Beyond Dollars and Cents: The Five Stages of Grief

Much of elder law practice revolves around dollars and cents, dealing, for example, with questions of how to save the house to pass onto future generations, how to find alternative sources of payment for nursing home care, or how to avoid estate taxes, to name but a few. However, elder law practice involves much more than that.

In my elder law practice, I counsel clients dealing with significant life changing circumstances. While it is clear that people suffer grief when their spouse, parent, or other loved one dies, it may not occur to some that other events likewise will trigger the grief cycle.

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Is it a problem to apply too early for Medicaid?

Some families make large gifts to family members — to enable a child to purchase a house, for example, or to assist a grandchild by paying college expenses. Others make the conscious choice to make a large gift of assets to their children to ensure that those funds will stand in the place of an inheritance should the parents ever require long term care in a nursing home. Without such large gift, those funds might otherwise be depleted by high nursing home costs.

Considering Future Medicaid Eligibility

When making such gifts, seniors must pay close attention to the affect such gifts would have on their ability to obtain government benefits to pay for future nursing home care. As long as sufficient time passes from the time of the gift and an application for Medicaid benefits, those assets will be protected and the gift-giver’s children will not be required to pay back the gift to cover the gift-giver’s care costs.

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Forms for our clients

We have added a page to our website to provide our clients with forms they may need to facilitate our representation. You may access that page by clicking on the word “Forms” in the menu at the top of this page.

One of the documents in the Forms directory is a Memorandum listing the items one needs to provide to us to support a Medicaid application .

Can a guardian be paid for services after the ward has died?

Battley v. Banks (Md. App. December 20, 2007)

The Gatesman Law Office assists clients in the appointment of a guardian for persons who become incapacitated and cannot make personal or financial decisions for themselves. Guardians are entitled to be compensated for their services, but they must petition the guardianship court for approval of such compensation.

When the disabled person, called the “ward” of the court, dies, the guardian must prepare a final account of the ward’s assets. That account should include the guardian’s final request for compensation.

Whether the guardian may pay such compensation to himself out of the guardianship assets before the ward’s assets are turned over the personal representative of the ward’s probate estate depended on the county in which the ward resided. The courts in different counties applied different rules.

Now, however, the rule is clear. Continue reading “Can a guardian be paid for services after the ward has died?”

Appeals Court Imposes Augmented Estate Rules

Schoukroun v. Karsenty (Md. App. December 11, 2007). A Technical Article for Maryland Elder Law and Estate Planning Attorneys

The Maryland Court of Special Appeals, in a seismic shift to the estates and trusts law of Maryland, issued an opinion on December 11, 2007, imposing augmented estate rules on the State of Maryland. This decision has significant consequences affecting Medicaid asset preservation planners, estate planners, family law practitioners and CPAs.

Prior to this decision, the Maryland legislature, despite years long advocacy by some members of the Estates and Trusts section of the Maryland State Bar Association, refused to add augmented estate rules to the estates and trusts law of Maryland.

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Can I give assets to my children and still get Medicaid to pay for nursing home care?

Many seniors have heard that giving assets to one’s children is a way to safeguard those assets so that they will pass on to the younger generation upon the senior’s death even if nursing home care is required. However, the law governing Medicaid has changed and it now appears that Medicaid will not be available to those who make such gifts.

Nevertheless, while the strategy of making gifts to children in anticipation of requiring nursing home care is much more complex under the new law, it still may be possible for you to preserve assets in this manner.

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What is the value of a life estate?

A technical notice for Maryland elder law professionals.

When a homeowner executes a deed retaining for himself a life estate, such action will be considered a transfer of resources for Medicaid eligibility purposes. However, the homeowner has not given away the entire property. What the homeowner has given away is a remainder interest, that is, the right to own the property after the homeowner dies.

The value of the transferred remainder interest depends on the age of the homeowner who retains the life estate. Maryland uses a table, Schedule MA-7, to assign value both to the transferred remainder interest and to the retained life estate. You may view that table by clicking here: Life Estate and Remainder Interest Table.

My spouse needs nursing home care; Can I keep all of our money?

Medicaid law allows an individual whose spouse needs nursing home care to keep as much as $101,640 in 2007, as well as the house, a car, certain life insurance policies and a few other assets. But this rule is misleading. Consider the following example.

Husband and Wife own a house, a car, and $100,000 in investment assets. Suppose that Husband needs to go to a nursing home. One would think he could get Medicaid immediately because there is only $100,000. However, the rule says that the spouse in the community can keep half of the total assets (the house and car are exempt and not included in this computation) but not more than the maximum amount, or $101,640.

In other words, in this example, Medicaid will not pay the nursing home costs until the couple has spent $50,000 because Wife is allowed to keep only half of the $100,000 they had when Husband entered the nursing home.

Is this the end of the story, or can Wife do something to enable her to keep the whole $100,000?

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Fed up with complicated legal language?

“Whereas, Wherefore, Where art thou?” Did you ever wonder why lawyers use such archaic language in their legal documents? One reason is that lawyers like to stick with tried and true methods. Another reason legal documents tend to be so complex is that lawyers want to be sure to cover all the bases, so they write paragraphs full of synonyms for the same descriptive term just in case one of the synonyms has a slightly different shade of meaning to ensure that the legal document will be effective in all relevant circumstances. But is this really necessary?

The Gatesman Law Office has undertaken the task of simplifying our legal documents. However, we must exercise great care to ensure that our more simple language does not result in a document that fails to cover all the bases. After careful review, we have created a five page, easy to understand Will to accomplish sophisticated estate tax planning that replaces our more archaic fifteen page document.

While there has been a movement in the legal profession that supports the use of “plain language” documents, it does not appear to have caught on with most lawyers. We are doing our best to promote the plain language ideal to simplify matters for our clients.