Author: John B. LaRue

To start with we need to define or describe both a Last Will & Testament and a Trust and what they do. 

A Last Will & Testament (LWT) is normally prepared on behalf of a client to ensure that their assets are distributed to the beneficiaries of their choosing. Simply stated it is a document that gives instructions on what is to be done with the persons property when they die. The LWT does not take effect until the person dies. In most instances the LWT must be “probated” which is the name of the legal processing of the LWT. In probate the deceased’s assets are gathered and inventoried, their debts are determined and paid and finally, once the time has expired for the filing of claims by the decedent’s creditors (3 months in Indiana), the estate can be distributed. The Personal Representative (a/k/a Testator or Testatrix) will be charged with performing these duties during probate. 

The probate process in Indiana is expected to be completed within one year however it can take longer if there is a delay in liquidating assets or there is a contest of the will by a disgruntled person. If a will contest arises the court will interpret the LWT and direct final distribution of the estate. Because the probate process is in fact a court proceeding the filed documents (including the LWT) will be available for public viewing. 

A trust is simply a contract between the Grantor (the person who establishes the trust) and the Trustee (the person in charge of carrying out the terms of the trust). Trusts can be created for varied reasons including tax savings, protection of assets for minor or incapacitated persons, or even to preserve assets so they will not be expended for nursing home care (Medicaid Planning). An inter vivos trust is usually funded and becomes effective during the Grantor’s lifetime. Depending upon the objectives of the trust it may be formulated to pay income or even principle to the Grantor during their lifetime. The Grantor will also determine what will happen to the trust property and income at their death. A Special needs Trust can be prepared for persons who are trying to protect assets while at the same time qualifying for public benefits such as Medicaid. A Third-Party Special Needs Trust can be used when someone other than the person receiving public benefits wants to set aside assets for the recipient’s care. 

Trusts are favored by those families who prefer to remain discreet and keep their financial information out of the public domain. They also will often allow the family to avoid probate thus speeding up the distribution of the assets to the beneficiaries. 

If you would like to further discuss planning with either a Last Will & Testament or a Trust do not hesitate to contact our office to set up an in-person or Zoom meeting. 

A potential trap for the unwary attorney-in-fact. For those who have utilized a “power of attorney” in their estate planning without specific instructions concerning payment of nursing home expenses, this recent article is worthy of your time.

Chances are, you’ve gotten a scammer call or two….or even many more. The Internal Revenue Service (IRS) releases their “Dirty Dozen” list of scams. Check out the list in the article attached and share with your loved ones, as well!

Medicare and Medicaid are two different government programs for healthcare. It is important to understand the difference between them. Here, we will discuss how the program benefits differ, how eligibility for each program is established, and discuss some recent news pertaining to each program.

Medicare vs. Medicaid – What are the program benefits?

Medicare is a program administered by the federal government to provide healthcare to certain populations. Original Medicare is divided into Parts A and B.

Medicare Part A covers hospital care and a limited period of nursing home care, home health services, and hospice care. Medicare Part A will only cover nursing home care if –

1. There was first a qualifying hospital stay of 3 days of inpatient care; and
2. Nursing home care was needed relating to the hospital stay; and
3. The patient entered the nursing home within a short time of the hospital stay (usually within 30 days).

Thereafter, only the first 20 days of nursing home care are paid for by Medicare Part A. Days 21 through 100 of care require a partial payment by the patient (This co-pay may be covered if you have a Medicre Supplement Policy). Any care after 100 days is not paid at all by Medicare Part A.

Medicare Part B covers traditional healthcare expenses, such as visits to a doctor, blood tests, and X-rays. In most cases, a referral is not needed to see a specialist. Original Medicare does not cover prescription drug coverage; however, you can enroll in Medicare Part D through a private insurance company with paid premiums.

Medicaid is also a program intended to provide medical benefits to certain populations. It is a joint federal-state program. While states receive federal funding and must follow specific federal rules, each state administers its own Medicaid program. Medicaid covers all types of medical care, including long-term care, such as a nursing home. However, eligibility criteria are more stringent when trying to qualify for long-term care.

Medicare vs. Medicaid– How is eligibility established?

Eligibility for Medicare is simple – if you are over age 65 and have paid Medicare tax through your employment for at least ten years, you qualify. You can get Medicare Part A at age 65 without paying any premiums if:

• You receive Railroad Retirement Board benefits; or
• You are eligible to receive Railroad Retirement Board benefits or Social Security benefits but have not yet filed for them; or
• You or your spouse had Medicare-covered government employment.

If you or your spouse don’t qualify for Medicare Part A because neither of you paid Medicare tax through your employment, you may still be able to obtain Medicare Part A via paid premiums. Eligibility for Medicare Part B is the same as for Part A but requires a paid premium. Some folks qualify for Medicare benefits even though they are under age 65, including younger people with disabilities and those with End-Stage Renal Disease.

Eligibility for Medicaid is needs-based. Meaning, income restrictions for programs which cover pregnant women, children, the disabled, and the elderly. If your income is under the amount specified for your state, then you likely qualify if you are in one of those groups.

If long-term care is needed, however, there are also asset restrictions. If an applicant’s assets exceed pre-determined limits they will not qualify for nursing home care benefits. Nursing homes will likely instruct the applicant and his/her spouse to “spend down” their assets to qualify for Medicaid. Applicants can instead retain an elder law attorney to do legal planning to protect their assets while still getting qualified for benefits. This way, money and property are preserved for their family and won’t have to be spent on nursing home care.

In addition to income and asset rules regarding nursing home Medicaid benefits eligibility, there is a look-back period. Suppose you had transferred assets during a specific time period before the Medicaid application was submitted. In that case, you will likely receive a penalty where you are not eligible for benefits for a period of time. Again, an experienced elder law attorney can best help you navigate the application process to best manage any prior transfers for your benefit.

Medicare and Medicaid– What are some recent developments?

A few months ago, the Beneficiary Enrollment Notification and Eligibility Simplification (BENES) Act was signed into law. It eliminates the long waiting period, sometimes up to 7 months, for coverage for certain enrollees. Beginning in 2023, coverage for Medicare will being in the month after the participant enrolls.

A few weeks ago, a group of Democrats reintroduced legislation in the Senate to lower the age from 65 to 50 in order to qualify for Medicare benefits. If passed, this would mean millions more Americans would become eligible for Medicare. Proponents of the legislation contend that getting folks on Medicare could save lives and provide much-needed care. They point to the fact that many people don’t have access to private insurance, and so care is delayed. That becomes both financially and physically costly down the road. Opponents, of course, point out the financial strain it would cause on the federal budget. Some also claim that this expanded healthcare might allow more folks to retire at a younger age, putting a strain on the workforce. Hospitals oppose the legislation, as Medicare reimbursement rates are much lower than what the hospital would receive from private insurance plans.

Recent news in the Medicaid world is that work requirements have become all but extinct. Former President Trump made it clear under his presidency that he supported Medicaid work requirements. Meaning, Medicaid recipients would be required to work, look for work, or participate in volunteer work each month. If the requirement wasn’t met, Medicaid coverage would be lost. There were several exceptions to the rule, such as for pregnant women, full-time students, primary caregivers to dependents, the elderly, and the disabled.

Several states submitted Medicaid waivers to implement Medicaid work requirements, and some were approved. Arkansas was the first state to implement such a work requirement policy. They had their program in place for about a year before a federal judge halted it. While litigation was pending, President Biden was elected. He has made it clear that his administration does not support Medicaid work requirements, and so those will not be implemented by states going forward.

Conclusion

Medicare and Medicaid are two very different programs; each provides certain benefits and has certain criteria for enrollment. Between the two, however, only Medicaid will cover long-term care expenses for more than 100 days. Getting long-term care Medicaid can be a tedious process, and legal strategies can be employed that will help you protect assets while getting needed care. If you or someone in your care needs long-term care soon, or you would like to be proactive and protect assets in advance for more asset protection, then an elder law attorney can be in your corner and help you navigate the legal strategies available to you.

Yes, we are in difficult times. I have had many clients reach out with various concerns about estate planning; something that most of us don’t’ like to think or talk about, let alone do anything about. Yet with the loss of literally hundreds of thousands of our fellow citizens since Covid 19 hit the US the mortality issue is one that we all have come face to face with and, like it or not, a little more comfortable talking about. I found the following Kiplinger article to be very enlightening and suggest it to you for a quick read.

If you have any questions, or wish to discuss estate planning matters ranging from a simple will, to the more complex Medicaid Asset Planning Trusts that we draft to protect your family and assets and from depletion by spiraling long term nursing care costs do not hesitate to call.

Researchers recently stated that as many as 313,000 Indiana households are now in danger of eviction; yet another devastating side effect of the COVID-19 pandemic.

The Indiana Supreme Court has launched a FREE program to assist Hoosiers that are concerned about eviction and struggling to pay rent, as well as to assist Hoosier landlords. The Landlord and Tenant Settlement Conference Program uses a neutral person to help. Please click on the links below for more information.

Are you experiencing financial difficulties? Too much debt? Facing foreclosure? The team at John B. LaRue is experienced and passionate about explaining your options and finding a solution.