Medicaid and estate planning are two areas of law that intersect with each other in the lives of many families. Simple estate planning can include wills, trusts, healthcare directives and HIPAA forms. More complex estate planning can include trusts to avoid substantial state and federal inheritance taxes for those families who have assets that exceed the exemptions. It can also include trusts to handle assets for children or grandchildren who are too young and inexperienced to responsibly handle money or other assets. Everyone needs this type of planning.
Many people know that Medicare will pay for rehabilitation services in a nursing home if the patient has had a three day inpatient admission to a hospital. A physician must order the care in a nursing home and it must be related to the condition that resulted in the hospital services. Practically speaking, the care must only be available on an inpatient basis. The person must need to receive seven days a week of nursing home care, or skilled therapy five days a week or some combination seven days a week. This is the normal rehabilitation families know about.
A familiar question is “Can I make gifts to my children?” Or, “Can I give my house to my kids to protect it?” An initial question that should be asked is whether you have enough to live on and do those things in life that you want to do, because if you give away assets to your kids, they may not be there when you want it. Not because your kids are untrustworthy, but because bad things can happen to good kids. They can get sick, they can die, they can get divorced, and they might even get sued for a car accident. They cannot prevent any of those bad things from happening. So unless you have a fortune big enough not to worry about your own needs, gifting should only be done after considering your own needs first. After that you need to consider what assets should be gifted, the tax ramifications, and what happens should you need long term care.
Huge numbers of married people have worked hard and saved money through the years in IRA’s, 401Ks, or 403B’s to use in their retirement. IRS and tax consultants call these “Qualified” assets because they qualify under the tax laws to defer income taxes until funds are taken out of the “Qualified” account. But if one spouse’s health declines to the point where long term care is needed, either at home or in an institution, prior planning can make all the difference in the world between losing most of that nest egg to long term care, or preserving it for the healthy spouse to live on.
When it comes to planning an estate there are as many variations as there are people and families. There is no one size fits all, although there are certain planning considerations common to all. If you are single, healthy, and have no children and like most everyone are below $7.1 million of assets, you need the basic documents, which are a will or revocable trust to pass on assets to whoever you wish to inherit. But if you have elderly parents, who are at the age where they may need long term care, it may be wise to set up a trust that will not count against them if they need Medicaid to pay for care. You also need a durable power of attorney so that a trusted person, usually a family member, can handle your financial affairs if you cannot. You also should have a living will naming a health care representative to make medical decisions for you if you cannot. A HIPAA form to talk with medical providers is advisable.
Unless you handle estate planning and elder law issues every day, it can be confusing about what person or document you need to handle your legal and financial affairs, if you cannot handle them yourself due to sickness, death or absence. Let’s start for everyone over 18, the age of majority. Assuming that person is competent, it is wise to have one or more trusted persons named in a power of attorney to handle financial affairs in case of incapacity. That person used to be called an “attorney in fact”, which was confusing, so about five years ago the power of attorney law in Connecticut changed the designation to “agent”..