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  • Archive for July, 2013

    Should you get professional help filing your Medicaid Application?

    Tuesday, July 30th, 2013

    The answer depends on several variables.

    What is Medicaid?

    ·         Medicaid is the needs-based health care benefit for persons who do not have health insurance, or whose insurance does not cover what they need, as in the example of custodial long-term care. Many people also need Medicaid to help pay for custodial care at home or in a skilled nursing facility.

    Is Age a factor?

    ·         Yes. For people less than 65 years of age, who do NOT need long-term care, eligibility and the application process is much less complicated. In many cases people can apply on their own successfully. However, the process becomes much more complicated with applicants 65 years old and up who require custodial nursing care or other long-term care coverage. In these cases, getting an experienced elder law attorney is often a wise investment.

    Determining Eligibility:

    ·         Nursing home Medicaid has many layers of qualifications and rules. Asset and income caps that change yearly determine whether or not an applicant is eligible. Transferring assets may be done to become asset eligible but complications arise when these are not carried out properly and can cause penalties making the applicant ineligible for benefits for up to five years. “Spending down” is another way many choose to “DIY” to qualify for Medicaid. This not only takes time, but depletes the legacy your family member has worked hard to build up. Consulting with an experienced elder law attorney could save that legacy by permitting you to use legal strategies that will accelerate Medicaid eligibility.

    What’s it cost?

    ·         Consulting with an experienced professional opens the way for expert advice on how best to qualify for benefits as quickly as possible along with offering personal assistance in handling even the most difficult of eligibility questions and navigating the long, grueling process.

    ·         The cost of one month of nursing home care can range between $4,800 and $6,000. Retaining an elder law attorney can often speed up Medicaid eligibility by one or even more months. Thus, spending money on a good elder law attorney can actually save money that would have otherwise been paid to the nursing home, or lost due to other “DIY” strategies. Also you can have peace of mind knowing you have a team on your side who’s been down this road many times before and who are advocating for you. This eliminates much of the stress of the application process so you can spend more time focusing on you and your family.

    Where do I find an Elder Law attorney?

    ·         Georgia Attorney Robert M. Goldberg, member of the National Association of Elder Law Attorney’s (NAELA) has been filing applications and helping families for over 14 years. His firm has offices in Atlanta, Griffin, and Peachtree City.  For a consultation to learn how Mr. Goldberg’s experience can help you, please call 770-229-5729 today!

    Alternatives to Disinheriting a Loved One

    Thursday, July 25th, 2013

     In many cases a parent disinherits a child not because the parent hates the child but because the parent feels hurt.  But, there are alternatives to completely disinheriting a child or other loved one.

    The alternative depends on the underlying reason for disinheriting the person. Sometimes, fair does not necessarily mean equal.  Occasionally, I will advise parents to leave more money to a child in need.  For parents facing this type of scenario a “sprinkle trust” may be a good option.  In a “sprinkle trust” an independent trustee assesses the financial situation of the heirs and has the complete discretion to distribute any money in the trust according to each child’s needs.

    Some parents disinherit a child with an addiction or some other difficulty. In this situation the parent is faced with enabling the dependency or disinheriting the child. An alternative to disinheriting the child is creating an “incentive” trust requiring them to go through rehabilitation and agree to random drug testing.  An incentive trust can be used to help the child if they meet the requirements created in the trust agreement.

    Sometimes I meet with a parent who wants to disinherit their child who has a developmental or other disability or a loved one who is in a nursing home so their loved one will stay eligible for Medicaid.  This drastic measure is not necessary. For children or spouses with disabilities such as Down’s syndrome, or Parkinson’s Diseases or Alzheimer’s Disease, a Special Needs Trust can assure their loved one remains eligible for Medicaid benefits.  The trust then pays for things Medicaid will not cover – the additional cost of a private room, private nurses, vacations from the facilities — without causing the patient to lose Medicaid benefits.

    End of Life Planning to Provide for the People You Love: Safeguarding Your Assets for Your Family

    Wednesday, July 24th, 2013

    Creating a Testamentary Special Needs Trust (SNT) is often a good tool to utilize when planning for a spouse or other loved one who may need Medicaid after you are gone.  A Testamentary SNT is a trust created in your will.  Under Federal Law, money in a properly drafted testamentary trust does not count as “resources” of the person applying for Medicaid.  This rule does not apply to revocable trusts.   Assets held in a revocable trust are considered countable resources of the Medicaid applicant.  So, a Testamentary SNT provide a way mechanism for a spouse to leave funds to their surviving spouse or other family member that can be used to pay for services that are not covered by Medicaid without jeopardizing  eligibility for benefits.

    For example, suppose Helen needs to go the nursing home.  George dies first leaving an estate worth $250,000.  If George dies intestate (without a Will) or with the typical “I Love You” Will leaving all assets to Helen, Helen will inherit George’s estate.  Since the Medicaid asset limits are $2,000 for an individual, Helen will no longer qualify for Medicaid benefits.  Helen will have to spend down $248,000 on her nursing home costs until she is below the $2,000 countable resource limit.

    However, if George had created a Will with a SNT for Helen’s benefit, her Medicaid benefits would be protected and there would be $248,000 available for her additional needs not covered by Medicaid.  These may include extra therapy, special equipment, clothing, hearing aids, eyeglasses, dental expenses, transportation services, evaluation by medical specialists or others, legal fees, visits by family members or companions, bed hold at the nursing home, etc.  When Helen dies, any funds remaining in the SNT will pass by the terms of the George’s Will, to his children or other named beneficiaries.  Medicaid is not entitled to any of the funds held in the SNT.

    The information provided above has been a general summary regarding Testamentary Special Needs Trusts for Medicaid planning.   As with any planning for Medicaid, there are many pitfalls and traps for the unwary that must be assessed on a case by case basis. 

    To determine whether a Testamentary Special Needs Trust would be a helpful planning tool for you or a loved one, or if you have other questions about Nursing Home Medicaid, VA Pension benefits, probate, wills, trusts, powers of attorney or health care advance please call Peachtree City Elder Law Attorney Robert Goldberg at 770-229-5729 to schedule your “Discovery Meeting.”

    Lessons Learned from James Gandolfini’s Will

    Wednesday, July 17th, 2013

    No matter how much you have, estate planning is essential.

    When James Gandolfini, the actor who played mob boss Tony in HBO show “The Sopranos”, died of a heart attack at 51 last month, he left an estate valued at roughly $70 million. Commentators have declared his estate plan a “disaster” because the lack of planning leaves a significant estate tax bill. This means the people he loved will receive less money while the government will get a big chunk of his money to use as it sees fit. This violates the first principle of estate planning – staying in control. You only have three choices where your money goes when you die: Your family, charity and the government.  With better planning less money a smaller check would have to be made out to the IRS and Gandolfini’s loved ones and favorite charities would have ended up with more. While many people will not have to worry about paying estate taxes there are other lessons to be learned.

    The next problem is that because Gandolfini had a will based estate plan, in order to pass title to his property to his beneficiaries, his will had to be probated in New York. Once that happened, his will became a public record and now anyone can see who he left his assets to.  To better protect his privacy it would have made sense to have a trust based estate plan. That way probate would not have been necessary and the whole world would not have been able to learn the names of his beneficiaries and how much he left them.


    Another mistake in Gandolfini’s planning is that assets were left outright to his sisters. Because his sisters will own the assets outright , they are subject to being taxed twice: first at their brother’s death and again when they die. To avoid having to pay estate tax twice each sister should have been left her share in a continuing trust. Had this been done the money left to them would not have been in their own estate when they die and wouldn’t be subject to estate tax a second time. Each sister could have been named as trustee of her own trust with broad powers to use the money for their “health, education, or maintenance.”  In addition, through a “power of appointment” each sister could have determined who the trust would benefit and who would act as trustee if there were any assets remaining when they died. Finally,  leaving money to his sisters in a trust rather than outright would have protected the gift from both creditors and predators who might be attracted by his sisters’ new found wealth.


    Another problem is how Gandolfini left assets to his two children- Michael, from his first marriage, and Liliana, who is less than a year old. Under the terms of their trusts, each child gets complete control over millions of dollars the day they turn 21.  It is not a good idea to have a trust end at a certain age because you don’t know what the child will be like. Is a 21 year old mature enough to make decisions on how to spend money? What if they have a drug or alcohol problem?  It would have been better to have a continuing “discretionary” trust with professional trustees to manage and distribute money to the children.