New York Elder Law Attorney Blog

This week our New York elder law attorney, Bonnie Kraham, Esq., published yet another article in the Times Herald-Record in order to help spread information about elder law and estate planning issues. Many area residents understand the need to conduct this future planning, but they are not exactly sure what is included in one of these plans. That is why in this latest piece Ms. Kraham shares information about the actual documents that are commonly part of the planning process.

For example, most plans include a revocable living trust (RLT) and an irrevocable Medicaid asset protection trust (MAPT). These tools protect assets from probate and ensure that those valuables are protected from nursing home costs. However, the MAPT need be created at least five years before the long-term care is needed. For families with a higher net worth, separate trusts may need to be created--one for each spouse--with the benefit of doubling the estate tax exemption.

In addition, inheritance trusts are often added to plans to help keep assets in the family bloodline and protected from divorces, lawsuits, and creditors. This ensures that grandchildren actually receive an inheritance instead of in-laws or strangers.

Documents like a power of attorney and health-care proxy are also created so that legal affairs and medical decision can be accounted for in case of disability. Burial instructions are helpful as well to ensure that wishes are carried out exactly as desired. In addition, final instructions are an important--and oft forgotten--part of these plans. This information these instructions contained is directed to your friends and family and shares vital information (PIN numbers, access codes, etc.) and contact information to help them in case of disability.

Personal property is usually not included in a trust, so a memorandum of personal effects is created where a benefactor explains what items (jewelry, collectibles, etc.) are left to which beneficiary. By having these items listed separately an individual is free to change their mind without having to change a legal document.

Continue reading "Elder Law Estate Planning Documents Explained by New York Elder Law Attorney" »

by Michael Ettinger, Esq.

Long-term care insurance (LTCI) and the Medicaid Asset Protection Trust (MAPT) are often thought of an alternatives to each other. They are not. While LTCI is both a shield and a sword, the MAPT is a shield only.

LTCI protects your assets and income from the costs of care. But it has a positive effect (the sword) in that it actually pays for someone to come into your home and care for you there. The MAPT protects assets, like your home and your life savings, but it does not protect your income (pensions, social security, interest, dividends, etc.). The MAPT has no positive effect in terms of providing care. It is solely a defensive tactic. That being said, in the event LTCI is unavailable to the client for medical or financial reasons, the MAPT is a wonderful tool. And there is truth in the saying that a good defense is the best offense. With the MAPT in place five years ahead of time, the client's assets are protected and Medicaid will pay for the cost of care, over and above what your income provides. If you have a spouse at home, they may keep about $3,000 per month of the couple's combined income and sometimes more.

Our stated preference for clients is LTCI, if available. Most clients would prefer to "age in place" or, in other words, stay in their own home and receive home care if needed. Here, the LTCI stretches your dollars, to allow you to remain in the home for years more than you might have been able to afford otherwise. If your spouse is unable to care for themselves, it allows you to call in extra help so that you do not wear yourself out acting as a caregiver in your later years.

Some clients have adopted a hybrid approach when it comes to LTCI and the MAPT. They purposely underfund the LTCI, say taking a $200/day benefit ($6,000/month) instead of a $400/day benefit ($12,000/month). They also establish the MAPT and transfer their assets to the trust. The thinking is that the $200/day will pay for the home care that they may need and want, at half the cost of the full policy. On the other hand, if they end up in a nursing home, they won't lose their assets due to the $6,000/month they may be short, and Medicaid will pick up the difference.

There are no right and wrong answers in deciding which is the best avenue to take when considering protecting your assets from the high costs of long-term care. We have found, however, that an open discussion between the client and the experienced elder law attorney, with all of the facts and circumstances on the table, often yields the most satisfactory result.

by Michael Ettinger, Attorney at Law
The Medicaid Asset Protection Trust (MAPT) is a technique commonly used by elder law attorneys. It consists of an irrevocable trust, usually set up by a parent of parents sixty-five and older. One or more of the adult children are named as "trustees" to manage the trust for the benefit of the "beneficiaries" who remain the parents during their lifetimes. For example, the parents retain the right to the exclusive use and enjoyment of the home and the income from all of the trust assets. The establishment and "funding" of the trust, i.e. retitling the home and the investments in the name of the trust, starts the five year look-back period running. After five years, those assets become exempt and are protected from the costs of long-term care.

Once the MAPT is established, there are certain things the parties can and cannot do. Below are a list of the "Do's and Don'ts" concerning the MAPT.

Do make all transfers to your trust, as advised by the law firm, in a timely manner.
Do use trust assets for repairs or improvements to the home or other property in the trust.
Do use trust assets for payment of real estate taxes and homeowners insurance.
Do take dividends and income on trust assets on at least a quarterly basis.
Do call the law firm when you wish to make a gift from the trust to any of your beneficiaries.
Do call the law firm when a Grantor needs Medicaid benefits or dies.
Do call the law firm when personal or financial circumstances change significantly.
Do call the law firm if you wish to change trustees or break the trust.
Do provide your homeowner's insurance company with the "letter of instruction" and a copy of the trust for real property transferred to the trust.
Do provide your CPA or tax preparer with the "letter of instruction" regarding the trust tax return
and the "letter of instruction" tax deductibility of legal fees.
Do choose your trustee carefully to avoid the expense (and unpleasantness) of changing
the trustee.
Do call the law firm if you want to take out a reverse mortgage on the property in the trust.

Don't use trust assets to pay telephone or utility bills.
Don't use trust assets to pay personal expenses.
Don't use trust assets to purchase an automobile.
Don't take principal or capital gains from trust assets.
Don't transfer IRA's or 401(k)'s to the trust.
Don't allow beneficiaries to return to the trust or the Grantor any gifts made from trust assets.
Don't make additional transfers to the trust without advising the law firm.