Year: 2013

Understanding the Differences between Medi-Cal and Medicare with a San Jose Elder Law Attorney

Medi-Cal and Medicare consist of very different components and are designed for different purposes. Being eligible for one program does not automatically make you eligible for the other. You must meet separate eligibility requirements for each program. However, if you qualify for both, Medi-Cal will pay for most Medicare part A and B premiums, deductibles and co-payments.

Medicare is an insurance program. Medicare was designed to assist with the high medical costs of older citizens who face financial difficulties given their reduced earning power. It serves people primarily over the age of 65, whatever their income, as well as younger people with disabilities. However, eligibility for Medicare is not tied into individual need. It is an entitlement program. You or your spouse are entitled to Medicare because you paid for it through payroll taxes. Medical bills are paid by trust funds that those covered have paid into. Patients pay part of costs through deductibles for hospital and additional costs. Sometimes, small monthly premiums are required for non-hospital coverage. Medicare is a federally run program.

Medi-Cal is an assistance program run by the state of California for low-income, financially troubled people. This is often referred to as a patient pay responsibility. Medicaid is a federal program administered through the states, and the rules vary from state to state. In California, the Medicaid program is called Medi-Cal. It’s set up by the government and administered by each state. Medical bills are paid by federal, state, and local tax funds. Patients usually pay no part of costs for medical expenses, although, sometimes a co-payment is required. The program varies from state to state. In California it is known as Medi-Cal. There are multiple programs within Medi-Cal, such as Supplementary Security Income (SSI), Aged and Disabled Federal Poverty Level (A&D FPL), Medi-Cal with a Share of Cost (SOC) and California Working Disabled (CWD).

There are many types of documents needed to validate income, assets and expenses. Understanding the eligibility requirements, benefit packages and application process is imperative to choosing the plan that will best suit you and your family.

Jim Ward is an experienced Elder Law Attorney who can help guide you through the process. Give Jim a call to today for a free consultation, 1-800-JIM-WARD.

Benefits of Setting Up a Trust with a San Jose Elder Law Attorney

While trust funds, or trusts, may seem the domain of millionaires, it is beneficial for people at all economic levels to create a trust.  If you plan to leave money to your minor children a trust has to be an integral part of the estate plan. By having a trust in place, money and assets are set aside and available to your children upon reaching a pre-determined age.  Having a trust, managed by a trustee, allows for management of your money, property and assets, and makes sure that they’re distributed after your death — according to your wishes. This will save your family money, time and paperwork.

Benefits of setting up trusts include avoiding taxes, avoiding probate, protecting your estate (as well as the estate of beneficiary or beneficiaries), providing funds for educational purposes, and benefits for charities and institutions.

Trusts are flexible, varied and complex. Each type has advantages and disadvantages depending on your wishes for the future. What kind of trust will work for you? A credit-shelter trust? A generation-skipping trust? A qualified personal residence trust? A irrevocable life insurance trust? A qualified terminable interest property trust?

Before you set up a trust, it is imperative to thoroughly discuss the specifications of the considered trust with your estate-planning attorney.

When it comes to having others use your assets to care for you when you are unable to make decisions, or when it comes to taking care of the ones you love, creating a trust is of utmost importance in meeting your various estate planning goals. .

As an experienced attorney in estate planning, allow Jim Ward to assist you in determining which trusts are right for you and your family. Call us today for a free assessment, 1-800-JIM-WARD.

San Jose Elder Law – The Appropriate Use of Magic Words

When many of us were children and wanted something, a parent or other adult often asked, “What’s the magic word?” That was usually the cue that we were supposed to say, “Please.” Well, in our everyday world, we’re still confronted with particular words and the grouping of particular words. Attorneys prepare legal documents every day that have their own “magic words” to get things done properly. In estate planning, these words may not be read and interpreted for years to come, and then people realize too late that it should have been written differently.

While you’re alive and well, documents can be changed. If you’re incapacitated or deceased, other people have to go by the words in your estate planning documents.

I review a lot of documents for people, and I often find that the documents are not clear, or they do not express what the client wanted, or they place the agent or trustee in a very difficult position where the person can’t really do what is needed to act properly. Sometimes the wording can create an unnecessary burden on the surviving spouse after the first spouse passes away.

When a couple prepares a trust to distribute their assets, they do their best to look into the future and think about how they want their property distributed after they both die. Frequently, however, there isn’t a lot of thought given to how the property will be handled after the death of just one spouse. Estate planners have had several ways of addressing this issue over the years, and it frequently came down to an attempt to reduce or avoid any estate tax. ­— But over the last several years, we’ve had numerous tax law changes that affected the estate tax.

The situation that estate planners often find now is that clients who had their estate plan prepared several years ago are sitting with a valid plan that is not the appropriate plan for the tax laws that are in effect today. What’s the result? The plan may severely limit what the surviving spouse can do, and in many cases this wasn’t what was intended. Can it be changed? Yes, as long as both spouses are still mentally competent and they take action.

If you have a trust, take it out and read it carefully to see what it says. If you aren’t comfortable with your own ability to understand the trust, take it to an estate planning attorney to have them look it over and tell you how the assets will be distributed. What is the intent? Are the assets joint assets from a lifetime of hard work? Were the assets inherited by just one spouse? Is this a second marriage? Do either of you have children from a prior marriage? Has your planner bypassed the difficult conversations that need to take place?

What about your durable power of attorney? It’s one of the most powerful documents you have — if it has the powers you need. The same thing goes here. Have it reviewed by a knowledgeable attorney. I have seen durable power of attorney documents that range from two pages to thirty pages. Many of these documents, however, just don’t get the job done. They lack the “magic words” for the agent to take care of the person who signed the document and gave the powers to the agent. This is particularly the case when it comes to elder law. The majority of power of attorney documents are insufficient for elder law planning.

If you don’t have an estate plan in place, get it done now. If you already have an estate plan, have a qualified attorney review your trust, durable power of attorney, and other documents to make sure that they have the magic words that you need.

San Jose Estate Planning for Special Needs Family Members

How to Avoid Jeopardizing Government Benefits for Family Members With Special Needs:  The goal of special-needs estate planning is to provide for loved ones with disabilities when you are no longer there to organize and advocate on their behalf. Apart from the standard estate planning documents that most people are familiar with — such as wills, powers of attorney, and health care directives — parents of a special-needs child often have additional considerations that can only be addressed in certain legal documents.

A special-needs trust—sometimes called a “supplemental needs trust”—provides for the needs of a disabled person without disqualifying him or her from the benefits received from government programs such as Social Security and Medicaid. A supplemental needs trust enables a person that has a physical or mental disability, or an individual with a chronic or acquired illness, to have an unlimited amount of assets — held in trust for his or her benefit. In a properly drafted supplemental needs trust, assets are not considered “countable” assets for purposes of qualification for certain government benefits.

Such benefits may include Supplemental Security Income (SSI), Medicaid, vocational rehabilitation, subsidized housing, and other benefits based on need. For purposes of a supplemental needs trust, an individual is considered impoverished if his or her personal assets are less than $2,000.

A supplemental-needs trust provides for supplemental and extra care over and above that which the government provides.

Special-needs planning encompasses many areas of law, such as trusts and estates, public benefits law, and health care law. Planning for the future of an individual with special needs requires an in-depth knowledge of the federal laws as they pertain to government eligibility and legal documentation. There are important financial considerations, as well, for providing not just lifetime care, but also for an individual’s quality of life.

Special-needs estate planning requires a delicate balance of resources — and careful consideration of each family’s unique circumstances. As an experienced attorney in estate planning, Jim Ward assists his clients in developing special-needs trusts, wills, letters of intent, health care directives, powers of attorney and other means of ensuring that loved ones will enjoy a lifetime of care, assistance and financial security.

Don’t hesitate to call us today for a free assessment — 1-800-JIM-WARD.

Medi-Cal & Nursing Home Planning with a San Jose Elder Law Attorney

The decision to move a family member or loved one into a nursing home is one of the most difficult decisions you can make. When you or a loved one is sick and is faced with the prospect of moving to a skilled nursing facility, it’s important to remember that you have options. Careful planning, whether in advance or in response to an unanticipated need for care, can help protect your estate for your spouse and/or your children. One approach to planning is making sure that you receive all the benefits that you are entitled to under the Medi-Cal program.

Medi-Cal is California’s Medicaid program. It’s a public health program, which provides needed healthcare assistance for eligible individuals. The state of California and federal government finance it equally. The nursing home Medi-Cal program is designed to assist with the payment of skilled nursing care costs for individuals who qualify. Without Medi-Cal, a skilled nursing home resident can expect to pay about $9,500 per month in Santa Clara County.

There are three very important areas to consider when developing a comprehensive Medi-Cal plan:

  1. Eligibility planning (to qualify for Medi-Cal benefits)
  2. Income planning (to reduce or eliminate Medi-Cal beneficiary’s monthly “share-of-cost” co-payment)
  3. Medi-Cal estate recovery planning (to reduce or eliminate Medi-Cal estate recovery against the beneficiary’s estate)

Early Medi-Cal qualification planning can enable you to create estate-planning documents with Medi-Cal planning language. This will ensure that your appointed agent is able to carry out further Medi-Cal eligibility planning if you become incapacitated at a later time. Proper estate planning documents can also insure that your appointed agent has legal authority to implement an appropriate Medi-Cal estate recovery minimization or avoidance plan.

California laws regarding Medi-Cal eligibility are constantly changing. Because of this, it’s important to consult with an attorney who will help you understand how Medi-Cal changes can affect your current estate plan, as well as your plan for the future. As an experienced attorney in elder law and current in California Medi-Cal planning, Jim Ward can help you avoid the pitfalls associated with Medi-Cal. If you are planning for a sick parent or for the future of you or your spouse, please give Mr. Ward a call today to see how he can help you and your family.

San Jose Estate Planning Attorney: Incorrect Titling of Assets Can Have Costly Repercussions

One of the most overlooked aspects of estate planning is failing to properly title your assets. Coordinating the way that you title your assets with the type of estate plan you have can save you time and money and such a great deal of heartache for your loved ones.

Titling is directly tied to what happens to a person’s assets upon death. If a person’s assets are not titled in a manner that coordinates with their estate plan, upon death, certain dispositions specified in the will and/or trust may not be fulfilled. Therefore, your estate plan is only as good as your account titling. Understanding who owns what is a very important key to efficient estate planning; without the proper titling of property, even the most sophisticated and well-thought-out estate plan will fail.

A common example of this is that oftentimes people own different types of properties that have been acquired at different times in life. If assets are incorrectly titled in their will, they will not be distributed where they are intended to go. The title on the will often supersede what the will says and any other legal documents.

There are three ways that assets can be held at the time of death: fee simple (individually), tenancy in common (jointly), or by joint tenancy with right of survivorship (by contract). If assets are held fee simple, they are in your own name. If assets are held tenancy in common, they are held with at least one other person. And if a named beneficiary holds assets, they are held by joint tenancy with right of survivorship. Depending on your goals in life, and your wishes after death, the way you title your assets could be the difference between financial security and financial hardship for your family and/or beneficiaries. It is generally considered the best option to have major assets, such as real estate and investment accounts, held in the name of a couple’s or person’s revocable living trust.

As an experienced attorney in estate planning, Jim Ward will help you understand the differences between the various types of property ownership. His expert advice will not only guide you through a complicated process, but also ensure that your savings, investments, valuables, and real estate are distributed according to your wishes.

Please do not hesitate to call us today for a free assessment, 1-800-JIM-WARD.

The Importance of Beneficiary Designations in Estate Planning

When it comes to estate planning, making the proper beneficiary designations is an integral component of an effective estate plan. Understanding how your assets will transfer after your death helps you create an estate plan that ultimately grants your wishes and prevents unnecessary obstacles for your heirs. Some people may believe that creating an estate plan is too much work, or that they may not have enough assets to qualify as an estate. However, what you may not realize is that, (a.) your retirement savings are an important part of your estate, and (b.) your retirement savings will pass on to the beneficiaries named on the forms of your retirement savings accounts — not to the heirs named on your will or other estate planning documents. The same is true for life insurance.

“Avoid making mistakes that can cause an undesired effect after you die by properly designating your beneficiaries,” said Jim Ward. “As an experienced attorney in estate planning, I can help you avoid many of the common mistakes that are made when designating beneficiaries.”

A beneficiary designation clearly states who you wish to receive benefits upon your death. It’s imperative that you periodically review your estate plan with an attorney to make sure that all of your beneficiary designations are clear and current. This is particularly important when major life changes occur – including divorce, the birth of a child, the death of a beneficiary, or the marriage of a beneficiary.

Naming an “estate” as a beneficiary, not naming a beneficiary at all, listing a parent as a beneficiary after getting married and having children, not removing the name of an ex-husband or ex-wife as a beneficiary, or not having a contingent or secondary beneficiary are all very common mistakes.

In essence, reviewing and updating beneficiary designations is essential to creating an efficient distribution of your assets to heirs. Call Jim today for a free initial consultation so that he can assist you in choosing your beneficiaries strategically and within the context of your entire estate plan.

 

Avoiding the Pitfalls of Probate with a San Jose Estate Planning Attorney

With regard to estate planning, when individuals fail to plan, they plan to fail. When someone dies, his or her assets automatically become part of the estate, which is then distributed according to the decedent’s will.

Probate is the system through which a court determines whether a will is legally valid before the inheritances it covers can be given out. The probate process encompasses more than just proving the validity of a will. It includes the entire administrative process, including determination of the decedent’s total assets, paying debts, liabilities and taxes — and the distribution of remaining assets to beneficiaries. In effect, probate is the process that enables the beneficiaries to receive property that is rightfully theirs.

However, if no will is left, state law determines the relatives who should receive the assets. Structuring financial affairs with the assistance of an estate planning attorney will help avoid probate costs. The administration of an estate is a technical process that requires strong legal knowledge as well as the consideration of possibly complex family dynamics.

It’s wise to hire a skilled and effective estate planning attorney to help before running into any legal issues, such as the scenarios listed here:

Estate Litigation

Please be aware of the fact that estate litigation is common and may arise. It’s one of the fastest growing areas of the law. Once the assets in a will are made known, creditors, tax collectors, heirs, and other parties may suddenly want to have a say in the way the funds of the deceased are disbursed.

Contested Wills

Contested wills oftentimes create a legal issue. The interpretation of wills is a very intricate and complex area of law. A will can be opposed or contested on the grounds that the document is void due to the incapacity of the testator at the time the will was made; the failure to comply with the formalities required by law, or any matter sufficient may show the nonexistence of a valid will.

Guardianship

Guardianship challenges may occur as well. Conflicts over the care of minor children, or, in some cases, legal wards of the deceased, are some of the most emotional disputes that can occur during probate.

Jim Ward is an experienced estate planning attorney with offices in San Jose and the South Bay area. If you are an executor of an estate, or simply have questions about how probate works, seek knowledgeable legal counsel from Jim today.

 

 

 

 

Los Gatos Medi-Cal Attorney

How Do You Learn About Medi-Cal Benefits?

As an estate planning and elder law attorney, I’m frequently confronted with clients who have been misinformed about the law. This is particularly true regarding Medi-Cal and the coverage of nursing home costs. Conflicting information results in confusion. It also sometimes results in lack of action or taking the wrong action. Make sure you’re talking to someone who really knows the current law.

There are attorneys, Medi-Cal “consultants” and insurance salespeople who pass on erroneous information to clients. This can be extremely harmful. I recently read a published column by an insurance agent who stated that “the loophole that some people used to try to hide assets in order to qualify for Medicaid (Medi-Cal) was closed by the Deficit Reduction Act.” That’s true in most states, but the DRA 2005, which became law in early 2006, has still not yet been adopted in California. Anyone who tells you otherwise simply doesn’t know the law in California.

(Also, if you do things lawfully, you aren’t “hiding” anything at all. That’s ridiculous. Hiding assets will get you charged with Medi-Cal fraud. Following the law is a safer bet.)

One client of mine recently called me after she met with the investment professional at her bank, and she informed me that the investment professional had warned her about trying to get Medi-Cal to pay for her mother’s nursing home expenses “because there is a 60 month look-back period that will mess everything up.”  My response was, “Well, that investment professional must be working in Texas, because that certainly isn’t the law in California.”

These people will also frequently warn about estate recovery and how the government can get back all of the benefits at a later date. That simply isn’t true with proper planning. Don’t be scared away from doing the right thing by people misleading you with false information.

One of the easiest ways to see that an “expert” doesn’t know what they’re talking about is to discuss the look-back period for transfer penalties. I frequently see literature or a website quoting a 36 month or 60 month period. If you see that, don’t make an appointment to see the person, or get up and walk out if you’re already in their office. That isn’t the law in California.

Medi-Cal is a confusing area of the law, and many people take advantage of seniors’ lack of understanding of the Medi-Cal laws to sell them overpriced products and consulting services. CANHR (California Advocates for Nursing Home Reform, a non-profit organization) fights against elder financial abuse and this type of misinformation. CANHR states that the prices for these non-attorney consulting services to “pre-qualify” seniors for Medi-Cal generally ranges from $5,000 to $20,000, and the products being sold generate large commissions. They state that “the prices for these services are typically two-thirds higher than what a licensed estate planning attorney would charge.”

I’ve seen it in my own practice. One client came to me when her son discovered that she had paid for Medi-Cal “consulting” from some insurance people who were currently being sued for selling nearly worthless products to other seniors. She had already paid thousands of dollars in consulting fees to these people, and she wanted to get that money back. Another “consultant” told the client that the consultant “could handle it all, and there was no need to go see an attorney.”  The result was that the man was charged several thousand dollars more than an attorney would have charged.

Protect yourself. Use a licensed attorney who is knowledgeable about Medi-Cal and works with the Medi-Cal regulations on a regular basis.

San Jose Elder Law — Dementia and the Importance of Durable Power of Attorney

The Alzheimer’s Association strongly advises beginning legal plans if you or a loved one has been diagnosed with Dementia or Alzheimer’s disease. Dementia is a general term that refers to a cluster of symptoms such as the loss of memory, problems with communicating, and loss of other intellectual abilities serious enough to disrupt everyday life. Alzheimer’s disease is the most common form of dementia. Once a person is diagnosed with early dementia it is important that a family member, domestic partner, or friend assist the person in making legal plans. Legal planning includes making plans for health care and long-term care coverage, making plans for finances and property, and naming another person to make decisions on behalf of the person with dementia – and the planning needs to take place before the dementia becomes too severe.

A Durable Power of Attorney is a legal document that allows a person with dementia (called the principal) to name another individual (called an attorney-in-fact or agent), to make financial and other decisions for the principal. The person appointed is oftentimes a trusted family member, domestic partner, or close friend.

There are several areas that can create costly problems if you do not have a proper Durable Power of Attorney in place designating an Agent to act on your behalf during any period of incapacity. Conflicts can arise with real estate property, retirement benefits, estate and asset protection, and healthcare decision-making. On average, guardianship proceedings take months and can be quite costly in that they involve court filing fees, attorney fees, physician’s fees and court reporter fees. A well-drafted Durable Power of Attorney will give your Agent the authority to act on your behalf and to protect your physical well being as well as the financial well being of you and your family.

As essential as Durable Power of Attorney is, it faces new—and continuing—obstacles. Disruptions in the financial services industry as well as recent scams and frauds make it imperative for individuals to consult with a law attorney that can aid in creating a plan that not only provides financial protection for their family, but also ensures planning for their future.

Of importance, an attorney can explain what makes a Durable Power of Attorney “elder law friendly”. Many documents in existence today do not meet the potential needs of elder clients. These should be replaced with “elder law friendly” documents. As an elder law attorney, Jim Ward can assist in navigating the many variables associated with a Durable Power of Attorney. For example, whom can you trust as an agent? What powers should be included? When does the document take effect? When is a Durable Power of Attorney valid?

Jim Ward is an experienced elder law attorney who has offices in San Jose and South Valley. If you or a loved one has been diagnosed with Dementia or Alzheimer’s, proper legal planning is critical to avoiding financial hardship and emotional distress. Take the time to call Jim for a free initial consultation today.