Elder Law and Long-Term Care Planning

Janis Carney, Esq.

Elder Law and Long-Term Care Planning

Los Gatos Recreation CenterSeptember 26, 2011

750 University AvenueSuite 140

Los Gatos, CA 95032(408) 354-0200

www.css-lawfirm.com

Janis Carney, Esq. 1

• Planning Needs *• Elder Care Options• Capacity Issues*

Elder Law


• Estate Planning *• Long-term Care Planning *• Life Care Planning *

3 Levels of Planning


• Trusts- Revocable and Irrevocable• Wills• Durable Power of Attorney• Advanced Health Care Directives

Estate Planning


• Distributing Assets -Retitling

• Creditor claims• Expense, time, oversight

Trust and Estate AdministrationVs. Probate


• Pre-planning for long-term care involves -Legal concerns-Financial concerns

• Budgeting • How to Pay • Asset preservation *

-Eligibility for Medi-Cal and VA benefits *

Long-term Care Planning


• Service-Connected Disability Compensation• Dependent’s Indemnity Compensation *• Pension for wartime * Vets and their surviving spouses • Homebound and Aid & Attendance Supplements• Basic eligibility requirements *• Maximum Pension benefit amounts *• Planning Strategies *

Veteran Benefits


• Surviving Spouse – married and living with the veteran at least one year immediately prior to

death

– $ 1157/mo + A&A &283/mo• Surviving Dependent Parents or Surrogate Parents

– must be financially in need– $ depends on need

• Surviving Dependent Children– minors– “helpless” (disabled from childhood)– separately eligible or eligible with surviving parent

Dependent’s Indemnity Compensation(DIC)


Veteran died * either:• partially because of service connected disability, or• 100% service-connected disabled for 10 or more years

immediately proceeding death, or• While in service

* Provided the veteran's death was not due to the veteran’s own willful misconduct and was not wrongfully or intentionally caused by the claimant

DICRequirement


1. Veteran served on active duty at least 1 day during a designated “wartime” * period – note: there is NO requirement that the veteran actually served in a combat area or even overseas

2. Veteran served continuously on active duty at least 90 days unless discharged early due to a service-connected disability. (note: period may be longer if entered service during or after 1981)

3. Veteran was discharged other than dishonorably 4. Claimant is aged 65 or over OR permanently and totally disabled not due to own willful misconduct 5. Claimant is financially needy [Claimant: Veteran or the surviving spouse or other dependent of a deceased veteran]

VA Improved Pension Basic Eligibility Requirements

Wartime Periods

• World War I: April 6, 1917 through November 11, 1918, inclusive.

• World War II: December 7, 1941 through December 31, 1946, inclusive.

• Korean Conflict: June 27, 1950 through January 31, 1955, inclusive. • Vietnam Era: February 28, 1961 through May 7, 1975, inclusive, if the

veteran served in Vietnam during that period. Otherwise: August 5, 1964 through May 7, 1975, inclusive.

• Persian Gulf War: August 2, 1990 through a (future) date to be prescribed by Presidential proclamation or law.

• Note: The 1983-1984 Lebanon crisis and the invasions of Grenada and Panama are NOT designated as wartime periodsJanis Carney, Esq. 10

Pension with Aid & Attendance Maximum Monthly Benefits

Type of Claim Maximum Monthly Rate

Surviving Spouse who needs A & A* $1,056.00

Married Vet with non-vet spouse who needs A & A* $1,291.00

Single Vet who needs A & A* $1,644.00

Married Vet who needs A & A* $1,949.00

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A & A* = Aid & Attendance


• Basic requirements for-Eligibility *-Share of cost *-Recovery *

• Planning Strategies *

Medi-Cal Long Term Care Benefits


• Applicant aged 65 or over OR permanently and totally disabled

• Applicant requires the level of care of a skilled nursing facility or higher

• Applicant (and spouse, if married) is financially needy • Countable assets under $2000 for single applicant• Countable assets under $111,560 ($2000 for applicant

+$109,560 for well spouse) for married applicant

Medi-Cal Long Term Care Eligibility


Notes: 1. Applicant income does not include his/her

spouse’s income2. Income from rental property is net of the following

amounts paid from the rental income:– Mortgage interest – Property taxes, assessments, and insurance– Utilities– Greater of

• actual upkeep and repairs or• 15% of the gross rental income + $4.17

Medi-Cal Share of Cost Calculation(Co-Payment to Nursing Home)


• All of the Applicant’s income from all sources other than VA

• Less:– Applicant’s medical expenses, such as health insurance

premiums– Spousal and child support payments– Spousal income allowance: the amount needed to bring the

spouse’s income up to the Minimum Monthly Maintenance Needs Allowance (MMMNA) amount, currently $2739/month

– Personal Needs Allowance ($35/month)

Medi-Cal Share of Cost Calculation(Co-Payment to Nursing Home)


1. Claim by state against assets owned by Medi-Cal recipient if single-If single: Due at death

- If married: Deferred during life of surviving spouse-No recovery if recipient has a permanently or totally disabled

child of any age at time of state’s claim2. Claim amount is lesser of

-Amount state paid for recipient on Medi-Cal-Value of assets belonging to recipient at time of death

Medi-Cal Recovery

• Reduce/spend assets• Convent assets• Transfer assets (subject to Medi-Cal penalty if

with in 30 months if applying for Medi-Cal)• Annuities (lots of problems)• Trusts• Reduce income and increase care costs

VA and Medi-Cal Planning



• Focusing on quality of life and care• Coordinating health and personal care with

legal and financial needs- Applications for Medi-Cal and VA

benefits- Preserving Assets to afford better care

Life Care Planning


• Contract (Decision Making) Capacity: Ability to understand and appreciate the– Rights, duties and responsibilities created by or affected by a decision– Probable consequences for the decision maker and, if appropriate, the

person(s) affected by the decision– The significant risks, benefits, and reasonable alternatives involved in the

decision• Testamentary (Will Making) Capacity to

– Understand the nature of the testamentary act– Understand and recollect the nature and situation of the individuals

property – Remember and understand the individuals relations to living decedents,

spouse, and parents and those whose interests who are affected by the will

Capacity Issues2 Levels of Capacity


• A protective court proceeding for incapacitated adults/children

• Adult/child Protective Service involvement• Must prove adult-conservatee is deficient in one of

four areas– Alertness and attention– Information processing– Thought processes– Ability to modulate moods and effect

Conservatorships/GuardianshipsWhen There is No Capacity and Insufficient Legal Documents


• Limited conservatorship• Trusts• Legal & financial issues

-Planning for eligibility for Medi-Cal, SSI, etc.-Authority to act for disabled person

Special Needs PlanningDevelopmentally Challenged, Mentally Ill, Drug Kids and Others On “Public Benefits”


- Family and Friends- Corporate fiduciaries- California licensed individual fiduciaries

Fiduciaries

• Roles• Responsibilities• Private vs. Professional

Education

Elder Law and Long-Term Care Planning