifts and the federal gift tax.

1.    Nontaxable Gifts.  The general rule is that any gift is a taxable gift. However, there are exceptions to this rule. The following are not taxable gifts:
  • Gifts that do not exceed the annual exclusion (see below) for the calendar year,
  • Tuition or medical expenses you paid directly to a medical or educational institution for someone,
  • Gifts to your spouse (for federal tax purposes, the term “spouse” includes individuals of the same sex who are lawfully married),
  • Gifts to a political organization for its use, and
  • Gifts to charities.
2.    Annual Exclusion.  Most gifts are not subject to the gift tax. For example, there is usually no tax if you make a gift to your spouse or to a charity. If you give a gift to someone else, the gift tax usually does not apply until the value of the gift exceeds the annual exclusion for the year. For 2014 and 2015, the annual exclusion is $14,000.

3.    No Tax on Recipient.  Generally, the person who receives your gift will not have to pay a federal gift tax. That person also does not pay income tax on the value of the gift received.

4.    Gifts Not Deductible.  Making a gift does not ordinarily affect your federal income tax. You cannot deduct the value of gifts you make (other than deductible charitable contributions).

5.    Forgiven and Certain Loans.  The gift tax may also apply when you forgive a debt or make a loan that is interest-free or below the market interest rate.

6.    Gift-Splitting.  You and your spouse can give a gift up to $28,000 to a third party without making it a taxable gift. You can consider that one-half of the gift be given by you and one-half by your spouse.

7.    Filing Requirement.  You must file Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return, if any of the following apply:
  • You gave gifts to at least one person (other than your spouse) that amount to more than the annual exclusion for the year.
  • You and your spouse are splitting a gift. This is true even if half of the split gift is less than the annual exclusion.
  • You gave someone (other than your spouse) a gift of a future interest that they can’t actually possess, enjoy, or from which they’ll receive income later.
  • You gave your spouse an interest in property that will terminate due to a future event.

Further Reading:

Much of the information in this article is drawn from, Seven Tips to Help You Determine if Your Gift is Taxable, IRS Tax Tip 2015-51.
For more information, see Publication 559, Survivors, Executors, and Administrators.
See also, “Permanent” Gift and Estate Tax Rules Set By New Fiscal Cliff Law, Marshall Elder and Estate Planning Blog, January 10, 2013.