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.

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.

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.

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.

 

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.

 

 

 

 

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.

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.

Along with the increased number of the people in our society, the amount of caregivers in demand is expected to increase two-fold.

As people reach their mid-70s, nearly half will experience physical problems that will likely result in limited mobility or a decreased ability to care for themselves. They’re going to need help, but the challenging part is that there’s no job tougher or more demanding than that of a caregiver. Oftentimes, caregivers become emotionally or physically drained. The job of a caregiver can oftentimes result in anxiety, depression, loneliness or illness. This is true with professional caregivers as well as family member caregivers.

With a majority of California households requiring a second income, families often can’t take the time off to care for their parents. Because of this, it’s more than likely that most California families will need to hire someone from outside of the family. Usually, this will come in the form of an assisted living facility or in-home care. This can include anything from assistance with shopping and transportation to cooking meals, housekeeping or bathing.

Since a large number of households feel the weight of the responsibility of taking care of family members, it’s important to put a plan in place. The purpose of a plan is to help the “main” caregiver. Since caregivers are in danger of a breakdown when not given a break, family relationships are at stake. Unfortunately, it’s not uncommon for the process of caregiving to tear a family apart.

When families take the time to divide tasks into the categories of time, money, and labor — everyone can share the responsibility. Additionally, I recommend holding family meetings either in-person or by phone to discuss the condition of a loved-one or to re-negotiate the core responsibilities.

At The Law Offices of James A. Ward, we walk families through the process of caregiving. Our specialty is estate planning and Medi-Cal planning, and we help to establish asset protection plans both for a crisis situation and also long before any loved ones fall ill or are in need of care.

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

San Jose Elder Law

For baby boomers moving into retirement and their golden years, times can be tough. Adult children are becoming caregivers and some are relied on to provide financial support for their parents and in-laws.

Statistics show that a little more than 32 percent of adult children chip in to help their parents out. And more than 75 percent of those that gave financial support to their parents wonder if their generosity will have an impact on their own financial situation in the future.

With the lagging economy we have seen, decreasing home values, investments that have gone bad, and savings that have been torn apart. Health care costs are climbing, and with most California households requiring a dual income, many cannot keep up.

“An experienced elder law attorney can help to preserve assets, as well as connect people with government benefits and resources to create a contingency plan that addresses possible changes in family health or finances,” said attorney Jim Ward of The Law Office of James A. Ward.

Doing the right thing by your parents is the main priority, however not being fully aware of the legal implications of this could possibly lead to lost Medi-Cal eligibility or negative tax consequences.

As an elder law attorney, Jim Ward can help mitigate these pitfalls. Consulting with Jim or someone who has the right knowledge in this area should be the main priority. Relying on advice from financial advisers or others that do not know the law is not a good idea when putting together a game plan for aging parents.

Jim Ward is an experienced elder law attorney who has offices in San Jose and South Valley. Consulting with an elder law attorney is critical at the outset of the beginning stages of retirement and when any sign of poor health or dementia comes into play. Take the time to call Jim for a free initial consultation today.

Estate planners and elder law attorneys are regularly confronted with clients in a crisis situation. The critical element for handling many of these cases is whether the client took those vital steps necessary to plan ahead before the crisis. Was there any planning at all? Were the planning documents prepared properly? Do the choices made earlier still reflect the current wishes? Are the documents legally valid?

It’s not uncommon to find people in their 60s, 70s, and even 80s who have done no planning. If they’re still mentally competent, they can set up a plan now. The problem cases are when there’s an accident, a sudden stroke, the rapid onset of dementia, or death. Who takes care of things for the individual, and what happens to the family? The family can always ask the government to intervene, but subjecting your family to Conservatorship (Guardianship) proceedings in court can be a very tortuous and costly experience, and the end result may not be what anyone really wanted.

Making advance arrangements for other people to make your decisions for you can save your family a lot of anguish, time, and money. You’re also more likely to get the end result you had hoped for in the event of a crisis.

Before a crisis hits, people should consider their long-term care needs and their family dynamics. If family members have squabbles or resentment now, that will likely intensify in a crisis situation. Frequently, an individual doesn’t want to offend a sibling or adult child by naming someone else to be the responsible person, so they name co-trustees for their trust, co-executors for their will, and co-agents for their durable power of attorney. The naming of two people to make the decisions together is an idea that frequently results in litigation and family members becoming enemies of each other when they disagree. It’s a risky option.

When it comes to family circumstances, families are always changing — births, deaths, divorces, second marriages, and self-destructive behaviors by heirs, are common issues. Is your son-in-law still the right person to make decisions for you even if he’s in the middle of a nasty divorce from your daughter? What if your financially astute mother is in the early stages of dementia when it comes time to make decisions that will affect you and your children?

Our laws are quite specific regarding the legal requirements of your planning documents. The do-it-yourself approach often leaves people with documents that are not valid, or are unclear as to the individual’s wishes. The use of do-it-yourself documents in estate planning is generally considered to be the number one reason for the growth of probate and estate litigation. You might save a few thousand dollars up front, but then your family burns through a few hundred thousand dollars in litigation expenses. It happens regularly.

If you haven’t yet arranged for others to make the necessary financial and health decisions for you, take the time to do it now. If you don’t have a legally valid document establishing the distribution of your assets upon your death, take the time to do it now — and do it all properly. You owe it to yourself and to your loved ones to get it done, and to get it done right. Lack of planning, and errors in planning, can be very costly for everyone.