Elder law attorneys provide legal services for seniors. Discover the specific services you can get from a qualified elder law attorney.
Managing the care needs of an aging parent can be a daunting task. When it becomes clear that an older adult can no longer care for themselves safely in their home, there are many options to consider such as the quality of their care, their safety, and the cost (including when and how Medicaid and/or Veterans benefits might become available). These considerations become confusing when faced with last minute decision making, marketing campaigns and promises of salespeople who are under pressure to fill rooms. Most people are even confused by the different options available and sometimes the wrong placement decision for a loved one can be disastrous.
On December 7, 2016, the U.S. Senate passed the Special Needs Trust Fairness Act. This Act makes it possible for a disabled adult who is mentally competent to establish his or her own special needs trust if they acquire assets that will put them over the asset limit for programs such as Medicaid or SSI. It corrects the false presumption in prior law that all disabled persons lack the mental capacity to handle their own legal and financial affairs.
Under prior law, only a parent, grandparent, court appointed guardian or a court itself could establish the type of special needs trust that allows a disabled individual to benefit from their assets for their supplemental needs while maintaining eligibility for Medicaid and SSI (also known as a (d)(4)(A) trust, after the enabling legislation). The Social Security Administration would sometimes even deny trusts established by a court if the disabled individual was the one who petitioned the court for an order to establish with the trust, with the outrageous position that the court was acting as the mere agent for the disabled individual. The new legislation will halt that practice.
Not all caseworkers with the Social Security Administration are aware of the new legislation and a problem we have seen is caseworkers issuing eligibility denials after evaluating trusts drawn up under the new law under the standards of prior law. This problem can be reversed by an appeal.
An individual who is not mentally competent will still need a court or other authorized party to establish a trust for them. However, by doing away with the need for a court order for competent adults, the new legislation may save a competent adult disabled beneficiary thousands of dollars in legal fees and lost benefits, as well as the time and indignity of having to involve the court in his or her financial affairs. If you would like further information on special needs trusts and how to establish them, please contact us at (231) 773-1169
The IRS, State of Michigan and Veterans Administration have completed their annual adjustments to important thresholds in the estate planning and elder law world. Here is a quick reference guide to the current numbers.
Estate and Gift Tax
Estate, Gift and GST Tax Exemption Equivalent: $5,490,000
Gift Tax Annual Exclusion: $14,000
Annual Exclusion for Non citizen Spouse: $149,000
Maximum Estate and Gift Tax Rate 40%
Estates and Trusts Code
Intestate Share of Surviving Spouse with Children with Decedent: $224,000
Intestate Share of Surviving Spouse with no Children with Decedent: $150,000
Homestead Allowance (spouse/minor’s shelter during estate administration): $22,000
Exempt Property (spouse/children’s right to household and personal property): $15,000
Family Allowance (to support spouse/minors during estate administration): $27,000
Small Estates (qualifies for summary procedure): $22,000
Small Trusts (May be terminated as too small to justify administration expenses): $75,000
Medicaid Asset and Income Thresholds
Maximum Community Spouse Asset Allowance: $120,900
Minimum Community Spouse Asset Allowance: $24,180
Maximum Community Spouse Income Allowance (monthly): $3,023
Monthly Income Cap for Home and Community Based Waiver: $2,205
Average Monthly Cost of Nursing Home Care (Divestment Penalty Divisor): $8,018
Maximum Home Equity Value $560,000
Veterans Aid & Attendance Benefits (Maximum Monthly Benefit)
Single Veteran $1,794.25
Married Veteran $2,127.08
Surviving Spouse of Veteran $1,153.00
Veteran Married to Veteran $2,846.08
If you would like further information on estate planning orelder law topics, please contact David E. Waterstradt, JD, CELA, at231/773-1169 or by email at david@davidwaterstradt.com. David is a Certified Elder Law Attorney bythe National Elder Law Foundation, the only elder law certification programaccredited by the American Bar Association.
Estate and Gift Tax
Estate, Gift and GST Tax Exemption Equivalent: $5,490,000
Gift Tax Annual Exclusion: $14,000
Annual Exclusion for Non citizen Spouse: $149,000
Maximum Estate and Gift Tax Rate 40%
Estates and Trusts Code
Intestate Share of Surviving Spouse with Children with Decedent: $224,000
Intestate Share of Surviving Spouse with no Children with Decedent: $150,000
Homestead Allowance (spouse/minor’s shelter during estate administration): $22,000
Exempt Property (spouse/children’s right to household and personal property): $15,000
Family Allowance (to support spouse/minors during estate administration): $27,000
Small Estates (qualifies for summary procedure): $22,000
Small Trusts (May be terminated as too small to justify administration expenses): $75,000
Medicaid Asset and Income Thresholds
Maximum Community Spouse Asset Allowance: $120,900
Minimum Community Spouse Asset Allowance: $24,180
Maximum Community Spouse Income Allowance (monthly): $3,023
Monthly Income Cap for Home and Community Based Waiver: $2,205
Average Monthly Cost of Nursing Home Care (Divestment Penalty Divisor): $8,018
Maximum Home Equity Value $560,000
Veterans Aid & Attendance Benefits (Maximum Monthly Benefit)
Single Veteran $1,794.25
Married Veteran $2,127.08
Surviving Spouse of Veteran $1,153.00
Veteran Married to Veteran $2,846.08
If you would like further information on estate planning orelder law topics, please contact David E. Waterstradt, JD, CELA, at231/773-1169 or by email at david@davidwaterstradt.com. David is a Certified Elder Law Attorney bythe National Elder Law Foundation, the only elder law certification programaccredited by the American Bar Association.
On December 7, 2016, the U.S. Senate passed the Special Needs Trust Fairness Act. President Obama reportedly intends to sign it. This Act makes it possible for a disabled adult who is mentally competent to establish his or her own special needs trust if they acquire assets that will put them over the asset limit for programs such as Medicaid or SSI. It corrects the false presumption in prior law that all disabled persons lack the mental capacity to handle their own legal and financial affairs.
Under prior law, only a parent, grandparent, court appointed guardian or a court itself could establish the type of special needs trust that allows a disabled individual to benefit from their assets for their supplemental needs while maintaining eligibility for Medicaid and SSI (also known as a (d)(4)(A) trust, after the enabling legislation). The Social Security Administration would sometimes even deny trusts established by a court if the disabled individual was the one who petitioned the court for an order to establish with the trust, with the outrageous position that the court was acting as the mere agent for the disabled individual. The new legislation will halt that practice.
By doing away with the need for a court order, the new legislation will can save a competent adult disabled beneficiary thousands of dollar sin legal fees and lost benefits, as well as the time and indignity of having to involve the court in his or her financial affairs. If you would like further information on special needs trusts and how to establish them, please contact us.
Under prior law, only a parent, grandparent, court appointed guardian or a court itself could establish the type of special needs trust that allows a disabled individual to benefit from their assets for their supplemental needs while maintaining eligibility for Medicaid and SSI (also known as a (d)(4)(A) trust, after the enabling legislation). The Social Security Administration would sometimes even deny trusts established by a court if the disabled individual was the one who petitioned the court for an order to establish with the trust, with the outrageous position that the court was acting as the mere agent for the disabled individual. The new legislation will halt that practice.
By doing away with the need for a court order, the new legislation will can save a competent adult disabled beneficiary thousands of dollar sin legal fees and lost benefits, as well as the time and indignity of having to involve the court in his or her financial affairs. If you would like further information on special needs trusts and how to establish them, please contact us.
Did you know it’s not necessary to spend down assets on unnecessary items when trying to qualify a loved one for Medicaid for nursing home related expenses? Medicaid’s asset limit is $2,000 for an individual. Many people will go on a spending spree and purchase unnecessary items to use up assets above the $2,000 limit in an attempt to qualify for Medicaid. However, rather than spending money unnecessarily, it is possible to set aside half or more of a loved one’s assets over $2,000 for future needs if this is done within Medicaid’s gifting rules. Medicaid will impose a disqualification period if assets are transferred. Nonetheless, assets can still be transferred if sufficient assets are converted to income to make sure the nursing home gets paid during the disqualification period. A skilled elder law attorney can guide you through these rules.
With respect to married couples, the asset limit is higher than $2,000. How much higher depends on how much the couple owned at the time a spouse entered the hospital or nursing home. Essentially, the limit is one-half of the couple's assets up to a maximum of $119,220. A skilled elder law attorney can help a married couple keep all assets in excess of this amount with no spend down required. Essentially, the plan involves converting the excess assets to income with a promissory note or annuity. That income all comeback to the spouse who remains living at home over time.
If you have a loved one who needs to become Medicaid eligible, it is important that you consult with us as soon as possible because timing is everything. We are here to help you with every aspect of the Medicaid process, including developing a custom plan to help you maximize the assets you can keep,assisting you with any spend down desired or required, compiling the information necessary for the Medicaid application, completing and submitting the Medicaid application, and aiding you with annual follow-up to retain Medicaid eligibility. We look forward to helping you and your family through this complicated and difficult process.
With respect to married couples, the asset limit is higher than $2,000. How much higher depends on how much the couple owned at the time a spouse entered the hospital or nursing home. Essentially, the limit is one-half of the couple's assets up to a maximum of $119,220. A skilled elder law attorney can help a married couple keep all assets in excess of this amount with no spend down required. Essentially, the plan involves converting the excess assets to income with a promissory note or annuity. That income all comeback to the spouse who remains living at home over time.
If you have a loved one who needs to become Medicaid eligible, it is important that you consult with us as soon as possible because timing is everything. We are here to help you with every aspect of the Medicaid process, including developing a custom plan to help you maximize the assets you can keep,assisting you with any spend down desired or required, compiling the information necessary for the Medicaid application, completing and submitting the Medicaid application, and aiding you with annual follow-up to retain Medicaid eligibility. We look forward to helping you and your family through this complicated and difficult process.
The Michigan Supreme Court recently declined to review the decision of the Michigan Court of Appeals in Estate of Margaret Marie Roush v.Laurel’s of Carson City
. Ms. Roush was a patient at the Laurel’s of Carson City, a skilled nursing facility. Ms. Roush had nominated a patient advocate, and on October 24, 2012, that nominated patient advocate agreed that Ms. Roush should remain in the facility’s care. However, a dispute arose as to whether two doctors had certified that Ms. Roush was unable to make her own decisions,a condition necessary for the patient advocate to have any decision making authority. Ms. Roush was retained at the facility until November 21, 2012. In the intervening period, two doctors did in fact find Ms. Roush unable to participate in her decision making, but additional medical evidence was also produced to support the proposition that Ms. Roush was capable of making her own decisions. Most importantly, on November 12, Ms. Roush formally revoked the existing patient advocate designation.
Ms. Roush was ultimately allowed to leave the facility, and died a short time later in her home. However, the facility was sued, among other things, for false imprisonment and intentional infliction of emotional distress during the period Ms. Roush was forced to remain in the facility after the dispute arose, and after she revoked the patient advocate designation.
This case raises a critical issue in the law governing patient advocate designations: When a person who has previously created a patient advocate designation is deemed unable to make their own medical decisions by two doctors, but then revokes that patient advocate designation, are that person’s rights to make their own medical care decisions (a) immediately restored or (b) suspended until a court decides whether they can make their own decisions or whether a guardian needs to be appointed to make those decision for them?
Michigan’s patient advocate law provides that:
… even if the patient is unable to participate in medical treatment decisions, a patient may revoke a patient advocate designation at any time and in any manner by which he or she is able to communicate an intent to revoke the patient advocate designation. If there is a dispute as to the intent of the patient to revoke the patient advocate designation, the court may make a determination on the patient’s intent to revoke the patient advocate designation. If the revocation is not in writing, an individual who witnesses a revocation of a patient advocate designation shall describe in writing the circumstances of there vocation, must sign the writing, and shall notify, if possible, the patient advocate of the revocation. If the patient’s physician, mental health professional, or health facility has notice of the patient’s revocation of a patient advocate designation, the physician, mental health professional, or health facility shall note the revocation in the patient’s records and bedside chart and shall notify the patient advocate. MCL 700.5510(d)
The Court of Appeals decision is on the side of the proposition that the patient advocate’s authority is “immediately revoked.” While this is an unpublished decision and not necessarily binding on other courts in Michigan, it will stand as persuasive authority and represents a missed opportunity by the Supreme Court to clarify the law. There will likely be unintended consequences to Supreme Court’s decision. For example, what does a nursing home do when one of its residents has been deemed unable to make their own medical treatment decisions, and admitted to the facility by their patient advocate, and then states his desire to go home. Is that expression alone a revocation of the patient advocate designation triggering the patient’s right to leave? Or does the person have to actually say the magic words “I revoke my patient advocate designation?” Is “I want togo home” enough to trigger the obligation of the staff person to report the incident as contemplated by statute? Enough to require a hearing so that a“court may make a determination on the patient’s intent to revoke the patient advocate designation.”
Nursing homes are likely to act out of an abundance of caution and begin demanding guardianship's be obtained in such situations. This is likely to increase the number of guardianship's instituted in Michigan, with the attendant increase in legal costs, delays in decision making and potential loss of rights by wards. Of course, this decision does not change the fact that it is still prudent for most persons to execute a patient advocate designation to make medical decisions so that you can name the person or persons of your choice to make medical decisions for you when you are no longer able to make them for yourself, and (hopefully) avoid the costs of a guardianship.
If you would like further information on patient advocate designations, guardianship's or other elder law or estate planning topics, please contact David E. Waterstradt, JD, CELA at 231.773.1169 or by email at david@davidwaterstradt.com. David is a Certified Elder Law Attorney by the National Elder Law Foundation, the only elder law certification program accredited by the American Bar Association.
Ms. Roush was ultimately allowed to leave the facility, and died a short time later in her home. However, the facility was sued, among other things, for false imprisonment and intentional infliction of emotional distress during the period Ms. Roush was forced to remain in the facility after the dispute arose, and after she revoked the patient advocate designation.
This case raises a critical issue in the law governing patient advocate designations: When a person who has previously created a patient advocate designation is deemed unable to make their own medical decisions by two doctors, but then revokes that patient advocate designation, are that person’s rights to make their own medical care decisions (a) immediately restored or (b) suspended until a court decides whether they can make their own decisions or whether a guardian needs to be appointed to make those decision for them?
Michigan’s patient advocate law provides that:
… even if the patient is unable to participate in medical treatment decisions, a patient may revoke a patient advocate designation at any time and in any manner by which he or she is able to communicate an intent to revoke the patient advocate designation. If there is a dispute as to the intent of the patient to revoke the patient advocate designation, the court may make a determination on the patient’s intent to revoke the patient advocate designation. If the revocation is not in writing, an individual who witnesses a revocation of a patient advocate designation shall describe in writing the circumstances of there vocation, must sign the writing, and shall notify, if possible, the patient advocate of the revocation. If the patient’s physician, mental health professional, or health facility has notice of the patient’s revocation of a patient advocate designation, the physician, mental health professional, or health facility shall note the revocation in the patient’s records and bedside chart and shall notify the patient advocate. MCL 700.5510(d)
The Court of Appeals decision is on the side of the proposition that the patient advocate’s authority is “immediately revoked.” While this is an unpublished decision and not necessarily binding on other courts in Michigan, it will stand as persuasive authority and represents a missed opportunity by the Supreme Court to clarify the law. There will likely be unintended consequences to Supreme Court’s decision. For example, what does a nursing home do when one of its residents has been deemed unable to make their own medical treatment decisions, and admitted to the facility by their patient advocate, and then states his desire to go home. Is that expression alone a revocation of the patient advocate designation triggering the patient’s right to leave? Or does the person have to actually say the magic words “I revoke my patient advocate designation?” Is “I want togo home” enough to trigger the obligation of the staff person to report the incident as contemplated by statute? Enough to require a hearing so that a“court may make a determination on the patient’s intent to revoke the patient advocate designation.”
Nursing homes are likely to act out of an abundance of caution and begin demanding guardianship's be obtained in such situations. This is likely to increase the number of guardianship's instituted in Michigan, with the attendant increase in legal costs, delays in decision making and potential loss of rights by wards. Of course, this decision does not change the fact that it is still prudent for most persons to execute a patient advocate designation to make medical decisions so that you can name the person or persons of your choice to make medical decisions for you when you are no longer able to make them for yourself, and (hopefully) avoid the costs of a guardianship.
If you would like further information on patient advocate designations, guardianship's or other elder law or estate planning topics, please contact David E. Waterstradt, JD, CELA at 231.773.1169 or by email at david@davidwaterstradt.com. David is a Certified Elder Law Attorney by the National Elder Law Foundation, the only elder law certification program accredited by the American Bar Association.
Who has the right to make decisions about your funeral under Michigan law? Surprisingly, it is not yourself. You can pre-plan your funeral, but the persons who have authority to make your funeral arrangements have no legal obligation to follow your plan. Michigan law currently defines the person with the right to make funeral decisions as your “next of kin.” This means your surviving spouse, or if you have no surviving spouse, the individual or individuals 18 years or older “related to the decedent in the closest degree of consanguinity.” This usually means your children or grandchildren. For people who have no descendants, it usually mean siblings, or even nieces and nephews. The problem with this law is that it is not very flexible and does not allow for tailoring to individual circumstances. It sometimes puts an estranged or distant relatives in charge of funeral arrangements. Think of an elderly single man who has been estranged from his only child for many years due to disputes they had earlier in life. That same estranged child will be in charge of the elderly man’s funeral arrangements. How likely is it that the estranged child will follow his father’swishes? Or, if there are several children but they disagree on how to handle funeral arrangements, who makes the final decision? Under current law they all have equal priority and would have to go to court to resolve any disputes.
Thankfully, on March 29, 2016, Michigan law was changed. Now it will be possible for each individual to designate a “funeral representative” who has legal authority to make your funeral arrangements. To be legal and binding, your designation has to be in writing and witnessed by two persons. If your funeral representative fails to exercise their powers within 48 hours of receiving notice of death,the persons who would have had priority under prior law may act
Your funeral representative can be almost any person you want, even someone who is not a relative. The only restrictions are that your funeral representative cannot be an owner or employee of a funeral home, health care facility, cemetery or crematory,unless such a person is your spouse or relative. You can revoke or amend your funeral representative designation at any time.
Apparently there is some dispute whether a designated funeral representative will have a legal obligation to carry out your funeral wishes. The Michigan Funeral Director’s Association has stated that it does not believe this duty exists under the new law. However, a funeral representative is defined as a “fiduciary” under the new law. A fiduciary has the responsibility to act in the best interests of the person who appointed him. Therefore, there is arguably a legal duty to follow the decedent’s wishes. In any case, the new law is certainly an improvement. By allowing you to designate the person of your choice, you should have much more certainty that your wishes will be followed. As always, open communication with the person or persons you wish to designate as your fiduciaries (including funeral representative, patient advocate, agent under durable power of attorney,trustee and/or personal representative) will help ensure that your carefully laid plans are carried out.
If you would like further information on Designated Funeral Representatives or other elder law or estate planning topics, please contact David E. Waterstradt, JD, CELA at 231.773.1169 or by email at david@davidwaterstradt.com. David is a Certified Elder Law Attorney by the National Elder Law Foundation, the only elder law certification program accredited by the American Bar Association.
Thankfully, on March 29, 2016, Michigan law was changed. Now it will be possible for each individual to designate a “funeral representative” who has legal authority to make your funeral arrangements. To be legal and binding, your designation has to be in writing and witnessed by two persons. If your funeral representative fails to exercise their powers within 48 hours of receiving notice of death,the persons who would have had priority under prior law may act
Your funeral representative can be almost any person you want, even someone who is not a relative. The only restrictions are that your funeral representative cannot be an owner or employee of a funeral home, health care facility, cemetery or crematory,unless such a person is your spouse or relative. You can revoke or amend your funeral representative designation at any time.
Apparently there is some dispute whether a designated funeral representative will have a legal obligation to carry out your funeral wishes. The Michigan Funeral Director’s Association has stated that it does not believe this duty exists under the new law. However, a funeral representative is defined as a “fiduciary” under the new law. A fiduciary has the responsibility to act in the best interests of the person who appointed him. Therefore, there is arguably a legal duty to follow the decedent’s wishes. In any case, the new law is certainly an improvement. By allowing you to designate the person of your choice, you should have much more certainty that your wishes will be followed. As always, open communication with the person or persons you wish to designate as your fiduciaries (including funeral representative, patient advocate, agent under durable power of attorney,trustee and/or personal representative) will help ensure that your carefully laid plans are carried out.
If you would like further information on Designated Funeral Representatives or other elder law or estate planning topics, please contact David E. Waterstradt, JD, CELA at 231.773.1169 or by email at david@davidwaterstradt.com. David is a Certified Elder Law Attorney by the National Elder Law Foundation, the only elder law certification program accredited by the American Bar Association.
Are you or your elderly  thinking of making year-end cash gifts? When elderly people make large cash gifts, there are a few rules they should keep in mind. Many people are aware that the gift tax rules allow gifts of a certain size to be made each year without gift tax reporting. That amount is […]