Legal Issues as You Age: Control your destiny. Don t let others do it for you. Kris L. Maser October 20, 2014

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1 Legal Issues as You Age: Control your destiny. Don t let others do it for you. Kris L. Maser October 20, 2014

2 What is Life Care Planning? Wealth Accumulation Dealing with unplanned issues along the way Leaving a Legacy

3 Disability Planning Tools Advance Directives Durable Power of Attorney Health Care Directive DNR / DNI Designation Nomination of Guardian / Conservator POLST

4 Advanced Directives Powers of Attorney (POA) Statutory Short Form POA Common Law POA IRS POA

5 Advanced Directives Power of Attorney for Financial Affairs Name Individual to Manage your Financial Affairs Power of Attorney Dies with Principal Limitations on Authority Gifting/Self-Dealing Springing

6 Advanced Directives Must Read Document to Know What Authority is Allowed Property A M Powers Self-Dealing Gifting

7 What is a Health Care Directive & History of the Health Care Directive in Minnesota

8 What is a Health Care Directive (HCD)? Defined by Minn. Stat. 145C.02 Executed by a principal with capacity One or more health care instructions for others to follow May include a Health Care Power of Attorney to appoint a Health Care Agent in case the principal lacks capacity

9 HCD History in Minnesota Living Will 1993 Durable Health Care Power of Attorney 1998 Health Care Directive Minn. Stat. 145C 2009

10 Why is it important to have a Health Care Directive & What can happen if you do not have a Health Care Directive

11 Importance of a Health Care Directive Protects your right to make medical choices - even if you are unable to speak for yourself!

12 Importance of a Health Care Directive If your Health Care Agent is available, he/she will know your wishes and speak for you. If your Agent is unavailable, your physicians can use your HCD to help guide them until an Agent can be reached or until you can communicate for yourself.

13 If you do not have a Health Care Directive There is no way to insure your treatment preferences are followed. You will still receive medical treatment if you don t have a HCD and cannot speak for yourself.

14 If you do not have a Health Care Directive You may need appointment of a Guardian to make personal care decisions Guardianship requires a court proceeding

15 Distribution Plans/Probate vs. Non-Probate Assets Intestate Will Revocable Trust Joint Tenancy Beneficiary Designation

16 Probate vs. Non-Probate Assets Probate Assets Held in Decedent s Name Alone Non-Probate Assets are with a Joint Owner, Designated Recipient, Beneficiary or Trust

17 Advantages of a Will Ease of Establishment Simplicity During Life No Need to Retitle Assets

18 Disadvantages of a Will Requires a Probate of Your Estate Some Loss of Privacy More Expensive for Heirs

19 Trusts Inter Vivos Trust (Set up During Lifetime) Revocable Irrevocable Testamentary Trust (Set up Upon Death in a Will)

20 Advantages of a Revocable Trust Maintain Privacy of Assets & Family Matters Avoid Probate of Your Estate Disposition of Assets at Death Provides Management of Your Assets (if you become incapacitated) Tax Planning

21 Disadvantages of a Revocable Trust Cost to Establish Cost to Administer May Not Save Taxes Creditor Claims not Cut Off Requires Constant Vigilance

22 Wills: Revocable Trusts: - Can be Used to Plan for - Can be Used to Plan for Estate Tax Estate Tax - Only Effective at Death - Effective Immediately & Distribute Property - Public - Private - Involve Complex Legal Rights - Involve Complex Legal Rights - Must go Through Probate - May not go Through Probate - Should be Stored Properly - Should be Stored Properly - Affairs Stop Upon Your Death - Continuity in Your Affairs

23 Eligibility for Medical Assistance Minnesota Resident Blind, Disabled or Over Age 65 Meet Financial Eligibility Rules

24 Excluded Assets Homestead (possibly) One Vehicle Tangible Personal Property Pre-funded Funerals Supplemental Needs Trust Special Needs Trust

25 Unavailable Assets Certain Jointly Held Assets Assets of Unprobated Estate Property Involved in Pending Legal Action Certain Trusts (Most Deemed Available) Certain Annuities (Most Deemed Available)

26 Spousal Impoverishment Rules Income of Community Spouse Protected (for now) Spousal Share of Assets Protected until Death of Community Spouse

27 Spousal Impoverishment Rules (cont.) Income of Institutionalized Spouse may be Allocated to Reach $1,940 Base Allowance (for Community Spouse) Additional Allocation to Provide Needed Shelter Costs up to $2,931

28 Asset Assessment Date First Day of Continuous Stay (of 30 Days) in Skilled Care or Date of Long Term Care Consultation and Receipt of Community Services Covered as Long Term Care

29 Asset Assessment ½ of Assets to Community Spouse or Minimum ($33,278) or Maximum ($117,240) or Additional Allocation to Provide Needed Income $3,000 Allowed for Applicant (Skilled Care)

30 Look-Back The look-back period for transfers or gifts is 5 years (60 months)

31 Transfer Rules Exceptions To Community Spouse To Representative of Community Spouse To Disabled Child Undue Hardship

32 Homestead Transfer Exceptions To Spouse To Minor or Disabled Child To Son/Daughter 2 Year Caregiver Rule Equity Interest Sibling Residing There

33 Asset Reductions Prepaid Funeral Plans Vehicle Household & Personal Items Homestead Maintenance/Repairs

34 Asset Reductions (cont.) Care Costs Personal Services Agreements Debt Reduction Pooled Trust

35 Estate Recovery Issues Claim Exists for Benefits Received by Self/Spouse Collectable only on the Death of the 2 nd Spouse

36 Veterans Benefits

37 Who Should be Assisting Veterans? Family member Accredited Agent or Attorney Agent through VSO County VSO

38 Veteran s Benefits Federal Benefits State Benefits

39 Veteran s Administration Two Branches Veteran s Health Administration Veteran s Benefits Administration

40 Veteran s Health Administration VA Hospitals/Nursing Homes Prescription Benefits Outpatient Dental Services for the Blind/Hearing Impaired

41 Veteran s Benefits Administration Compensation for Service Connected Disabilities Home Loan Guarantees Special Monthly Pension Burial Benefits Life Insurance

42 Veterans Administration Benefits Service Connected Disabilities vs. Non-Services Connected Disabilities

43 Veterans Administration Benefits Basic Eligibility Criteria - Low Income Pension - Housebound Benefits - Aid & Attendance

44 Veterans Administration Benefits Determining Eligibility - Assets - Income Limits

45 Veterans Administration Benefits Assets Sufficient Means Standard Used to be approximately $50,000 for Single Vet Used to be approximately $80,000 for Vet with Dependent

46 Veterans Administration Benefits Assets Example #1 75 Years $30,000 Assets Medical Need

47 Veterans Administration Benefits Assets Example #2 90 Years $30,000 Assets Medical Need

48 Veterans Administration Benefits Income Limits (Low Income Pension) Vet with No Dependents $12,652/year Vet with One Dependent $16,569/year Widow(er) with No Dependents $8,485/year

49 Veterans Administration Benefits Income Limit (Housebound Benefits) Housebound Vet with No Dependents $15,462/year Housebound Vet with One Dependent $19,380/year Housebound Widow(er) with No Dependents $10,371/year

50 Veterans Administration Benefits Income (Aid & Attendance) Vet with No Dependents $21,107/year Vet with One Dependent $25,022/year Widow(er) with No Dependents $13,563/year

51 Veterans Administration Benefits Income: Gross Income Minus (-) Ongoing/Recurring Medical Expenses

52 Veterans Administration Benefits Income Example: Married Veteran $2,500 / Gross ( 192) Medicare ( 208) Supplemental Insurance ( 200) Drugs ( 700) Day Program ( 60) Over-the-Counter Medications $1,140 Net Income

53 Veterans Home Eligibility Minnesota Resident or Service Credited to Minnesota Honorable Discharge 181 Days Active Duty Spouse of Eligible Veteran Spouse must be Age 55+ Medical Need

54 Veteran s Home Transfer Rules Prior to Admission All to Spouse (Must be Income Producing if Income Allocation Received) To Non-Spouse One Year Prior to Admission

55 Veteran s Home Transfer Rules No Gifting if Receiving Income Allowance No Services Payments Allowed

56 Veteran s Home No Estate Recovery No Spousal Asset Limit Income Allowance Fixed Allowance and Individual Allowances Certain Expenses

57

58 Elder Care Confusion

59 A Life Care Plan Puts The Client First

60 Medicaid ALF/NH Continued care follow up 6 month follow up VA Benefits The Life Care Planning Process 6 month follow up Annual assessment Action Plan Estate Planning Meet with attorney and life care coordinator Assessment of needs Address problems with care Annual assessment Placement 6 month follow up Financial Planning Medicaid application home Change in Financial situation

61 Disclaimer: This has been prepared for general information purposes only. This information is not legal advice. Legal advice is dependent upon the specific circumstances of each situation. The information contained in this presentation should not replace the advice of competent legal counsel licensed in your state.

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