Category: Elder Law

Houston Elder Lawyer Answers, “When should I start planning for long-term care?”

One of the most frequently asked questions our Houston elder lawyers receive is, “When should we start planning for long-term care?” The short answer is, “Long before you need it!”

When it comes to your home, your health and your finances, you want to be in the driver’s seat. That is why it is so important to plan now for any future care you may need. Even if you have a nice nest egg set aside for retirement, it could quickly become cracked and scrambled if you require a stay in a nursing home or need assisted living. A nursing home stay could easily cost you $6,000 to $12,000 per month. How long would your money last at that rate?

Many people realize that long-term care is a rising concern for elderly individuals. While it is true that most people living in long term care facilities are older, planning for long-term care is not something you should put off. At any point, any one of us could require long-term care. Just one accident could place you in long-term care facility for the reminder of your life.

Unfortunately, we have seen families forced into debt and even bankruptcy to meet the needs of their loved ones. This is why we discuss the need for long-term care insurance with all of our clients. Additionally, we make sure that you have all of the proper legal documents such as powers of attorney and healthcare directives in place in the event something happens to you and someone has to step in and make financial and medical decisions on your behalf.

A solid Medicaid Plan and/or Irrevocable trust may also be a wise idea in order to protect your family’s finances from the grasp of long term-care facilities, without jeopardizing your loved one’s access to benefits such as Medicaid down the road.

When setting up your plan, it is important to meet with an attorney that not just handles estates, but also elder law issues, in order to create a strategy for long-term care that will protect your family and provide total peace of mind.

If you have any questions about a long-term care plan or would like to discuss the documents that you need, contact our Houston elder attorneys at (281) 218-0880.

IRS Phone Scams on the Rise in Houston

It is tax time again, which means IRS scams are once again on the rise here in Houston and throughout the United States.  Predictably, many of the victims of this scam are the elderly, since they are often the most vulnerable.

Victims are contacted in a variety of ways, but the most common method is to reach them by phone. In the latest IRS scams going around, the scammer will claim to be an IRS agent and either ask for personal information (to steal the senior’s identity) or demand immediate payment over the phone.

If the victim refuses to give the information or provide payment, the caller may become hostile and aggressive and threaten to have the senior arrested. This insidious method works more often than you think, so we encourage you to talk to your elderly loved ones. Here are a few of the red flags you can tell them to watch for:

  • A phony IRS agent will demand immediate However, the real IRS will not call you about taxes you owe without first sending a statement.
  • A scammer will not let you ask questions or request an appeal.
  • The scammer may demand a specific type of payment such as a wire transfer or prepaid debit card.
  • They may ask for personal information such as credit card numbers.
  • The phony IRS agent may threaten to send law enforcement for non-payment.

Please be aware that some of these scammers are very convincing and they may already know some personal information that is online or apart of the public record.  But, if you suspect that the person on the other end of the line is not who they say they are, just hang up and report the call to your local law enforcement authorities.

If you are worried about yourself or elderly loved ones falling victim to these types senior scams, call our Houston elder law attorneys at (281) 218-0880 so that we can help protect your finances.

Alzheimer’s Patient Spoon-Fed Because Directive Wasn’t Specific

In 40 years, Bill Harris built up a lifetime of memories with his wife, Nora, but since she was diagnosed with early onset of Alzheimer’s seven years ago, things have changed.

“She doesn't really make words sometimes,” said Harris in an article on KGW.com entitled “Man says state ignoring wife's wishes in advance directive.” 11-07-16

For Harris, this tough situation got even more difficult with the decision of a southern Oregon judge this summer. The judge, in effect, “condemned her to ride out Alzheimer’s to the bitter end,” said Harris. He says it’s exactly what she didn’t want.

When Nora was told of her diagnosis, she completed an advance directive to be certain that her illness wouldn’t be prolonged. She believed when it wasn’t mechanically possible to eat by herself then she wanted to let nature take its course. However, now she’s stopped eating by herself and is being spoon-fed at a nursing home because, according to the judge’s ruling, her advance directive wasn't specific enough.

Still, the advance directive forms usually only cover getting fed through a tube, creating a conflict between two laws. An advance directive allows you to elect what happens if you become incapacitated, but the state law is there to make sure that care facilities do their job.

Advanced directives should be as specific as possible.

“What they did was basically sentence her to have to experience the full gamut of Alzheimer's,” said Harris. He said he also wishes the judge would have ruled in the spirit of the law and not the letter.

The advance directive law has limitations, but the legislature could amend the law so someone can make decisions on a loved one's behalf. However, now the best option is to be as specific as possible when filling out an advance directive.

Reference: KGW.com (Sept. 19, 2016) “Man says state ignoring wife's wishes in advance directive”

Saving the Home with Long-Term Health Care Demands

The largest asset most people have is their family home. If a senior is in a situation where his or her long-term care insurance is exhausted and the other assets are used to pay for care, how does one protect the home from being taken?

Long-term care insurance is important; however, it’s also critical to review and revise your financial and estate plans regularly as your situation changes, according to NJ 101.5’s article “Medicaid and protecting your home.” 10-27-16

Speak with an experienced estate planning or elder care attorney to plan for your individual circumstances. You should also have your will, general power of attorney, advance health care directive or other estate planning documents reviewed or drafted.

As far as how Medicaid works, it has both income and asset limitations that require a recipient to become impoverished to qualify. For Medicaid eligibility, your primary residence is exempt provided you or your spouse live in the house or intend to return to the house to reside. That said, Medicaid will have an automatic lien on any interest in a residence in your name equal to the amount of Medicaid funds you receive. The program will execute on that lien when the home sells or upon death—unless the recipient’s spouse remains an owner of the residence.

To keep people from giving away their property to qualify for Medicaid, there’s a penalty for the transfer within five years of applying for Medicaid. The penalty is calculated by dividing the value of the assets transferred by the state’s Medicaid average monthly cost of a nursing home. The penalty period starts only after an individual enters a nursing home and would otherwise be eligible for Medicaid, not at the time of the transfer. During that time, Medicaid won’t pay for the nursing home. Private funds have to be used.

There are exceptions for undue hardship but these are rare. One exception is for the transfer of a residence to a child who has lived in the home for at least two years before the applicant enters a care facility and who during that period provided the applicant with care and services that enabled that person to live at home. In that situation, the transfer of the house to the child doesn’t result in a penalty. The house won’t be subject to a Medicaid lien.

Similarly, gifts and sales that are less than fair market value within five years of applying for Medicaid are subject to a penalty. But before a transfer is made, there are also income tax considerations which may significantly impact both the transferee and the applicant. If there is no mortgage, another option is a reverse mortgage, which lets you withdraw the equity in the property with the loan being paid back at death or once the property is permanently vacated.

Medicaid is a complex and constantly changing area, so talk with an experienced elder law or Medicaid planning attorney who is current on all the rules that may impact your decisions.

Reference: NJ 101.5 (September 12, 2016) “Medicaid and protecting your home”