Friday, September 16, 2011

Is Medicaid Too Complex for Americans?

Medicaid complexity is a real problem. For those not familiar with program specifics, Medicaid - not Medicare - is the program Americans rely on to receive their long-term care. Long-term care is extraordinarily expensive – in fact, it is the single most expensive creditor Americans are likely to face.  Unfortunately, understanding the various Medicaid rules is a monumental task for the average layperson, and to properly qualify for the program and protect one's assets, it often it takes an experienced professional and a complicated asset protection plan.

Why is Medicaid so complex?  One reason may be due to the fact that Medicaid is a joint state and federal program, and planning to receive (either for you or for a client) this public benefit often involves tax planning, too.  Proper Medicaid planning requires an understanding of several complex bodies of law. 
While some of these quotes are humorous, it is no laughing matter that Americans, by and large, do not realize that Medicaid is available to the middle class.   Protecting assets from long-term care expenses can enable a family to pass an inheritance on to their children that otherwise would not have been available; it allows for the recipient to enjoy an enhanced qualify of life while alive; and it gives peace of mind and security to the family members.

Here is a glance at what the courts have had to say about Medicaid complexity over the last thirty-five years. 


The Second Circuit commented the absurdity of any law or regulation 7 subsections deep.  For example:

“As program after program has evolved, there has developed a degree of complexity . . . regulations which makes them almost unintelligible to the uninitiated . . . [a] draftsman who has gotten himself into a position requiring anything like [§139a(a)(10)(A)(ii)(VIII)(cc)] should make a fresh start.” Friedman v. Berger, 547 F.2d 724 (2nd Cir. 1976).


The United States Supreme Court has called the Medicaid laws:

“an aggravated assault on the English language, resistant to attempts to understand it.” Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981).


The Second Circuit calls the Medicaid statute one of:

“unparalleled complexity” in DeJesus v. Perales, 770 F.2d 316, 321 (2nd Cir. 1985).


In a case arising out of Maine, the District Court called Section 1396a(a)17) of the Medicaid statute:
“a virtually impenetrable thicket of legalese and gobbledygook.” Lamore v. Ives, 1991 WL 193601 (D.Me.)


The Fourth Circuit called the Medicaid Act:

“one of the most completely impenetrable texts within human experience” and
“dense reading of the most tortuous kind.” Rehab. Association of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994).

Medicaid complexity is a problem for all Americans.  Most Americans will need some form of long-term care, and of those that do, such care may be a nursing home stay.  The average private nursing home room costs nearly six-figures every year, and the average nursing home stay is close to three years.  Medicaid is available to anyone who can qualify; unfortunately, there are many public misperceptions when it comes to Medicaid.  Contrary to public belief, a person does not need to be "poor" to qualify.
At this point in time, the laws are so complex that it is recommended that any person contemplating long-term care speak with an experienced elder law attorney.

Image: Master isolated images /

Living Trust Plus ™ News

Living Trust Plus ™ News

Friday, September 9, 2011

The outlook on Gold

In this day and age, is gold a worthy investment?  CNN reports:

There are many ways to plan for the future - IRA accounts, Medicaid Asset Protection Planning, pension accounts, savings accounts, bonds, etc., - but gold is gaining popularity amidst market volatility.

Thursday, September 8, 2011

“How do I obtain a death certificate?”

If you have lost a loved one and are now attempting to close out their estate, we are sorry for your loss and we understand how frustrating the process can be.
The steps to take after the loss a loved one can be overwhelming, but requesting a death certificate is a great place to get started.  You will need a death certificate to complete many of the administrative tasks that you will face in the weeks to come, so it only makes sense to order a copy of this as soon as possible. While the exact process to order a death certificate can vary from county to county, there are basic guidelines that you can follow to make the request for a death certificate as quick and easy as possible.

Let’s take a look at these guidelines:
It is smart to order 8-10 copies of your loved one’s death certificate. As mentioned above you will need them for many tasks over the next few weeks, so it’s best to have them on hand. The easiest way is to order them through the funeral home, as there is generally a lag time when you order straight from the county recorder’s office.

Make sure to have the following information readily available when filling out the request:
  • Full name of the deceased
  • The date of death
  • The place of death
  • The deceased’s date of birth
  • The purpose of your request
  • Your driver’s license number
  • Provide a self-addressed stamped envelope along with your request
  • Typing or printing the information is helpful
If you are still not sure how to properly obtain a death certificate for your loved one, or you need to know whether or not you should obtain one based on your responsibilities, visit the senior citizen and estate planning resource page now, brought to you by Elder Law Attorney Evan Farr.

Wednesday, September 7, 2011

More Boomers Stuck Raising Kids Kids

Baby Boomers are raising their grand-kids, reported earlier this year.  While it may not come as a big surprise given the difficult economic times,one  can't help but wonder what else may be going on?  For one, there are 76 million Baby Boomers in general.  Second, Baby Boomers have been referred to as the "Sandwich Generation" because they care for their parents and their own kids...and now many are faced with the task of a third responsibility? 

Other factors at play: According to a social worker cited by SecondAct, the factors include:
  • a decline in the number of traditional foster parents;
  • an increase in the number of reports of child abuse/neglect due to various factors like parental substance abuse, mental illness and incarceration; and 
  • death or deployment of a parent
"The number of children living in a grandparent's home has increased significantly over the past decade, according to 2010 data from the U.S. Census Bureau. The report showed that 4.9 million children  under the age of 18 (7 percent) live in grandparent-headed households -- an increase from 4.5 million 10 years ago."

When asked about the special challenges older Boomers might face, one social worker had this to say:
"More than 1 in 4 of these older parents have a disability and may be unable to attend to their own medical needs due to lack of child care, respite care or adequate health insurance. They are frequently stressed at a time in their lives when they did not expect to care for children." 
Read More Here 

Remember,  if you have one or more children at home under the age of 18,  you really need a Child Protection Plan. Without such a plan, if you are killed or incapacitated in an accident, the police will typically show up at the house to notify family. But if the police find your kids home alone, or with a babysitter, they will have no choice but to call in Child Protective Services and have your kids removed from your home until the system can figure out what to do, and that may take weeks or even months.

Important Planning Considerations for Seniors and Families with Special Needs Children

Friday, September 2, 2011

Complications: Divorce and Special Needs Children

Divorce is a challenging process for everyone. If you have a child with special needs, the choices you make during a divorce can have lifelong repercussions, both for you and for the child. It is not always in the best interest of a child with a disability to receive a large award because child support could cancel the child's SSI and Medicaid benefits.

But this is not the only problem child support forms for a child with special needs; a complicated process that the Social Security Administration (SSA) uses to evaluate household income can also wreak havoc with SSI and Medicaid benefits.

When a disabled child lives in a household with other people, the SSA takes into account the income of everyone who lives with the disabled child when it calculates eligibility for benefits. This is known as "income deeming." The SSA applies a formula to define what portion of the household income applies towards eligibility. If the total household income is too high, the disabled child can lose SSI and Medicaid.

In families going through a divorce, income deeming becomes particularly important for two reasons. First, a child with special needs may have siblings who are also receiving child support from an absent parent. In these cases, that additional child support will count as household income and could place the SSI recipient's benefits in jeopardy. Second, the choice of parent who will have custody of the child (the custodial parent) could throw off an SSI benefit if one parent's household income is significantly different from the others. In many cases, loss of SSI benefits is not a key factor in choosing a custodial parent. But in other cases, specifically when the child receives significant benefits from SSI and Medicaid, the choice of a custodial parent could make a tremendous difference for that child's welfare.
Image: africa /