Florida Asset Protection & Estate Planning Blog

Medicaid Immersion Camp

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-05-06T18:48:59Z

Steven Covey, in his best seller "The Seven Habits of Highly Effective People," maintains that to be highly effective you must take time to "sharpen the saw." Last week I sharpened the saw. Three intense days of immersing myself, along with 29 other lawyers from around the country, in the issues, planning and implementation of practices, procedures and techniques designed to help someone legally qualify for Medicaid benefits to pay for nursing home costs, while preserving assets and income for the spouse who is not in the nursing home, or for other family members so they can provide additional support for the parent or spouse in the nursing home beyond what Medicaid provides.

I've been helping people qualify for nursing home Medicaid benefits for about the past 15 years. I've read the cases, read the Medicaid manual and the applicable state and federal legislation. I thought I was pretty well "on top" of the Medicaid world for planning and implementing planning techniques for qualifying someone for Medicaid benefits to pay for nursing home costs.

It is nothing short of amazing how much was covered in those three days. Thanks to Valerie Peterson, the Executive Director of ElderCounsel, LLC, Marty Wormer, one of the preeminent elder law attorneys in the country from the Maine Center for Elder Law, and Steve Riley, an attorney coach with Atticus, for providing one of the most informative, intensive, and action oriented continuing legal education workshops/seminars that I have ever attended.

We covered every possible technique available for planning, preserving assets and creating eligibilty for Medicaid benefits for nursing home care for someone who is already in, or about to enter, a nursing home; and we learned how to proactively plan for potential long term care costs that might occur in the future.

All of the current state of the art planning options involving personal care contracts, qualified income trusts, irrevocable income only trusts, and many other tools and techniques were presented during the conference.

When to properly use enhanced life estate deeds ("lady bird deeds"), and when not to use them, were thoroughly examined. We learned more about how to ensure that a Medicaid spend down plan achieves its objectives in accordance with the legal requirements of the Medicaid law.

Of particular importance is the extreme difficulty incurred by some, and sometimes the complete loss of benefits for others, that arises out of not having a proper durable power of attorney that allows the attorney in fact (your agent) to sign various documents, including a qualified income trust. Without those specific powers set forth in the power of attorney, it sometimes becomes necessary to establish a court supervised guardianship so that appropriate documents can be signed on behalf of the nursing home resident. The guardianship can result in substantial costs, loss of control, and loss of assets. A properly drafted durable power of attorney can help avoid the guardianship and allows the nursing home resident to qualify for Medicaid benefits to pay for the cost of the nursing home.

We learned about nuances of the Medicaid laws, which are second in complexity only to the Internal Revenue Code, how to arrange assets to meet the requirements of the law, to reduce or eliminate penalties that might have been incurred, and overall how to provide relief for family members who are stressed out over the potentially devastating cost of nursing home care for their loved one. We also learned how to protect the financial security of the spouse who is living in the homestead from the cost of the nursing home care for the other spouse.

I know that as a result of this program, I will provide a higher level of planning expertise and implementation for my clients than ever before, which will be of obvious and signficiant value to them and their families. Thank you Valerie, Marty and Steve!

Copyright 2011 - The Coleman Law Firm, PLLC

Wills and Trusts Online Documents Wins ABA eLawyering Award

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-04-23T12:00:31Z

A Lexington, Kentucky, based law firm, Hargrove Madden, has been named the recipient of the 2012 American Bar Association eLawyering Award, given annually to recognize innovative delivery of personal legal services. Special attention is given by the ABA to firms that serve both moderate income individuals and the middle class.

Roger Madden, a founding partner who holds an advanced tax degree, added: “Everyone can benefit from a Last Will and Testament, a Living Trust, as well as medical and financial Powers of Attorney. Together, these documents can help families avoid some of the burdens associated with estate administration and the probate process. With the right technology, requisite security and systems in place, an estate plan can be made readily available to anyone who has internet access. We’re pleased that the ABA has endorsed our efforts to bring legal services to a broader audience.”

Although Hargrove Madden is focused on high net worth estate planning in its traditional practice, the firm began its online legal service last year. The challenge was to incorporate the advantages of an online service while maintaining quality.

The cost for online services is about 50 percent less than the traditional office visit approach. You can read more about the Hargrove Madden effort in this article in the Commerce Lexington newspaper: "Lexington-based law firm creates online legal practice, wins ABA’s eLawyering award."

The Coleman Law Firm also provides a low cost alternative to the traditional office visit. Through our website you can obtain quality estate planning, and other basic, legal documents that are reviewed by a licensed Florida lawyer to ensure completeness and legal sufficiency, at a much lower cost than the traditional office visit.

Here's how it works:
     • Clients log on to the web-based client portal, which is available 24 hours a day, seven days a week at http://www.floridalegalformsstore.com/
    • Through a questionnaire designed by lawyers to replicate the information obtained in a face-to-face interview, clients complete a plan based upon the needs identified through their answers.
    • Document drafts are then generated through quality assurance checks before being finalized by attorneys licensed in the Florida to ensure compliance with Florida law and appropriateness for the client’s situation as revealed by their answers on the questionnaire.
    • Plans are delivered to the client by email or regular mail, along with detailed execution instructions.

Through the website you can obtain individual documents, or you can obtain a full set of documents to constitute a complete basic estate plan. Your estate plan can be a will based plan or a revocable living trust based plan. A will based plan includes the last will and testament, a durable power of attorney, a designation of health care surrogate, with HIPAA Release, and a living will. The revocable living trust based plan includes all of the foregoing along with a revocable living trust.

If your estate planning needs for wills and trusts do not involve a taxable estate (over $5 million in 2012), or blended families where there are children from multiple marriages, you may find that your estate planning needs can be met through our online service.

If you have a complex set of issues, it may be possible to obtain guidance and direction with a telephone consultation, that can also be arranged through the website. Telephone conferences can be scheduled in fifteen minute intervals.

As Roger Maddon, the driving force behind Hargrove Maddon's effort that resulted in the ABA award says: "Everyone can benefit from a Last Will and Testament, a Living Trust, as well as medical and financial Powers of Attorney, and a Living Will. Together, these documents can help families avoid some of the burdens associated with estate administration and the probate process. With the right technology, requisite security and systems in place, an estate plan can be made readily available to anyone who has internet access."

If I Am In a Nursing Home, Is It Too Late to Give Away My Assets and Qualify for Medicaid to Nursing Home Costs?

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-04-01T18:53:42Z

In Florida, if you are already in a nursing home, it may be too late to "give away" your assets and still qualify for Medicaid benefits for nursing home care, but that doesn't mean that you can't protect most of your assets and still qualify for Medicaid benefits to pay for the cost of the nursing home care. With the assistance of an elder law attorney experienced in Medicaid planning and nursing home care planning, you can protect substantial assets from nursing home costs that can exceed $80,000 a year.

There are a number of options that can be taken to legally "spenddown" your assets in a way that allows you to preserve most of those assets for your own financial support, or the support of other family members, and still qualify for Medicaid benefits to pay for nursing home costs. However, you must be very careful to follow the complex Medicaid laws and rules. There are many pitfalls that can result in a potentially long penalty period that could cost you and your family tens of thousands of dollars in nursing home costs that could otherwise be avoided.

Eligibility for Medicaid benefits to pay for nursing home costs is based on meeting two financial criteria (there also is a medical needs criteria, but if you already are in a nursing home, you very probably have met that criteria). The first is the income test and the second is the asset test.

The income test requires that your income not exceed the amount allowable for Medicaid eligibility. If your income is above the allowable amount (for 2012 that is $2,094 per month), you must establish and maintain a Qualified Income Trust("QIT"), sometimes called a "Miller Trust." With a QIT in place and operating properly, you can qualify for Medicaid benefits to pay for nursing home costs without regard to the level of your income.

The asset testrequires that your "countable" assets be less than $2,000. (If you are married, your spouse can have countable assets up to the allowable spousal resource (for 2012 that is $113,694).) Some assets are not "countable." Other assets can be turned into a stream of income that will effectively convert a countable asset to income and eliminate it from consideration in determining your eligibility for Medicaid benefits to pay the costs of nursing home care.

Often there are countable assets that can be converted to "noncountable" assets. Your noncountable assets are not included in determining whether you have met the requirements of the asset test to qualify for Medicaid benefits to pay nursing home care.

There are other options that allow the transfer of your assets, sometimes to family members, in return for valuable consideration to be provided to you by those family members. If the transaction is strucutred properly, the transfer of the assets to the family member will not create a penalty period and you can qualify for Medicaid benefits to pay for nursing home costs immediately.

Medicaid benefits are becoming more difficult to obtain because of the budgetary problems most states are experiencing (and Florida is no exception to this national trend), according to the Wall Street Journal ("Medicaid Gets Harder to Tap", April 1, 2012). As the rules tighten and are more strictly enforced, the need for proper planning and implementation of a spenddown plan becomes more imporant than ever if you want to qualify for Medicaid benefits to pay for nursing home costs and protect your assets from the cost of nursing home care.

If I am already in a nursing home, is it too late to give away my assets and qualify for Medicaid to pay for Nursing Home Costs?

If you, a family member or loved one, is already in a nursing home, it is not too late to protect substantial assets. But, to protect the assets from nursing home costs it is imperative that the rules and Medicaid law be precisely followed in the process. Otherwise, you may engage in actions that will result in your disqualification for Medicaid nursing home benefits, or create a penalty period that will cost you and your family tens of thousands of collars.

We have been preparing spenddown plans to qualify for Medicaid benefits, and successfully filing Medicaid applications for nursing home benefits for more than 15 years. If you need the assistance of an elder law attorney experienced in successfully planning for and filing Medicaid applications to pay for nursing home costs, please call us to schedule an appointment at 904-448-1969, toll free at 888-492-2468, or email us at Info@TheColemanLawFirm.net.

Copyright 2011 - The Coleman Law Firm, PLLC

Why Do I Need Help Obtaining Medicaid Coverage for Nursing Home Costs?

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-03-31T17:07:29Z

Getting Medicaid benefits to pay for nursing home costs may be something that is easy and straightforward for some. For others, those who want to protect assets from nursing home costs, the Medicaid planning process and the application for Medicaid benefits to pay for nursing home costs is a potential minefield that practically requires the assistance of an elder law attorney experienced in Medicaid and nursing home care planning.

Many courts have commented on the complex nature of the Medicaid laws and rules, and generally find the Medicaid process to be second in complexity only to the Internal Revenue Code. If your objective is to preserve as many assets as possible to provide financial support for the nursing home resident's spouse or other family members, it is imperative that you work with a Florida elder law attorneywho is experienced with Medicaid planning to pay for nursing home costs. The costs of nursing home care and financing nursing home care, as well as the increasing cost and decreasing availability of long term care insurance, are forcing more and more people to rely on Medicaid benefits to pay for nursing home costs.

The process for determining one's eligibility for Medicaid benefits to pay for nursing home costs begins with a "snapshot" of the income and financial resources of the individual applying for Medicaid benefits, and the spouse if there is one, on the date the application is submitted. If the applicant for Medicaid benefits, and the spouse, qualify on the date of the application, then benefits to pay the nursing home costs begin retroactively to the first day of the month in which the application is submitted. However, if the individual does not qualify on that date, there may be a substantial delay in obtaining Medicaid benefits to pay for the ongoing nursing home costs while the individual's or spouse's, or both, "spenddown" any assets above the level that is allowed for Medicaid eligibility. Currently, the amount of countable assets allowed to be owned by the person applying for Medicaid benefits is $2,000.

If the applicant for Medicaid benefits has more than $2,000 when the application is filed, benefits to pay for nursing home costs will be denied. It will be necessary for the applicant to spenddown the assets, most often by paying the nursing home, until the countable assets are less than the allowed $2,000. However, with proper planning before the application is filed, it may be possible through various legally allowed actions to protect a substantial amount, or all, of the assets owned by the applicant before the application is filed. The protected assets can be available to family members to provide financial support for the spouse or others, and to provide the nursing home resident with services and products that would otherwise be unavailable to the resident because of the low $35 per month "personal allowance" allowed by Medicaid after obtaining benefits to pay for the nursing home costs. (After a person has qualified for Medicaid benefits to pay for nursing home costs, the person must pay all of their income to the nursing home except $35 which is allowed to be retained for the resident's personal needs.)

Another potentially negative consequence of filing an application for Medicaid benefits to pay for nursing home costs can occur if the applicant for the Medicaid benefits, or that person's spouse, has transferred any assets to other family members, charities, churches or others, within the five years prior to filing the application. The Florida Department of Children and Families is required by the Medicaid law to "look back" for 60 months prior to the filing of the application for Medicaid benefits to pay for nursing home costs, to determine whether there are any such "uncompensated" transfers, or gifts. If there are any such gifts or transfers, the applicant, even if otherwise approved for Medicaid benefits to pay for nursing home costs, will not be eligible to actually receive the benefits to pay for the nursing home care for a "penalty period." The length of the penalty period is determined by the value of the uncompensated transfers that were made. Even though the gift may have been made just a year or two ago, or as many as four or five years ago, the penalty period could be for a longer period of time than the five year look back.

Why do I need help obtaining Medicaid coverage for nursing home costs? Can I just submit the application?

By properly analyzing the uncompensated transfers, an elder law attorney experienced with Medicaid and nursing home planningmay be able to develop a strategy that would result in the legal avoidance of the penalty period, or at least ensure that the application is not filed until the appropriate look back period has passed so that there would be no penalty period imposed because the transfer took place more than five years before the application was filed. Otherwise, the penalty period will be unavoidable if such an uncompensated transfer, or gift, was made in the five years prior to the filing of the application for Medicaid benefits to pay for nursing home care.

If you, your spouse or your parent, or other family member presently needs or will soon need nursing home care, you can help protect assets from nursing home costs by consulting with an elder law lawyer who is experienced in Medicaid and nursing home care planning. Your Jacksonville elder law attorney at the Coleman Elder Law and Estate Planning Law Center has more than 15 years experience working with Medicaid planning, nursing home care planning, preparing asset protection Medicaid spenddown plans, and filing applications for Medicaid benefits to pay for nursing home costs. You can schedule an appointment to determine whether you or your family member can benefit from Medicaid planning to pay for nursing home costs by calling 904-448-1969, or toll free 888-492-2468, or you can email us at Info@TheColemanLawFirm.net.

Copyright 2011 - The Coleman Law Firm, PLLC

How Much Income Can I Make and Still Qualify for Medicaid?

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-03-28T10:04:31Z

In Florida, which is an "income cap" state, eligibility for Medicaid benefits is barred if the nursing home resident's gross income from all sources exceeds $2,094 a month (for 2012). However, if the excess income above this amount is paid into a "(d)(4)(" qualified income trust" ("QIT"), or "Miller" trust, any person in Florida, regardless of income level, can qualify for Medicaid benefits to pay for nursing home costs.

A QIT is a trust that is designed to allow the individual whose income is above the "income cap" to deposit all of the income in excess of the allowable limit into the trust on a monthly basis. Each month the income is then paid from the trust to the nursing home up to the nursing home's standard rates.

If, at the death of the person who has received benefits from Medicaid, there are any funds remaining in the QIT, those funds are paid over to the State of Florida, up to the total amount of the benefits paid by Medicaid on behalf of the deceased person ("Medicaid Recovery"). If any funds remain in the QIT after the State has been reimbursed, those funds may be distributed as directed by the Medicaid recipient in the trust document.

The QIT should be established the month before the application for Medicaid benefits is filed with the Florida Department of Children and Families. All of the income for the month in which eligibility for Medicaid benefits is sought should be transferred into the QIT. For more information about qualified income trusts please click here.

How Much Income Can I Make and Still Qualify for Medicaid?

All Income Must Be Paid to the Nursing Home Except Allowable Deductions

The basic Medicaid rule for nursing home residents is that they must pay all of their income, minus certain deductions, to the nursing home. The deductions include a $35-a-month personal needs allowance, a deduction for any uncovered medical costs (including medical insurance premiums), and, in the case of a married applicant, an allowance for the spouse who continues to live at home if he or she needs income support. The income of the Medicaid benefits recipient that can be diverted to the community spouse is called the Minimum Monthly Maintenance Needs Allowance (MMMNA). For 2012, the MMMNA is $1,838 per month, up to $2,381 per month. A deduction may also be allowed for a dependent child living at home.

For Medicaid applicants who are married, the income of the community spouse (the one who is not in the skilled nursing home) is not counted in determining the Medicaid applicant's eligibility. Only income in the applicant's name is counted in determining his or her eligibility. Thus, even if the community spouse is still working and earning $5,000 a month, she will not have to contribute to the cost of caring for her spouse in a nursing home if he is covered by Medicaid.

In addition to meeting the requirements of the income test as set forth above, to qualify for Medicaid benefits to pay for nursing home costs, it is also necessary to meet the requirements of the"asset test," or resources test.

If you need the assistance of an experienced elder law attorney to prepare a qualified income trust, or to help you or your family members meet the asset test to qualify someone for Medicaid benefits to pay for nursing home costs, please contact us at 904-448-1969, or by email at Info@TheColemanLawFirm.net.

Must I give away all my assets to keep them from being taken to cover the costs of my spouse's nursing home care?

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-03-25T15:43:33Z

If your spouse is required to enter a skilled nursing facility it is not necessary for you to "give away" all of your assets to protect your assets from the cost of your spouse's nursing home care.

Assuming that you and your spouse do not have adequate assets, or long term care insurance, to pay for your spouse's long term care needs in a skilled nursing facility, you will want to apply for and obtain Medicaid benefits to pay for your spouse's nursing home care. There are two financial critieria that must be met to qualify one for Medicaid benefits to pay for nursing home care: an income test and an asset test.

For the purpose of answering this question, we will assume that your spouse has met the income requirement and will address only the question of meeting the asset test to qualify for nursing home benefits from Medicaid.

The spouse who is residing in a skilled nursing facility is called the "institutional spouse" in the language of Medicaid. The spouse who remains at home is called the "community spouse." To qualify for Medicaid benefits to pay for nursing home costs, the institutional spouse can have no more than $2,000 of "countable" assets, or resources, and the community spouse can have no more than $113,640 (for 2012) of countable resources. Some assets and resources are considered to be "unavailable" for Medicaid purposes.

If your spouse is required to have skilled nursing home care, to qualify your spouse for Medicaid benefits to pay for the nursing home care, it is necessary for you have no more than the allowed amount of "countable" or "available" resources ($113,640), and your spouse can have no more than the $2,000 of countable resources. If your and your spouse's assets exceed those levels then it is necessary to restructure or "spend down" your and your spouse's assets to receive Medicaid benefits to pay for your spouse's nursing home care.

Must I give away all my assets to keep them from being taken to cover the costs of my spouse's nursing home care?

Giving away your assets will not work! Medicaid law provides that any transfer of an asset for less than fair value consideration received by the person transferring the asset is a "uncompensated transfer." A substantial penalty period is applied whenever there is one or more uncompensated transfers by you or your spouse within 60 months (5 years) of your spouse applying for Medicaid benefits to pay for nursing home care. By giving away assets you may be creating a penalty period that will effectively prevent your spouse from receiving Medicaid benefits to pay for nursing home care.

There are a number of options available to you and your spouse, to legally reduce your countable resources so that your spouse can qualify for Medicaid benefits to pay for nursing home costs, without creating a penalty period. Some of the rules and laws prohibiting the transfer of specific assets to family members have exceptions that in some cases will allow those assets to be transferred to certain family members. Sometimes countable assets can be converted to non-countable assets without penalty and without negatively affecting your spouse's eligibility for Medicaid benefits to pay for nursing home costs. In other cases, the "spend down" of assets can be accomplished by preserving assets for the community spouse and other family members.

The objective of this type of Medicaid planning is to provide for the preservation of family assets for the financial support of the community spouse, and to provide resources for the spouse who is residing in the skilled nursing facility to supplement the $35 monthly allowance for the institutional spouse's personal needs - hardly enough to provide for hair care, much less other personal needs of the spouse residing in the nursing home.

Giving away your assets is not going to work to qualify your spouse in the nursing home with Medicaid benefits to pay for the nursing home costs. Careful planning must be used to ensure the preservation of family assets without reducing or eliminating the institutional spouse's eligibility for Medicaid benefits to pay for nursing home care. Compliance with a multitude of rules and exceptions is necessary to accomplish a legally sound spend down plan, and then careful implementation of the plan is also a necessity. Otherwise, the risk of doing something that will cause a serious penalty period, or potentially complete inelgibility, for receiving Medicaid benefits to pay for nursing home costs will occur.

Various appellate court judges have made statements in legal decisions over the years that the Mediciad statutes and rules are second in complexity only to the Internal Revenue Code for taxes. Proper planning with an experienced elder law attorney will help you obtain Medicaid benefits to pay for your spouse's nursing home costs, without the necessity of you giving away all of your assets.

We have over fifteen years of experience preparing Medicaid spend down plans, assisting families obtain Medicaid benefits to pay for nursing home costs, and the filing and processing to completion of applications with the Florida Department of Children and Families (and its predecessor) for Medicaid benefits to pay for nursing home costs. If we can provide assistance to you and your family, please call 904-448-1969 (toll free 888-492-2468), or email us at Info@TheColemanLawFirm.net, to schedule an appointment to discuss how your can qualify for Medicaid benefits to pay for nursing home costs.

Copyright 2011 - The Coleman Law Firm, PLLC

How can I avoid being impoverished by the high cost of nursing home care?

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-03-22T11:54:19Z

Nursing home care in a skilled nursing home in Northeast Florida now averages about $85,000 per year. If you, or a family member or other loved one, needs skilled nursing home care, there are only three ways to pay for the cost of the nursing home care. The first is to use your own assets to pay for nursing home care, assuming you have sufficient assets. The second is to use long term care insurance, which is becoming increasingly difficult, and expensive, to obtain, as more insurance companies eliminate long term care insurance from their offerings.

The third option for paying the cost of nursing home care is through Medicaid benefits, specifically the Institutional Care Program ("ICP") offered through Medicaid. A Medicaid spend down plan, put together by a qualified and experienced elder law attorney or Medicaid planning lawyer, can allow you to preserve signficiant assets for your family and the nursing home resident, while qualifying for Medicaid benefits to pay for nursing home costs.

Eligibility for Medicaid benefits through ICP is based on three eligibility criteria. To qualify for the Medicaid benefits through ICP, the skilled nursing home resident must meet all three sets of eligibility to receive Medicaid benfits to pay for nursing home care. The three sets of criteria include (1) medical need, (2) the income test, and (3) the asset test.

To qualify as having a medical need for nursing home care the applicant for Medicaid benefits must establish, through medical examination, that he or she is unable to perform at least 3 of the activities of daily living ("ADLs") without assistance from someone other than the applicant. The ADLs include: (1) the ability to dress oneself without assistance, (2) the ability to bathe without assistance, (3) the ability to feed oneself without assistance, (4) the ability to toilet without assistance, (5) the ability to get into or out of bed/chair/toilet without assistance (called "functional transfers"), and (6) the ability to move from room to room or into and out of the house without an assistive device (walker, cane, wheelchair).

The seond test is the income test. Under Florida's administration of the ICP, the limit for income allowed to qualify for Medicaid benefits for 2012 is $2,094 per month. If the nursing home resident's income is greater than $2,094 per month it is necessary for the resident to establish a Qualified Income Trust to qualify for Medicaid benefits to pay for nursing home costs. A qualified income trust ("QIT") is an irrevocable trust (sometimes called a "Miller Trust") that is designed to ensure that any income of the resident over the level allowed by the Medicaid law, will be available for Medicaid recovery by the state at the resident's death.

The third test that must be met is the resource, or asset, test. The resident may have only two thousand dollars ($2,000) of countable assets to qualify for Medicaid nursing home benefits. If there is a spouse who remains in the home (called the "community spouse"), he or she will be allowed to retain a maximum of $113,640 of countable assets without affecting the other spouse's eligibility for Medicaid benefits to pay for nursing home costs.

With proper Medicaid spend down planning by an experienced elder law attorney or Medicaid planning lawyer, there is a significant amount of assets above the allowable level that can be preserved for the family through the restructuring of assets from "countable" to "non-countable," and through the spend down of assets in a legally correct manner, so that substantial assets can be preserved for the family, and for the nursing home resident, and still allow the nursing home resident to qualify for Medicaid benefits to pay for nursing home costs.

If you would like us to evaluate how much of your family assets can be preserved while still qualifying for Medicaid benefits to pay for nursing home costs, please call our office at 904-448-1969, or email us at Info@TheColemanLawFirm.net, to schedule an appointment to meet with our Medicaid planning lawyer and elder law attorney.

Copyright 2011 - The Coleman Law Firm, PLLC

Is it a good idea to list my TRUST as beneficiary for my 401k plan?

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-02-29T13:23:15Z

There is a difference of opinion among estate planning professionals regarding designating a revocable living trust as a beneficiary of a 401(k) plan or other retirement plan (such as an IRA).

Some of the differing opinions derive out of misconceptions involving the Internal Revenue Code and the income tax. Prior to 2003 there was much concern with regard to naming a trust as the beneficiary of a retirment plan. The concern was that it would be necessary to immediately distribute the retirement plan account to the trust and realize income tax on all of the distribution in the year of death.

Beginning in 2003, the IRS issued a number of rulings that allowed a properly drafted revocable trust to be the beneficiary of a retirement plan account without adverse income tax consequences. In 2005, Congress passed the Pension Protection Act of 2005. That Act allows a revocable trust to be an eligible beneficiary of a retirement plan.

The primary advantage of naming an revocable trust as the beneficiary of a retirement plan is the ability to control the distribution of the proceeds of the retirement plan in the event circumstances are not as you expected them to be when the retirement plan holder dies. For instance, if an individual is named as the beneficiary of a retirement plan account, and that individual passes away before the account owner dies, then what happens to the retirement plan account? There may or may not be a contingent beneficiary named with the retirement plan administrator. If not, then to whom do the funds get distributed?

To determine the answer to that question it usually is necessary to obtain a copy of the retirement plan documents to learn what the plan document requires. Sometimes the plan document provides that if there is no legitimate beneficiary in existence at the death of the account holder, then the plan proceeds will go to the account holder's estate. Other plans provide that the retirement account proceeds will be distributed to the heirs of the deceased retirement plan account holder. Those heirs could be a surviving spouse, children of the deceased account holder, or others depending on the statutes in the state where the retirement account plan owner lived at the time of his or her death.

If the distribution is to the deceased account holder's estate, then the plan proceeds may be subjected to the claims of creditors of the deceased account holder, rather than be distributed to the beneficiary free of the claims of the deceased account holder's creditors.

Creditor Protection for Retirement Plans and IRAs.

In Florida, for instance, retirement plan proceeds are protected from claims of creditors. However, if the default beneficiary, if there is no surviving named beneficiary, is the deceased account holder's estate, by distributing the funds to the probate estate those funds will be subjected to the claims of the deceased account holder's creditors, rather than be distributed to family or loved ones.

Can a retirement plan protect my assets?

The larger potential problem is the distribution of the retirement plan account to the wrong person or to the right person at the wrong time. If you the person named as the beneficiary, or the default beneficiary if there is no proper beneficiary designation, is going through a divorce, or has lawsuits pending, or is incapacitated at the time of the distribution, then it is likely that some or all of the retirement plan proceeds will end up in the hands of someone other than who you wanted to receive the retirement plan proceeds (i.e., the divorcing spouse, the beneficiary's creditors, or in the case of an incapacity a court-supervised guardianship). None of those options are desirable.

However, if you name a testamentary trust as the beneficiary of your retirement account proceeds, whether that testamentary trust arises out of the probate of a will or the administration of a revocable living trust, then you have the ability to avoid the issues that arise when the beneficiary designation is an individual or individuals. The testamentary trust can avoid the problems of creditor claims against your estate, and avoids the concern that a distribution will go to someone during a time of divorce, incapacity or when creditor issues are present. In other words, you are able to ensure that your retirement plan proceeds actually end up with the beneficiary you intend.

Another issue that can be avoided by naming your trust as the beneficiary of your retirement plan is the event that you and your spouse, or other family member, die in a common accident. Most properly drafted revocable living trusts provide that if both spouses die within a stated period of time (usually between 30 and 90 days), that any distributions that were directed to the surviving spouse lapse, or are voided. If your spouse dies at the same time, or within the stated period of time, as your death, the assets that otherwise would be distributed to or for the benefit of your spouse are redirected to your contingent benefactrices named in the trust document.

However, in the same scenario, if your retirement plan assets are designated to go to your spouse, and your spouse dies with you or within a short period of time after your death, then the retirement plan proceeds "vest" in your spouse immediately upon your death, and then the proceeds are distributed according to who your spouse's beneficiaries or heirs might be. If you have a blended family, the result could be contrary to what you wanted to accomplish.

What About "Stretch" IRA Provisions?

There is one potential negative consequence of naming your trust as the beneficiary of a retirement plan or IRA. Based on current law (the Obama proposed budget for 2013 might change current law), in certain circumstances a beneficiary of a retirement plan or IRA can elect to "stretch" the distributions of the retirement plan or IRA over the life expectancy of the beneficiary. The "stretch" of the distributions reduces the overall income tax burden from the distributions, and allows the beneficiary to take advantage of the tax deferral provided by the retirement plan or IRA.

If a revocable living trust is a beneficiary of the retirement plan or IRA, the "stretch" provisions require that only the life of the oldest beneficiary be used to determine the "stretch" life expectancy to calculate the distributions. The disadvantage arises where there are multiple beneficiaries of the revocable trust and the age difference between the oldest and the youngest is significant. In that event, the younger trust beneficiaries will be obligated to use the oldest beneficiaries age to determine the "stretch" distributions.

It is also possible that a revocable trust may not have been drafted with the appropriate provisions to allow the use of the stretch provisions. In that event, the withdrawal of the retirement plan account proceeds must be completed within five years of the date of death of the retirement plan account holder.

Certainly, before you name your trust the beneficiary of your retirement plan or IRA, you should consult with an experienced estate planning attorney to determine whether the proper language is present in your trust to allow the use of the "stretch" provisions of the Internal Revenue Code.

What is a Retirement Plan Trust?

You may also want to consider a "Retirement Plan Trust." An IRT is a trust specifically designed to be the beneficiary of a retirement plan or IRA. An IRT allows the use of each individual beneficiaries' own age to determine the life expectancy for required distribution calculations. A properly drafted IRT is also designed so that there will be no concerns regarding subjecting the proceeds from the retirement plan to the claims of the deceased account holder's creditors.

Choosing the Right Beneficiary to Designate

Properly designating the beneficiary of your retirement plan or IRA obviously is very important. You have an incredible array of beneficiaries you can name. There are a host of issues as shown by this chart prepared by a nationally renowned expert on IRA and retirement planning, Robert Keebler, CPA, MST, AEP. You can learn more about designating beneficairies for retirement plan accounts and IRAs at our website on the page entitled "Who Should Be The Beneficiary of my IRAs."

As you may have determined from the above, there can be significant value to using a trust as the beneficiary of a retirement plan or IRA. There are also some pitfalls associated with that action. To maximize the advantage of your retirement plan or IRA for your beneficiaries, it is well worth the time to consult with an experienced estate planning attorney who can help you determine what is the most appropriate course of action for you to take.

Academy Awards Nominee "The Descendants" Really About Estate Planning

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-02-24T20:41:51Z

If you can get past the swooning over George Clooney, this year's five time Oscar nominee "The Descendants" is really about estate planning. In the movie plot, Clooney's character's ancestors left valuable Hawaian real estate in a trust, of which Clooney's character is a beneficiary and the trustee of the trust. The trust is about to end, and George Clooney's character, King, as the trustee, must decide whether to sell the land to a developer make him and his cousins all very wealthy, or keep the pristine Hawaian property in the family.

The movie is based on a book by the same name that was written by Kaui Hart Hemmings, a Hawaian who was actually involved in the sale of land that was in a trust from her ancestors. She talks about the movie, working with George Clooney, and her family's inheritance of Hawaian land with Forbes, Deborah Jacobs, in this article.

The plots and sub-plots in the movie raise a number of estate planning issues that arise in almost all families, regardless of wealth.

One of the first issues brought to the surface in the movie is the degree to which unearned wealth brings conflict: from the perspective of "selling out" the land and its heritage, conflict between and among the descendants over whether to keep the heritage or convert it to spendable wealth, and, perhaps most importantly, the degree to which an individual desires to provide unearned wealth for their own descendants. King (Clooney's character) phrases it this way: “I want my children to have enough that they think they can do anything, but not so much that they know they can do nothing.”

Another interesting estate planning issue arises out of the fact that the trust is ending. Most people do not know that a trust, at least in most states, cannot last forever. The "rule against perpetuities" provided by state statutes typically determines when a trust must end, and the principal of the trust be distributed to its beneficiaries. Some states have extended the rule against perpetutities, and a small handful of states have eliminated the rule against perpetuities so that a trust could literally continue in perpetuity. In Florida, a trust is allowed to remain in existence and operating for up to 360 years.

There are a number of other estate planning issues that are central to one or more of the movie's subplots.

For instance, King's wife has suffered a horrible injury in an accident. She has no advance directives in place to communicate what kind of end of life decisions should be made on her behalf. A living will or other advance directive could eliminate much of the uncertainty and conflict surrounding her ultimate treatment and outcome. She also could have prepared a health care power of attorney naming the person(s) who should make decisions on her behalf when such circumstances are present.

King is the sole trustee of the land trust involved in The Descendants. The movie script doesn't tell us whether he is serving in that capacity having been specifically identified in the trust document, or whether the other family members who are beneficiaries of the trust chose him to serve - perhaps because he was the "lawyer" in the family.

Chosing trustees and providing for the succession of trustees over a long period of time is usually one of the most important considerations made by the person who establishes a trust. The choice between individual and corporate trustees, whether to have one or more trustees, and specifying how successor trustees are to be selected can be critical to the successful administration of a trust over time.

Another significant estate planning issue that is addressed in The Descendants is the "fiduciary duty" that a trustee owes to the beneficiaries of the trust. In The Descendants, this issue arises out of the discussion between King and his cousins who want the property to be sold, making them all very wealthy. When King decides not to sell the property, but to keep it intact, he states to one of his cousins that the cousin can sue him (King/Clooney) if he is unhappy with the decision.

One last estate planning issue that is brought out in the movie is the potential problems that can arise out of joint ownership of property. In discussing the option of refusing to sell the property out of the trust to the developer, King agonizes over the fact that he and all of his cousins will own the property jointly.

Joint ownership of property usually means the individual joint owner has no control over what is done with the property, cannot sell or mortgage the ownership interest unless all of the other joint owners agree, and may not be able to transfer the property interest as desired either during life or at death. It also means that unknown third parties may become your "partners" in the ownership of the property through divorce or because of creditor claims by your partners' creditors.

So when you watch the Academy Awards program this weekend, and they start handing out the Oscars, be sure to remember that The Descendants is really about estate planning!

Copyright 2011 - The Coleman Law Firm, PLLC

How a Qualified Income Trust Can Help You Qualify for Medicaid to Pay for Nursing Home Care

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-02-06T23:07:54Z

Florida is an "Income Cap State" with regard to eligibility for Medicaid benefits to pay for nursing home care. That means that if the nursing home resident's income exceeds the "income cap", he or she will not be able to qualify for Medicaid benefits to pay for their nursing home care, unless a "Qualified Income Trust" is implemented. [A "qualified income trust" is often referred to as a "QIT", a "QIT Trust", or a "Miller Trust".]

How much income can I make and still qualify for Medicaid?

For 2012, the income cap for Florida is $2,094 per month (effective 1/1/2012). Accordingly, if you, a family member, or loved one, are otherwise eligible for Medicaid benefits to pay for nursing home care, but have gross income greater than $2,094 per month, then you must put in place a Qualified Income Trust so that you can qualify for nursing home Medicaid benefits.

There are a number of key elements that must be included in the QIT. It must be irrevocable. After you have signed the qualified income trust document, it cannot be changed except to add new successor trustees if the serving trustee is unable or unwilling to continue as trustee, or to modify the trust to comply with applicable Medicaid law regarding nursing home care benefits.

A QIT must be signed in accordance with the Florida law applicable to trusts generally, and irrevocable trusts specifically.

There are administrative details that are required for the administration of a trust after the QIT trust document has been signed. The qualified income trust must have its own bank account, and detailed records should be maintained for the QIT trust.

All of the Medicaid beneficiary's income in excess of the income cap amount must be deposited into the QIT's bank account monthly, or as received. Usually, all of the nursing home resident's income is placed in the QIT's bank account; and then paid to the nursing home after allowing the withdrawal of the Medicaid beneficiary's personal needs allowance ($35 per month in Florida), and any of the Medicaid beneficiary's income that is allowed to be diverted to the community spouse because of the spouse's financial needs.

We at The Coleman Law Firm, PLLC, offer our clients three options when a qualified income trust is needed to allow a nursing home resident to qualify for nursing home benefits from the Florida Medicaid Institutional Care Program for nursing home costs.

1. Online Preparation

When you, or a family member wnat to handle the complexity of a Qualified Income Trust without significant involvement by an attorney, we provide an option that allows you to prepare a Qualified Income Trust online, at a substantially reduced price. The online QIT is an attorney reviewed document that meets all of the requirements for a Qualified Income Trust pursuant to the Florida and Federal Medicaid laws, and is acceptable to the Florida Department of Children and Families.

It takes only a few minutes of your time to complete the online QIT questionnaire and have a completed document. We will review the document within 48 hours to determine that you have provided the appropriate information, and return to you a final QIT trust document that you then must get properly signed (we provide you detailed written instructions about how to properly sign the QIT).

You can learn more about the online preparation of a qualified income trust, or begin the preparation of your QIT trust by clicking here.

2. Attorney Prepared Document Delivered to You for Signing

A second option is that we will prepare the document for you, based on information provided by you in the form of answers to a written questionnaire. You can provide us with the completed questionaire by either regular mail (9250 Baymeadows Road, Suite 450, Jacksonville, FL 32256), fax (904-448-5244), or email (Info@TheColemanLawFirm.net).

We will return the completed QIT trust document to you by either email or regular mail, at your election. You must arrange to have the document signed, witnessed and notarized. You can obtain a copy of the questionnaire by clicking here.

We also provide you via email with a detailed explanation of the steps necessary for properly signing the qualified income trust document, properly administering the QIT trust, and include a letter to your bank explaining the operation of the bank account for the QIT trust.

We will return by mail, email, or overnight delivery, the completed QIT, ready for signing, to you within 48 hours of our receipt of your questionnaire.

3. Consultation Session With an Experienced Elder Law Attorney to Evaluate, Design, Execute and Implement Your Qualified Income Trust

We also provide the a "full service" qualified income trust that includes an initial consultation with an experienced Florida elder law attorney, the design and preparation of the qualified income trust by the Florida elder law attorney, and the signing of the qualified income trust in the elder law attorney's office, with witnesses and a notary public provided by the elder law attorney.

Representation is subject to a "conflicts check" to see that we do not have any conflicts of interest, and a written representation agreement signed by the client (the online preparation representation agreement is included in the online materials).

If we can assist you with the implementation of a qualified income trust, please call us a (904) 448-1969, or email us at Info@TheColemanLawFirm.net.

Copyright 2011 - The Coleman Law Firm, PLLC

Proper Long Term Care Planning Helps Ensure Best Care

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-01-25T13:03:24Z

There is no question that long term care for the elderly is expensive. Similarly, there is no question that as the population ages, the cost of long term care will continue to increase if for no reason other than the basic economic propositon that increased demand pushes prices higher when the supply doesn't increase proportionally. With boomers turning 65 at the rate of 10,000 a day there is practically no way for supply to keep up with demand.

It's also true that everyone doesn't have the financial resources to obtain Cadillic levels of long term care for their elderly family members. That doesn't mean that you should throw in the towel and take whatever care is available for your elderly parent, sibling or spouse.

Long term care planning, whoever your are, whereever your are, whatever the physical or medical condition of your elderly loved one, and whatever your financial circumstances, can help ensure that your elderly loved one receives the best care available for their own needs. Long term care planning includes ensuring that you receive all of the financial benefits that you may be entitled to receive, such as Medicaid benefits or VA Pension Benefits (Aid and Attendance).

So, where do you start?

Where you start will depend on whether you are in a "crisis" mode or if you are doing "advance" planning.

"Crisis" Planning

A "crisis" mode does not mean there is a medical crisis. It means that there is an immediate need to take some kind of action regarding the long term care of the elderly adult. Often it is caused by a fall, stroke, or other incapacitating event that causes an immediate need for nursing home care. The first step for this type of planning usually involves finding an appropriate skilled nursing facility to provide rehabilitation or residenctial care for the stricken elderly person. The second step usually is to find a way to pay for the long term care without depleting all of the eldedly person's financial resources, or to find a way to pay for the long term care when financial resources are limited.

Often, when this kind of planning is required, there have been no advance directives put in place, and it sometimes is necessary to have a court supervised guardianship established so that someone has the legal authority to act on behalf of the elderly person. The expensive, time-consuming, and invasive guardianship usually can be avoided if advance directives are in place before the "crisis" arises.

Advance directives include: (1) a durable power of attorney for financial matters; (2) a designation of health care surrogate to provide for medical decisions when you are unable to communicate with your medical care providers, and (3) a living will.

Advance directives should be prepared, ahem, in advance of the need for those documents. If the elderly person no longer has "legal capacity" to sign such documents, the court-supervised guardianship may be the only option available to provide the legal authority necessary for a family member or loved one to make decisions on behalf of the now incapacitated elderly person.

Advance Planning

If you are not in a crisis mode, and are preparing for the inevitable need for long term care in advance, your first step should be to work with an elder law attorney who can help you design and implement a long term care plan that works for you and your family, based on your financial circumstances and medical condition.

An experienced long term care attorney can help you prepare for your long term care needs by providing the advance directives discussed above, as well as assist in restructuring your assets so that your long term care needs financially do not impoverish your spouse, and help you preserve the assets you have accumulated during your lifetime are not exhausted by the costs of your long term care.

Legal Options

Your long term care attorney may use trusts, the re-titling of assets, a long term care spend down plan, or other options to ensure that your assets and financial resources are protected from the rising costs of long term care, and yet ensure that you receive the best long term care available for your circumstances.

The most effective planning can be accomplished before the planning is needed, so don't wait until you're in crisis mode if you want the best planning available for you and your family.

Why You Should Not Create a Special Needs Trust

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2012-01-19T16:46:23Z

Let's say you have a child with "special needs," or a sister, brother, mother or other family member. You have not created a special needs trust as part of your own estate plan. Why not?

We know why not. We have heard pretty much all the explanations and excuses. Here are a few, and some thoughts we would like you to consider:

I don't have enough money to need a special needs trust. Really? You don't have $2,000? Because that's all you have to leave to your child outside a special needs trust to mess with their SSI and Medicaid eligibility.

I can't afford to pay for the special needs trust. We apologize that it can be expensive to get good legal help. But the cost of preparing a special needs trust for your child is likely to be way, way less than the cost of providing a couple month's worth of care. That is what is likely to happen if you die without having created a special needs trust, since it will take several months of legal maneuvering to get an alternative plan in place. Even if there is no loss of benefits, the cost of fixing the problem after your death will be several times that of getting a good plan in place now.

I've already named my child as beneficiary on my life insurance/retirement account/annuity. Ah, yes -- our favorite alternative to good planning. If your child is named directly as beneficiary, you may have avoided probate but complicated the eligibility picture. Their loss of benefits will occur immediately on your death, rather than waiting the month or two it would have taken to get the probate process underway. This just might be the worst plan of all.

It'll all be found money to my kids. I'll let them take care of it if I die. We have bad news for you: "if" is not the right word here. That aside, you should understand that a failure to plan means you are stuck with what's called the law of "intestate succession." That means (in Arizona -- if you are not in Arizona you might want to look up your state's law) that if you die without completing your estate plan, your spouse gets everything unless you have children who are not also your spouse's children. If you are single, your kids get everything equally. If your child on public benefits gets an equal share of your estate, we will probably need to either (a) spend it all quickly or (b) put it into a "self-settled" special needs trust. That means more restrictions on what it can be used for, and a mandatory provision that the trust pays back their Medicaid costs when they die. All their Medicaid costs. Including anything Medicaid has provided before your death. Wouldn't you like to avoid that result? It's simple: just see us (or your lawyer if that's not us) about a "third-party" special needs trust. The rules are so much more flexible if you plan in advance.

My child gets Social Security Disability (or Dependent Adult Child) Benefits and Medicare. Good argument. Because those programs are not sensitive to assets or income, your child might not need a special needs trust as much as a child who received Supplemental Security Income (SSI) and Medicaid (or AHCCCS or ALTCS, in Arizona). But keep these three things in mind:

Even someone who gets most of their benefits from SSD and Medicare might qualify for some Medicaid benefits, like premium assistance and subsidies for deductibles and co-payments. Failure to set up a special needs trust might affect them, even if not as much as another person who receives, say, SSI and Medicaid.
Even someone receiving Medicare will have some effect from having a higher income. Premium payments are already sensitive to income, and future changes in both Medicare and Social Security might result in reduced benefits for someone who has assets or income outside a special needs trust.
If your child has a disability, it might be that a trust is needed in order to provide management of the inheritance you leave them. If they are unable to manage money themselves the alternative is a court-controlled conservatorship (or, in some states, guardianship). That can be expensive and constraining.

I'm young. We agree. And we agree that it's not too likely that you will die in the next, say, five years (that's about the useful life of your estate plan, though your special needs trust will probably be fine for longer than that). But "not too likely" is not the same as "it can't happen." You cut down your salt and calories because your doctor told you it'd be a good idea -- even though your high blood pressure isn't too likely to kill you in the next five years, either. We're here to tell you that it's time to address the need for a special needs trust.

I'm going to disinherit my child who receives public benefits and leave everything to his older brother. That will probably work. "Probably" is the key word here. Is his older brother married? Does he drive a car? Is he independently wealthy? These questions are important because leaving everything to your older child means you are subjecting the entire inheritance to his spouse, creditors, and whims. And have you thought out what will happen if he dies before his brother, leaving your entire inheritance to his wife or kids? Will they feel the same obligation to take care of your vulnerable child that he does?

I'll get to it. Soon. OK -- when?

I don't like lawyers. We do understand this objection. Some days we're not too fond of them, either. But they are in a long list of people we'd rather not have to deal with but do: doctors, auto mechanics, veternarians, pest control people, parking monitors. Some days we think the only other human being we really like is our barista. We understand, though, that if we avoid our doctor when we are sick the result will not be positive. Same for the auto mechanic when our car needs attention. Also for the vet and all the rest. In fact, the only one we probably could avoid altogether is the barista, and we refuse to stay away on principle.

Seriously -- lawyers are like other professionals. We listen to your needs, desires and information, and we give you our best advice about what you should do (and how we can help). Most of us really like people. In fact, all of us atThe Coleman Law Firm, PLLC, really like people -- it's a job requirement. We want to help, and we have some specialized expertise that we can use to assist you. Give us a chance to show you that is true.

We also know a good barista.

This article is a reproduction of an article from the Phoenix, Arizona law firm of Fleming & Curti, PLC.

Happy Holidays! Merry Christmas! Happy Hanukkah!

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2011-12-23T11:54:35Z

To all of our friends, clients, vendors and readers, we wish each and everyone of you a very happy holiday season, filled with good spirit and family gatherings. May your New Year be your happiest, and most prosperous, ever.

But, should that holiday party or family gathering turn out to be a little stressful, here's some good counsel on how to avoid committing a crime against family from Gina Simmons of Forbes.com:

Holidays: An Occasion for Crimes of the Heart

Gina Simmons, Contributor

In Beth Henley’s Pulitzer Prize-winning play Crimes of the Heart, an attempted murder, graft and suicide form the backdrop for a story about the vulnerability of the human heart.

In many families, the holidays set the stage for a dysfunctional dance of drunk and disorderly conduct. Many of my clients dread visiting relatives during the winter holidays where the weather feels cold both inside and out. Rates of intimate partner violence and child abuse increase with the appearance of mangers and Christmas trees. For survivors of abuse, the holidays come with flashbacks of trauma that can trigger depression and anxiety, years after the abuse ended.

Holiday times also foster high expectations for love, connection, joy, gifts and good cheer. These high expectations collide with work pressure, time and money constraints and countless chores. Women feel more stress than men during the holidays, as we do most of the planning, shopping, cleaning, cooking, gift-wrapping and entertaining. Cranky, tired, stressed-out women don’t look like a Norman Rockwell painting of holiday bliss. Resentment builds when husbands look forward to the holidays as a time to rest, watch football and drink beer. Frazzled and furious women rage at their reclining-remote-grabbing men while so much work remains undone.

Even Rats Have Empathy

Relationships work better with empathy. In a recent study, rats showed empathy for another rat in distress, and made sacrifices to their own pleasure in order to help a stranger. Yet year after year we highly evolved humans avoid those in distress, even those in our own families. We criticize and judge, and fail to empathize with the ones we love. Instead of committing these crimes of the heart, create holiday happiness by showing care and patience, considering the unique pressures we all feel at this time of year.

Mind Readers are illiterate

When we expect others to know what we need, (mind read) we set them up for failure and set ourselves up for disappointment. When we assume we know the motives, thoughts and feelings of others, we’re engaged in mind reading, a thought distortion that leads to interpersonal conflict. Aunt Grace thinks your children are lazy because she bought them athletic socks for Christmas. Your secret Santa intended to insult you by giving you a desk calendar, (he’s implying you don’t manage your time well). Don’t over think the meaning of gifts and just appreciate that someone bothered to do something for you.

Let Go

At the end of an Iyengar yoga class, students recline on their backs in Savasana, or “corpse pose.” The instructor softly says, “let go everywhere,” as the body fully relaxes into the floor. This provides an experience of acceptance and release of control. During holiday times it helps to let go of the need to control the feelings and behaviors of others. Relinquish the need for everyone to feel happy. Let people follow their own emotional journey. With kindness and patience, or unkindness and impatience, friends and family will get along or not.

Do No Harm

If your family tests your empathy skills, triggers futile attempts at mindreading and challenges your capacity to let go, focus on minimizing harm to yourself and others. Stick to moderate drinking (one to two drinks in any 24-hour period). Get enough sleep so you have energy reserves for patience and self-control. Eat something nutritious every four to five hours to keep crankiness at bay and prevent overeating. Allow extra time for errands and shopping to avoid irritability with traffic and crowds.

Every year bloggers and journalists write about holiday stress, and every year tempers flare, fights erupt and resentments build. Lonely people feel even lonelier at this time of year, as their brain responds differently to social occasions, perceiving conflict before joy. Lend patience and care to the lonely, sick and those in chronic pain. Because after the gifts are opened, the good-byes are said, and the decorations are put back into their boxes, you will want to be found innocent of all crimes of the heart this holiday season.

This article is available online at:
http://www.forbes.com/sites/crime/2011/12/23/holidays-an-occasion-for-crimes-of-the-heart/

Veterans Pension Benefits - Aid and Attendance - Housebound Aid

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2011-12-14T11:49:16Z

For about the last year I have been an Accredited Attorney with the Veterans Administration, Department of Veterans Affairs. Over that period of time I have been exploring all of the nuances of Veterans Benefits and the situations in which Veterans Benefits can be of most value to my clients and prospective clients. During that period of time we also have successfully represented several clients through the process of applying for and being awarded Veterans pension benefits and Aid and Attendance benefits.

The Veterans pension benefit and Aid and Attendance benefit have been available to veterans since the Spanish American War. A significant improvement was made in 1979. The benefits can be quite meaningful especially for the veteran, or surviving spouse of a veteran, who needs or is receiving in-home care or needs or lives in an assisted living facility. In some cases the Aid and Attendance benefit can be a favorable alternative to Medicaid benefits for the veteran, or spouse, who is in a skilled nursing facility. The basic pension benefit, for those who qualify, can be as much as $1,337 per month for a veteran with spouse; and the Aid and Attendance benefit can be as much as $2,019 per month for a veteran, or spouse, who is receiving in-home care, or lives in an assisted living facility or skilled nursing home. These benefits are not subject to income tax.

Notwithstanding the significant value of these benefits, the Veterans Administration does little to let veterans know of the existence of these benefits. That’s where I would like your help. I would like for you to tell any veteran you know, or the surviving spouse of a deceased veteran, that these benefits are available and ask them to call our office to determine whether they might be eligible for these benefits. There are an estimated 19 million veterans who may qualify for these benefits, who are not currently receiving them. There are potentially multiples of that number of surviving spouses of veterans who may qualify for survivor benefits.

The basic eligibility requirements are that the veteran have served on active duty for at least 90 continuous days, at least one day of that service be during a period of war, and that the veteran is over 65 years of age, or if under age 65 that he or she suffers a total and permanent disability – the disability is not required to be service connected. There are also income and net worth requirements, but there are a host of legal planning options available to facilitate meeting the income and net worth requirements. You can find more information on VA Benefits at our website: www.TheColemanLawFirm.net/VA_Benefits.php.

If you have family members, or friends, who may meet the basic eligibility requirements, give them one of the best gifts possible this holiday season – information that could lead to meaningful tax free income resulting from their service to our country. Ask them to call our office (904-448-1969) to learn whether they may qualify for any of these benefits. My assistants, Sherri, Candace and Ashlee, will help determine whether they might qualify, and schedule an appointment with those who may be entitled to these benefits.

Our very best wishes from The Coleman Law Firm to you and your family for a happy holiday season and a prosperous new year.

Medical Emergencies During the Holidays - The Need for Advance Directives

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2011-12-04T15:43:29Z

It's the holiday season. No one wants to talk about estate planning, advance directives, life prolonging procedures, or dying. It's supposed to be the festive part of the year. But, people do die during the holidays. They also have strokes, heart attacks, aneurisms, and other health failures. Accidents occur daily. Some of them fatal.

The story told by Carolyn Rosenblatt, in "Don't Pull the Plug! A Family's Battle with the Hospital," is reflective of what can happen if consideration of end of life decisions are put off until its too late. In "Don't Pull the Plug!" the patriarch of the family experienced an aneurism. The brain was essentially vegetative, but still had some activity in the lower brain. There was no advance health care directive in place (living will or health care power of attorney). The hospital didn't want to continue providing life support procedures for someone who was essentially "brain dead" (and who didn't have insurance or the financial resources to pay for the application of life prolonging procedures). The family wanted to keep their husband and father alive as long as there was any brain activity - no matter how little.

The lawyers were brought in. A second opinion was sought. An IV was inserted to provide sustenance for the father until the new evaluation was completed. Two days later, the minimal brain activity ceased and the fight ended.

During those few days the family experienced much anxiety, incurred attorney's fees, and suffered avoidable turmoil. The hospital faced the threat of a lawsuit, had the normal operations of the hospital disrupted, and also incurred unnecessary attorney's fees.

All of the anxiety, turmoil, disruption, legal threats and attorney's fees could have been avoided had the father put advance directives in place.

Advance directives include a living will, a health care power of attorney (designation of health care surrogate), and possibly a durable power of attorney.

Video Answer to the Question: What is an Advance Directive?

Each of these documents can be drafted to include provisions that are important to you. Consultation with an experienced estate planning lawyer or elder law attorney may be helpful if you want to provide specific instructions or address unique concerns.

However, you should consider obtaining basic advance directives (the living will and designation of health care surrogate) even if you don't want to consult with an attorney, so that you and your family don't have the same experiences of the family discussed in "Don't Pull the Plug."

We offer such basic documents through our website at very reasonable costs. If you don't have advance directives in place, and want to get basic documents at rates affordable for everyone, please go to Legal Documents Online - Attorney Reviewed.

Copyright 2011 - The Coleman Law Firm, PLLC

Honoring Veterans 11-11-11

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2011-11-11T15:21:54Z

Today is Veterans Day 2011. Our sincere thanks and gratitude to the many in America who have served our great country, and our heartfelt desire that the politicians running our country can have the backbone and resolve to keep it great.

More than 41 million Americans have served in the US military since 1775. Approximately 23 million of them are alive today, and more than 17 million living veterans served during a period of conflict. There are approximately 7.391 million veterans of the Vietnam War (1964-1975). Approximately 2.275 million veterans alive today served in the Korean War (1950-1953). More than 2.244 million veterans of Operation Desert Shield/Storm are surviving (1990-1991). And, more than 1.711 million veterans of World War II are alive today (1941-1945). [Statistics courtesy of "America's Wars", Department of Veterans Affairs.]

All of those veterans serving during the period of time of any conflict (almost 12 million veterans) may be entitled to various benefits from the Veterans Administration, including, among other potential benefits, pension benefits or Aid and Attendance benefits. The survivors of deceased veterans may also be entitled to VA Pension benefits or VA Aid and Attendance benefits. No service connected disability is required to qualify for these benefits that have been long authorized by federal law.

Qualification is based on age (over 65), the veteran's active duty service, and at least one day of the active duty service was during a period of war, and certain other financial requirements.

These benefits fall into two main categories: VA Pension benefits, and VA Aid and Attendance Benefits.

    VA Pension Benefits

        Pension is a benefit paid to wartime veterans who have limited income are who are age 65 or older. The maximum annual pension rate for a veteran without spouse or child is $11,830 annually. For a veteran with one dependent, the maximum annual pension rate is $15,493.

    VA Aid and Attendance and Housebound Benefits

        Aid and Attendance is a benefit paid in addition to the monthly pension above. It is payable if the veteran
            (1) requires the aid of another person inorder to perform personal functions required in everyday living, such as bathing, feeding, dressing, attending to the wants of nature, adjusting prosthetic devices, or protectin himself/herself from the hazards of his/her daily environment; or
            (2) the veteran is bedridden, in this his/her disability or disabilities requires that he/she remain in bed apart from any prescribed course of convalescence or treatment; or
            (3) the veteran is a petient in a nursing home due to mental or physical incapacity; or
            (4) the veteran is blind, or so nearly blind as to have corrected visual acuity of 4/200 or less, in both eyes.

        Housebound benefits are paid in addition to monthly pension if the veteran,
            (1) has a single permanent disability evaluated as 100-percent disabling and, due to such disability, he/she is permanently and substantially confined to his/her immediate premises; or
            (2) the veteran has a single permanent disability evaluated as 100 percent disabling and another disability, or disabilities, evaluated as 60% or more disabling.

Similar "death pension" benefits are available for an unremarried surviving spouse of a veteran, or an unmarried child (who is under 18, in school and under 23, or was incapable of self support before the age of 18) of a deceased wartime veteran.

If you, or your spouse, or your parent is a veteran who served on active duty during one of the times during which our country was at war, you may be eligible for Veterans Pension benefits. If the veteran is in an assisted living facility or nursing home, the veteran may be entitled to Veterans Aid and Attendance benefits.

I am an accredited VA attorney for Veteran's Pension benefits and Aid and Attendance benefits.

You can get more information about VA Pension benefits and Aid and Attendance benefits at our website.

Aging Boomers Ignorantly Blissful About Long Term Care

rcoleman@thecolemanlawfirm.net (Randy Coleman) — 2011-11-03T15:53:45Z

Ignorance is bliss! The baby boomers, turning 65 at the rate of 10,000 per day, seem to be fooling themselves into believing they won't need long term care during their lifetime.

In a recent study conducted by Genworth Financial (the 2011 Financial Reality Check Study), one of the larger providers of long term care insurance, less than 33% of the respondents believe it is only somewhat likely that they will need long term care. Only 7% think it is "extremely likely" they will need long term care.

The reality of long term care is quite different from the wishful thinking exposed by the Genworth study.

According to Medicare.gov:

        1.    This year more than 9 million men and women over the age of 65 will require long term care.

        2.    By 2020 (just 8 years away), more than 12 million Americans will need long term care.

        3.    People who reach age 65 (10,000 new ones everyday), have about a 40% chance of entering a nursing home, according to the U.S. Department of Health and Human Services.

Long term care is not only expensive, whether the care occurs in home, or in an institutional setting, it is also costly emotionally, mentally and financially for those providing long term care to family members. For more information on the impact of long term care other than the out of pocket costs, Genworth has prepared "Beyond Dollars."

Here are some statistics from that publication:

            88% of recipients of long term care said their household income was reduced by an average 34% due to the long term care event

            60% reported a need to cut back on family expenses after a long term care event

            63% said they reduced their savings by an average of 61% reduction

            49% of long term care recipients said they had not considered the possibility of needing long term care

            29% of care recipients required care for 3 years or more

Here are some quotes from family members of long term care recipients that are found in Beyond Dollars:

"Anger at my brother and sister for not helping more with our dad . . . Stress with my wife over how much of 'our time' this was taking up."

"Since my mom lives with us, we now have someone else in the house, plus caregivers 12 hours a day. For the first 38 years of our marriage, it was just my husband and I . . . This has required a change for both of us."

"We expected things to change . . . But the reality of careing for someone 24/7 changes life the way you know it. It's nothing like I imagined."

All of these quotes could have come from many of our clients who deal with long term care issues already. Blissful ignorance by the aging baby boomers is not going to take away the reality of long term care and its costs, both financial and otherwise.