Achiezer: ElderCare Plus. Mr. Ronald Spirn, JD, CELA: Asset Protection

for the future and our presenter will be Mr Ronald spurn just two technical details please put your phones on vibrate so that we don't interrupt each other I realize that everybody who's coming to an elder care conference needs to take care of somebody and wants to be in touch the other thing is the reason I handed each of you as you entered an index card is the way we are going to be doing questions is please write your questions on the index card pass them to me I'll be up here in the corner and we will take the questions via index card if you need a 10 they should be in your wonderful azra souvenir bags okay so with no further Ado it's my great pleasure to introduce Mr Ronald first thank you uh good morning uh it's a pleasure to uh be here uh today presenting uh with aer's Elder Care Plus uh event we're going to be here all day and we want to be as resourceful and uh as supportive as possible and uh I know noticed that among all of the wonderful presentations and and vendors and providers that are here today that a lot of the program is geared toward the social and medical model type issues that come up caring for a parent long distance and very few of the programs are devoted to money now the title of this uh presentation is called uh something Financial planning or planning for the future strategies really what this program is about is about protecting your assets or the assets of your parents or loved ones it's about asset protection and asset protection is all about paying for long-term health care so I handed out uh these uh outlines and it's pretty brief because the basics of elder law and I'm an elder care attorney um are almost Universal New York state New York City it it Narrows down a little bit but uh the needs are almost Universal so I have a limited amount of time all right like all of us and in about 40 minutes that are remaining and we're going to leave the last five or so minutes for Q&A uh we have about 35 minutes to get through the materials and that is why the materials are not very lengthy they're not onerous you don't see tons of description there are no figures there are no dollar amounts on the outline because the outline itself like today like the entire event is meant to stimulate and to hopefully invigorate the caregivers to do what needs to be done on behalf of ourselves or our loved ones so the foundation of any solid elder law plan has to do with Advanced Directive documents you have to have the correct forms and documents um in order to be able to really Implement a plan of action now if I'm dealing with uh the uh individual themselves the senior the parent or grand parent themselves so that's one thing however if I'm working with um I'm okay you want me to move forward tell me why you want this louder no just cuz you hear me in there okay you don't even need this you could just have me and I'll take this thank you okay you got it then I'll have the screen blocking me okay hopefully that'll work okay housekeeping um so the the foundation of any elder care plan needs documents because even if I'm dealing with the individual themselves who's to say that a year or a decade from now that person will not really have um the sharpest uh uh capabilities capacity and uh abilities to do what needs to be done so we want to see immediately threshold and foundational items that that have to uh do with sorate decision making there are a lot of different powers of attorneys there are a lot of different forms out there you can go online you can just download a form but like so many other things when we do it ourselves it may not have uh the um what we need in order to achieve our desired results and I see that a lot so um it's extremely critical that not only one have the form but that the form also be drafted properly so a power of attorney is a document that gives another person or persons the authority to make legal or financial decision making on behalf of the parent let's say the person who made the power of attorney the number one question that I get in regard to a power of attorney is well if I sign a power of attorney and name my daughter and son does that mean that I can't make any decisions anymore and the answer is absolutely not a power of attorney is not a document that is meant to limit the principle the parent in any way but it's meant to uh enhance the capabilities of having family members or loved ones step in and act on behalf of the parent should the time come should the need arise for substitute decision making uh to come into play now I said or I mentioned that you could have more than one agent on a power of attorney so if someone has a children or an common to name spouses of course if capable to uh act as a power of attorney agent you can name more than one person at a time you could name one person and then you could have a successor agent after that so there are different styles and different approaches there are chairs seats over here come on in it's not going to interrupt me um that uh can be tailor made to fit the specific needs so again it's really important to have someone who can guide you and um uh uh show you the proper or the best ways based upon your needs how to have that document drafted properly there's a document there's a power of attorney that's called the springing power of attorney now I've very rarely get involved with springing Powers of Attorney a springing power of attorney uh says that um my power of attorney uh does not operate until such time as I become incapacitated so we don't really want um uh uh to wait for some incapacitating event for then a child or a family member to be able to act because sometimes it may not be uh convenient or appropriate even and it's better for the parent to see how that uh child uh acts um while the parent is gun while the parent is capable of observing and participating in the decision making so for a variety of reasons I'm not a big fan of a springing power of attorney also you need to get a letter from a physician who says that the person is incapacitated and if you can't get the doctor or it's not you don't get the letter so we try to uh only name uh as a power of attorney an agent under a power of attorney someone who is very trustworthy um someone who is capable or at least knows to pick up a phone and say let me call up the lawyer let me call up the accountants and uh uh take care of these issues so if we don't have a power of attorney and a family comes to me and says oh uh mom uh has been living at home uh and she's been getting private pay care for the last four years and she fell and she broke her hip uh and she's a little Ava bottle she's out of it a little bit and you know we never did any planning we want to get Medicaid okay we'll get into to that in a few moments I say well do you have a power of attorney no why well a mom didn't want to do it she thought she was giving up control or we went to a lawyer it was too much or we're not into that okay so I said well being you don't have a power of attorney puts us immediately way behind the eightball because now if we don't have legal authority to act on behalf of the parent how can I submit a medic application how can I create an asset protection trust how can we shelter a house with a deed transfer so a power of attorney yes is tremendously powerful and is capable of doing you know anything practically virtually anything you can think of a power of attorney can do on behalf of the parent so those are a legal and financial decisions what about medical or health related uh decision making well we have a couple of seats up here gentlemen two one one two some in the back we only need two so a uh a healthc care proxy is a is another legal document it's not a medical document it's a legal document that has to do with medical related issues and decision making and the same way that if for parents did not uh create these documents that we call Advanced directives because the parent is giving direction uh to the world in advance of a disabling um uh uh situation uh what to do then not only if there's no power of attorney can the family not make financial and legal decisionmaking then if there is no Health Care proxy the family lacks the ability to make medical decision making now we're not talking about um minor decisions and there are always exceptions and if the hospital knows the doctor who knows the person then come on up then um careful then the uh the hospital or the doctors are not able to um act on behalf of the parent so that becomes another limitation so I advocate I urge everyone okay people in their 30s and 40s maybe not even in their 50s don't think about it it's different stations in life people are focused on raising children and having grandchildren and then it kind of shifts and that's what of course you know we see um and if we don't have these documents in place we're at a tremendous loss and when we lose time in this maive in this situation it's all about money just going up like like air it just evaporates at a rate of thousands of dollars either a week certainly a month I'm astounded when families come in and they say oh we're paying we have uh uh two ladies are coming and taking care of our mother and it's costing us um $1800 a week so all of this um relates back to uh having the ability to act on behalf of our parent or loved ones so a power of attorney financial and legal decision-making a medical proxy about uh medical decision making um now the other healthc care related document is called a living will a living will is a very serious um document it's an end of life decision-making document that has to do with unfortunately somebody who is not able to survive on their own and without medical apparatus breathing tubes feeding tubes um artificial nutrition and respiration all all of that is in of itself a tremendous uh um issue that can come up and crop up in uh the Elder Care Continuum so um there are two types of living wills for purposes of this discussion wait they're taking pictures don't me good thank you um there's a standard living will right and there's a halakic living will so as you can tell I'm not a rabo I'm not a posac and I always recommend that um my clients who are interested in uh pursuing and and of course I can prepare both most attorneys Elder Care attorneys can um uh leave that up to my clients and their rabinal decision-making uh uh needs to tell me what type of living will they want but it is an endof life decision-making document so it's extremely uh uh serious all right those three documents are as I said you'll I'll just keep repeating it are the foundational items of any elder care plan without those if we don't have a principal an individual who uh has complete uh capacity then uh it becomes very difficult to make decisions come on in here you go all children I just want to get over than we're going I'm going to try to get the questions at the end write it down right I appreciate the break but okay no problem you have one more seat up here if you want to okay there's one seat over here okay standing on the ground three is running not because of me all right Part B under elder law living trusts why am I already jumping to an intermediate or some would say an advanced topic uh like trusts right after talking about the basics because the living trusts and we're going to talk about two different type of trusts revocable trusts we'll talk about those for about 30 seconds and then irrevocable trusts we're going to devote most of the time addressing a trust is an agreement and generally the purpose of the trust agreement in our discussion in our realm is to be funded with assets how do assets go into a trust by changing the time on the asset if it's a house we do a deed if it's a bank account we retitle the bank account so assets go into a trust a revocable trust I'm going to boil it down very very simply is mainly to help a family avoid probate probate is the process that an individual's estate needs to go through after they die and have to uh distribute the assets and make sure the executive is appointed so um I'm sorry the trustee is appointed uh that's the basics of a trust when it comes to elder law and asset protection planning then we can only talk about an irrevocable trust those are asset protection trusts and an irrevocable asset protection trust is almost universally all the time utilized in the context of doing long-term care or Medicaid planning and when I talk about paying for Health Care uh in a few minutes then um we'll uh we'll touch upon that as well okay so an irrevocable asset protection trust as I mentioned is a is an agreement and in the agreement uh contains all of the provisions that the family uh will feel is important of course under the guidance and advice of an attorney so the irrevocable trust will name the trustee name the backup trustees it'll say that the trust is for the benefit of the parents if they put a house into it it says that the parents are permitted to reside in the house for the remainder of their life time and uh all the other issues that come up we can put liquid assets into the trust we can put real estate we can put brokerage accounts and by putting the assets into this irrevocable asset protection trust if a family uh comes to me and says uh dad needs Medicaid home care services we don't have money so when a person puts their assets into such a trust then they're able to qualify for Medicaid community-based home care services within 30 days a maximum of 90 days it depends if you're in the five borrows or it depends if you are in the um uh you're in nasau County so um the uh asset protection trust is a legal method it complies with the federal um Medicaid regulations and it says if it's such a drafted trust it can go into uh this trust and then the assets are legally not considered available to um anyone to any creditor and that's a legal way of Sheltering assets so if the parent is able to stay at home in the community then that's great that's excellent because it works they're not going to have to worry about any lead time as opposed to and to be distinguished and differentiated from someone who needs nursing home care so if somebody needs nursing home care then everywhere in the country including New York City you have to wait 5 years the point being that this trust is either going to work immediately if somebody needs Medicaid home care and they don't want to you know what even if they did want to but if they need to shelter their assets then this trust is the best way to achieve that objective more about that when we get down uh in a few minutes to paying for long-term healthc care take a Sit everybody knows what a last will in Testament is you have to have a last will in Testament will the world come to an end if somebody passes away they die and they don't have a will no but one never knows what issues can come up in the realm of Assets in the realm of disgruntled family members in the realm of of uh just having things organized in order who is the executive if the executor my daughter moves to Arius Ro then who's the backup so I don't have a gap I don't have any type of Separation um well I'm not here anymore in the example but that the family doesn't have to deal with those issues it's not going to fall on the person who does or does not make the will it falls on the survivors so last will in Testament very very important and uh everyone uh to the extent possible should uh have one paying for long-term health care and this is really uh going to be the uh the heart of our discussion now the advanced directives and the trusts those are all uh threshold items those are Gateway items that we need to address and uh pay attention to before we can even get to the next uh section which is paying for health care so I made it very easy there are only three ways uh known to humanity that long-term care uh can be paid for now what do we keep saying long-term care people have Medicare people have uh Empire Senior blue Choice people have United Healthcare Oxford and uh all sorts of insurance coverage well those types of insurance uh uh uh coverages only cover medical care and very very limited uh posts surgical postm medal type of care certainly there's no long-term coverage that uh comes as a result of having Medicare so Medicare will pay for hospital visits uh surgery doctors people get metap uh insurance policies I believe that one of the presenters today is going to be talking about uh those types of uh um uh uh issues but that's all Medical Care situations and conditions that the uh individual is meant to uh you know get better from so somebody had surgery hip surgery so there's postsurgical and there's a physical uh therapy there's wound treatment it could be in a nursing home it could be at home for a few weeks covered by Medicare but once it goes beyond in a nursing home setting 100 days maximum and there are co-pays and all sorts of moving variables or at home 3 or 4 days a week 3 or 4 hours each visit 3 or 4 weeks finished if the parent if the loved one still needs care with the activities of daily living Medicare pays precisely zero and the only way to pay for that care the only three ways are cash private pay and we see people paying a tremendous amount of money and if they have the wherewithal and that's the way they want to go beautiful no problem get a power of attorney get a a a healthcare proxy you don't know what could happen in the future um okay private pay number two long-term care insurance I know that we have presenters and vendors today also who uh uh deal with uh getting folks uh situated with long-term care insurance so if I need uh assistance with uh three two three four for sure of the uh six activities of daily living which are bathing toileting dressing feeding walking and transferring transferring means getting um uh in and out of bed unassisted uh on and off of the couch by oneself which I sometimes have problems a little bit especially on a shish afternoon it's a different issue but if somebody needs help with a couple of those items and for sure if the parent or the person is incontinent that's when the long-term care coverage will kick in there are elimination periods you got to pay your premiums you get okay you could have two years three years five years very very few people I see getting lifetime coverage very expensive but if a person has the means they have the wherewithal and the finances Good so that now gets us to the third and I'm going to have to say in my 22 23 years experience as a certified elder law attorney the most common method of paying for long-term care is the medic a program if you Google Medicaid you will get a 100 different hits all about Medicaid there are so many Medicaid programs SSI food stamps uh all sorts of Public Assistance section Aid housing a Medicaid for the poor and when you ride around any neighborhood you see on the sides of city buses they're advertising Medicaid uh Wick women infants and children these are all different programs that go under the federal heading of Medicaid uh type services but what we're talking about is very very narrowly defined you don't see it advertised um but it's there it's available and it is very much so a middle class program why why do I say that cuz somebody who's wealthy or has the money to pay for it okay so they're able to do that and they don't have to look to another means of funding somebody who is already uh living let's say you know in poverty or how the law defines that and they're below certain limits and levels then um in that situation uh they're already going to qualify or they probably don't own a house or they don't own um a lot of assets they're already on public assistance so by definition they have to be below certain numbers okay so um they don't really need it but as usual it's the middle class that feels the pinch that feels The Squeeze worked hard um 40 50 years saved money uh didn't start sending the kids uh to summer camp uh until the uh uh mid 70s or 1980s and denied you and you saved money and now that money is there and meant to be for the retirement for a nest egg or to pass on to other family members in the future well um in in in that situation when the person uh needs the care to shelter their assets they're looking at total depletion and I have uh clients or I've met with families that come to me because they didn't read an article in the Jewish press or they didn't catch a flyer for an azer uh Elder Care event and they're uninformed and because they're uninformed they're telling me Oh well we just spent Bobby's you know she had about $300,000 um about two three years ago and uh it's all gone now what do we do well that's a little bit of an easier case because unfortunately now they're no more assets to shelter but the idea again is to do more of an advanced plan and less of a reactive plan where we say oh uh this is uh uh the stores on fire what do we do what can we pull out of the fire so let's talk a little bit um about Medicaid as it relates to the community- based Home Care Program and then we're going to talk about nursing home care so as I mentioned anyone who wants to get community- based Home Care Services um and uh we've been getting clients uh uh eight hours a day 6 days a week 12 hours a day 7 days a week in some instances uh and it's based upon a medical assessment um it's uh been 24 hours a day and also just uh so I don't forget I have here today uh my associated attorney Esther levenson SD runs of the law firm's uh Medicaid Department then we work with other vendors here all to make sure that there's a Continuum of Care and that everything is handled um as as best as it can be uh done possibly so that we have the best result and when a person wants to get that Medicaid home care they're not allowed to have Assets in their name above 14,8 $50 now that number is going to change come January 1st maybe the reason I say maybe is because I understand and we got a lot of calls about this that the social security amount will not be raised this year and that happens on occasion and more so in the last several years so it could be that the government isn't going to raise it very much but that is the asset or resource limit person can uh have a house and up to $4,850 and they can qualify for Medicaid home care services um and that's it we'll talk about the house in a little bit but that's the basics to get somebody on community-based home care services yes I thought you talking about the 5year Medicaid look back me five why not that's next so so um let's now talk about the nursing home Medicaid Program so the nursing home Medicaid Program as the name employs is for chronic care it's for longterm care it's not at home it's not in the community it's not at an assisted living facility it's only going to be in a Skilled Nursing Facility or nursing home and in order for a person to qualify for that type of care they also cannot have assets greater than the 14850 threshold but there's a much more uh difficult test that has to be passed and that test is the fiveyear look back period where Medicaid says show us all of your financial uh uh um uh statements going back five years 60 months and what are they looking for they're looking for the money has money been gifted or transferred out of your name and now the government says hey you can't give away money like that 100 Grand and now expect uh uh um the government to pay your bill you get the $100,000 back from your kids hopefully they have it and um you spend down the $100,000 and then apply for Medicaid well that doesn't really need to happen precisely like that but that is the major concern when it comes to doing Medicaid nursing home planning now I don't have anything on here in great detail but we can address the eligibility issues we can address spousal refusal spous refusal mainly is a device a legal device that enables a couple to do uh greater planning than if it's just a single or widowed individual uh that is is looking to do the planning the last item I'm going to touch upon and then we'll turn it over to some Q&A uh and again uh if you have those um index cards or uh if you need a pen you could borrow one uh to write your questions down hopefully it's on uh what we're talking about if it's a specific question then after I'm not running away I'll be here all day you could speak to me you could speak to miss levenson and we'll answer if you have a specific question but if it's a general question okay want to add one thing about the questions if you have a question that you want to ask privately you just want to like leave your contact information just put your contact information on the card with the question or I do not read my question and we'll happily forward it to Mr spern and his office right and no social security numbers please Okay Mother's made name credit card number right forget it you kidding okay pulled income trusts I told you a few moments ago that the resource or asset limit is $4,850 well there's also an income limit and that monthly income limit is $840 but in New York state we're very fortunate and there are some uh vendors here today uh who are uh the um um administrators thank you SD uh of uh a couple of pulled income trusts and a PO income Trust basically says if you have income in excess of $840 then it's going to go into a pooled income trust it's not the irrevocable trust I was talking about it's not a trust for a house it's not a trust for a brokerage account it's a trust for excess monthly income so if a person has $840 a month income and they're only allowed $840 a month income they have an overage of $1,000 thank you that $1,000 under normal or other circumstances would go to Medicaid it would go to the Home Care Agency but with a pooled income trust you're able to take that $1,000 put it into on a monthly basis the pulled income trust and we work with several of the different pooled income trust plan administrators depending upon where you live live and and other circumstances and the money is then directed by the family what to pay if they're living in an apartment you pay rent you're in a co-op you can pay the maintenance you're in a house you can pay the real estate taxes food cable cell phones whatever a cleaning lady anything like that they're not going to really quibble and I asked one of them they said that they will also pay postmortem for a funeral yeah oh hell so that's now what I hope is really a a about 37 minute glimpse into what I do what we do on a daily daily basis and uh help families shelter their assets make sure that they have the right um legal documents and basically uh want to make sure that people are able to do this and forget about it they never have to look at it again okay so let's get some of those cards pass them up you have questions pass them up I handed everybody as they walked in I handed you cards okay if anybody want could you be the monitor please thank you okay okay okay any more so just we get the first round of cards oh right you'll close it out right on the back okay um okay I'm gonna I'm in no particular order as I get them can a family member ladies and gentlemen this may be your question can a family member be in charge of the excess excess monthly income for a pooled trust well I'm not sure precisely what the definition in charge means but certainly will direct and determine what uh bills will be paid so that's as close as he can get to being in charge but you can't have actual um access to the money and you're not paying those bills that's what the pulled income trust does but the family tells the pulled income Trust what we want to spend it on okay who distributes it I didn't understand I don't think the pooled income trust okay and who takes care of that the pooled income trust plan administrator they have an office they have people who do that but for our purposes they will pay the bills with that income overage so there's hardly any loss of monthly income yes okay why create a pooled income trust if you already have an irrevocable trust because an irrevocable trust again is for Real Estate bank accounts brokerage accounts other type of financial assets a pulled income trust is going to only address the exit that we're talking about here a monthly pulled income trust for the excess income it's two separate um entities completely what happens to the money left in the pulled income trust after death whatever is not consumed by the pulled income trust is going to to uh remain with the pulled income trust which by law has to be a a listed charity it has to be a charitable organization so you'll see here today oh lifetime Care Foundation uh kts keep them safe and there may be uh one or two others that uh are here and they can answer your questions about those mechanics okay power of attorney with two people must both and or either make the decision depends how the parent wants to draft it sometimes we do see that the uh kids let's say or the agents are uh attached at the hip and they need to uh uh act uh in concert other times we see oh she lives in Lakewood my son lives uh in flush so we don't want them to have to sign every check together um remember more than the relationship more than anything else the individual who is being named on the power of attorneys trustworthiness is Paramount over all other considerations okay is social security income over $800 part of the in payment that should go into the pooled income trust yes $840 everything above it Social Security pensions IRA distributions annuity payments sometimes long-term care insurance payments people end up with a policy from 13 years ago that's covering 150 a day not enough now that's constituted as income so okay along with the eight I think we're all going to remember these numbers $840 liit limit is for home health care only or nursing care also home health care only nursing home care $50 that's that's how much they let the uh nursing home the person on Medicaid keep a month the thinking being you got all your food electric everything is laundry you don't have you have no no costs okay Snicker boss exactly I'm trying I'm trying to organize it somewhat okay on the community based care for Medicaid do they also look back 5 years no on the community based Medicaid they look back one month in New York City and three months in nasson okay is there Jersey that's a different conference I don't know it's different it's different Westchester do you know don't know Westchester is there a back on home based Health on homebased care 30 days in New York City 90 days naso suffa County okay the these were some questions about um about the trust if you put your assets or money into an irrevocable trust now is there also a five-year look back absolutely once a person transfers assets out of their name whether it's to kids or to a trust there's a 60-month 5year look back period so would it I'm going to ask a question just following up let's say today or five 5 years ago 4 years and 11 months ago today I created an irrevocable trust right and today I have to go into the nursing I have to go apply for Medicaid it pays for me to pay privately for this one month so that I don't have to do the look back absolutely I mean in that type of an example that's easy but some people come to us a year into it much more challenging okay but okay um if the parents agree and transfer their funds to a Child is This legal in quotes for the 5year look back meaning 5 years later it's legal to do whatever one wants with their money there's nobody looking over anyone's shoulder you could do whatever you want with your money is it legal for Medicaid I think what you're asking is is that going to uh cause any type of penalty period and the answer is yes 5 years child or not if the child is disabled if uh the child lives in the same house as the parent there are exceptions about that house again we have to sit down and explore and examine the details the protim the individual circumstances to come up with the best results okay I'm going to leave this for the last because I think it's a good ending okay if you divorce what happens what's the responsibilities that's a loaded question in terms of what you have a lovely wife okay yeah right um when a couple divorces like all other uh legal issues there no longer legally responsible relatives to one another there's no more in sickness and in health or richer or poor so they're completely now unless somebody's saying no we really love each other but we're getting divorced wink wink nod nod in order to qualify so um it's a problem because when people divorce what happens you have to divide the assets so it's not really helping out but again that's a very very can a trust be divided at divorce no no no on wills and trusts in a in the context of a divorced couple a dissolved uh uh marriage are are nullified okay it has to be revocable trust is nullified like that as it relates to a a spouse at the time it has to be redone and that's why it's never a good idea to put assets directly into a child's name because a trust doesn't die or get divorced or get into a car accident but kids unfortunately like all other people could be in a car wreck declare bankruptcy so if a parent gives their assets money uh 50 Grand or 500,000 to a child or children that's ill advised we don't do that one final question and I just want to tell you that Mr spurn will be repeating the session not the next session but the session after this he's also available throughout the day for personal questions it was somebody who handed one to me on a card I'll give it to you um the final question what documents do you need when you come to visit the Elder Care attorney um I tell uh families whatever you have available meaning if you've already done Powers of Attorney and me medical proxies your last wills and testament if you have a copy of the deed to your residence a working knowledge of your assets or your parents' assets we don't need statements on day one we just need a rough idea are we talking about people who are very modest people who have some more means so we know again how to properly tailor and craft a plan for that family okay I want to thank Mr SP you really a great friend of a from the very beginning okay okay and if you have any garbage with an exra this is an extra sheet yes okay