John L. Roberts
Certified Elder Law Attorney
John L. Roberts, J.D., is an Elder Law Attorney serving clients in Hampden County, MA. After practicing for 15 years, he confronted the challenges of family caregiving when his own father developed dementia. The experience transformed his practice, enabling him to help clients who are family caregivers from a place of true understanding.
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Question
Can my son be my POA and my two brothers be my witnesses?
If it is properly drafted, the Power of Attorney document can be an effective tool in the hands of your Attorney-in-Fact. It can... If it is properly drafted, the Power of Attorney document can be an effective tool in the hands of your Attorney-in-Fact. It can grant many powers, such as the power to buy and sell your real estate, powers to open and close bank accounts, cash out insurance policies, and transfer assets.
Your question points toward two big areas of consideration:
1) is your son the right person for the job? and
2) what formalities does your state requires to make a valid POA document?
First, the purpose of the Power of Attorney document is to have a trusted person, designated in advance, to manage your financial affairs. The trusted person will be able to manage things for you, if you become unable to speak for yourself. This avoids the need for Probate Court to appoint a Conservator. Nobody wants to put their family through the delays and costs of Probate Court. Is your son the best person for this responsibility?
As you think on this, ask whether you want the agent to be able to transfer assets to himself. If the Attorney-in-Fact is your spouse, that power of "self-dealing" may not matter at all. But if the person you are considering does not already co-own everything with you, maybe you don’t want him or her to have that power.
Also consider whether your agent should be required to account for what he’s doing with your money, and who he or she must be accountable to.
You can reach the best answers to these questions (and many more relevant concerns) by talking with an Elder Law or Estate Planning Attorney who is willing to take the time to understand you and your circumstances.
Second: what are the document signing formalities in your state that are required to make a valid POA document? What are the requirements for witnesses and notarization of the document in your state? Don't leave these issues to guess work, or reliance on general answers provided online.
Even if family members could be considered competent witnesses, do you really want to create potential conflict of interest issues within the family if the POA document needs to be used in the future? Remember, the POA must be acceptable to third party financial, business and real estate entities. Your goal is to avoid and eliminate any questions about the document. Disinterested witnesses who have no connection to you and no claim to your estate fulfill that goal.
Again, to be sure that the document will be valid and acceptable to third parties in the future, you need an Attorney who is responsible for drafting the document to your specifications in compliance with the law in your state. see more
Your question points toward two big areas of consideration:
1) is your son the right person for the job? and
2) what formalities does your state requires to make a valid POA document?
First, the purpose of the Power of Attorney document is to have a trusted person, designated in advance, to manage your financial affairs. The trusted person will be able to manage things for you, if you become unable to speak for yourself. This avoids the need for Probate Court to appoint a Conservator. Nobody wants to put their family through the delays and costs of Probate Court. Is your son the best person for this responsibility?
As you think on this, ask whether you want the agent to be able to transfer assets to himself. If the Attorney-in-Fact is your spouse, that power of "self-dealing" may not matter at all. But if the person you are considering does not already co-own everything with you, maybe you don’t want him or her to have that power.
Also consider whether your agent should be required to account for what he’s doing with your money, and who he or she must be accountable to.
You can reach the best answers to these questions (and many more relevant concerns) by talking with an Elder Law or Estate Planning Attorney who is willing to take the time to understand you and your circumstances.
Second: what are the document signing formalities in your state that are required to make a valid POA document? What are the requirements for witnesses and notarization of the document in your state? Don't leave these issues to guess work, or reliance on general answers provided online.
Even if family members could be considered competent witnesses, do you really want to create potential conflict of interest issues within the family if the POA document needs to be used in the future? Remember, the POA must be acceptable to third party financial, business and real estate entities. Your goal is to avoid and eliminate any questions about the document. Disinterested witnesses who have no connection to you and no claim to your estate fulfill that goal.
Again, to be sure that the document will be valid and acceptable to third parties in the future, you need an Attorney who is responsible for drafting the document to your specifications in compliance with the law in your state. see more
Question
Is an IRA exempt from estate recovery?
Your question about Social Security income is answered with an understanding of the concept of "Patient Paid Amount." The PPA is... Your question about Social Security income is answered with an understanding of the concept of "Patient Paid Amount." The PPA is the total amount of monthly income that must be paid for care, minus the Personal Needs Allowance ("PNA"). The PNA is the small amount that your state allows your father to keep each month for personal needs.
(If you father has a spouse, the spouse gets to keep all of the couple's income, up to an amount called the spouse's Minimum or Maximum Monthly Maintenance Needs Allowance.
The answer to your IRA question depends on the state where your father is located.
For example, my state (Massachusetts) is very restrictive. The IRA will count against the applicant. In my state, the IRA must be cashed out and then spent down for care or for non-countable assets. The only exceptions are found when the Medicaid applicant has a disabled family member to whom the cashed out IRA proceeds can be transferred, or a spouse who can keep an amount up to the Community Spouse Asset Allowance.
(As you know, there can't be joint ownership of an IRA because: it's an Individual Retirement Account.)
But in Kentucky and DC, the institutionalized person's IRA is an exempt asset.
Other states like New York and California are almost as generous. The Medicaid applicant can keep the entire IRA as long as it is paying income to him or her, and the income helps pay for care.
Eight states, including NY and Florida, allow a community spouse to keep an unlimited amount of their own IRA funds as long as the IRA is paying out income.
And, more than a dozen states allow the community spouse to keep an unlimited amount of their own IRA funds even if the IRA is not paying out income yet.
As you can see, talking with an elder law attorney in your state can help you make the best decisions on how to apply and qualify for Medicaid long term care. see more
(If you father has a spouse, the spouse gets to keep all of the couple's income, up to an amount called the spouse's Minimum or Maximum Monthly Maintenance Needs Allowance.
The answer to your IRA question depends on the state where your father is located.
For example, my state (Massachusetts) is very restrictive. The IRA will count against the applicant. In my state, the IRA must be cashed out and then spent down for care or for non-countable assets. The only exceptions are found when the Medicaid applicant has a disabled family member to whom the cashed out IRA proceeds can be transferred, or a spouse who can keep an amount up to the Community Spouse Asset Allowance.
(As you know, there can't be joint ownership of an IRA because: it's an Individual Retirement Account.)
But in Kentucky and DC, the institutionalized person's IRA is an exempt asset.
Other states like New York and California are almost as generous. The Medicaid applicant can keep the entire IRA as long as it is paying income to him or her, and the income helps pay for care.
Eight states, including NY and Florida, allow a community spouse to keep an unlimited amount of their own IRA funds as long as the IRA is paying out income.
And, more than a dozen states allow the community spouse to keep an unlimited amount of their own IRA funds even if the IRA is not paying out income yet.
As you can see, talking with an elder law attorney in your state can help you make the best decisions on how to apply and qualify for Medicaid long term care. see more
Question
Is it shameful to feel relieved when abusive parent dies?
One of the best treatments of this topic I have found to help clients who come to my office for help with elder care planning and estate... One of the best treatments of this topic I have found to help clients who come to my office for help with elder care planning and estate settlement and probate is a booklet by H. Norman Wright called: Experiencing Grief. The author would probably say that yours are healthy emotions that help with healing.
Each chapter in the booklet is 2 -3 short pages, and your question is one of many that are treated with wonderful insight.
After the tree on the front cover, there is only 1 other picture illustration in the booklet. It is a diagram of all the bad feelings that can overwhelm a person if they don't admit and (as the title recommends) experience grieving. It is a picture of serious problems that sprout and spout from "denial" of grief.
Your thoughful post points toward the path to healing that all of us need to seek. see more
Each chapter in the booklet is 2 -3 short pages, and your question is one of many that are treated with wonderful insight.
After the tree on the front cover, there is only 1 other picture illustration in the booklet. It is a diagram of all the bad feelings that can overwhelm a person if they don't admit and (as the title recommends) experience grieving. It is a picture of serious problems that sprout and spout from "denial" of grief.
Your thoughful post points toward the path to healing that all of us need to seek. see more
Question
What to do with a tax refund?
Medicaid regulations in your state include "non-countable assets" and services that you can acquire for your mother using her tax... Medicaid regulations in your state include "non-countable assets" and services that you can acquire for your mother using her tax refund.
You may also be compensated for your work, if you have a Caregiver Contract with your mother.
Talk with an Elder Law Attorney for ideas on how to help your mother. The legal work is another service that can be paid with the refund that would otherwise become "excess assets" if you keep it for more than 1 month. see more
You may also be compensated for your work, if you have a Caregiver Contract with your mother.
Talk with an Elder Law Attorney for ideas on how to help your mother. The legal work is another service that can be paid with the refund that would otherwise become "excess assets" if you keep it for more than 1 month. see more
Question
Will Medicaid count a condo that my sisters and I inherited from our dad as our mother's asset if we deeded it...
The answer to your question is determined by the Medicaid regulations in your state that govern "disqualifying transfers." If... The answer to your question is determined by the Medicaid regulations in your state that govern "disqualifying transfers."
If your mother applies for Medicaid in the future, you will need to take a definite position on how your back-and-forth transfers of the condo fit into those regulations.
It sounds like your mother could claim she only returned to you and your sisters something that you had gifted to her. But you need the expertise of an Elder Law Attorney who has worked with Medicaid applications and who understands Real Estate law in your state.
In retrospect, you can see the value of working with an Elder Law Attorney from the very beginning, when you and your sisters first inherited the condo (before you sign and file deeds involving real estate).
The perspective of a potential Medicaid application in the future gives you and the Elder Law Attorney a timeline for making the best decisions on real estate transfers at each step of the journey.
By following up the "step transactions" that you have already made with the planning work of an Elder Law Attorney now, you give your mother the best chance for a smooth application process, if it is needed in the future.
Select an Elder Law Attorney who will be able to follow up any opinion and advice provided now with the service of Medicaid application preparation and filing in the future. see more
If your mother applies for Medicaid in the future, you will need to take a definite position on how your back-and-forth transfers of the condo fit into those regulations.
It sounds like your mother could claim she only returned to you and your sisters something that you had gifted to her. But you need the expertise of an Elder Law Attorney who has worked with Medicaid applications and who understands Real Estate law in your state.
In retrospect, you can see the value of working with an Elder Law Attorney from the very beginning, when you and your sisters first inherited the condo (before you sign and file deeds involving real estate).
The perspective of a potential Medicaid application in the future gives you and the Elder Law Attorney a timeline for making the best decisions on real estate transfers at each step of the journey.
By following up the "step transactions" that you have already made with the planning work of an Elder Law Attorney now, you give your mother the best chance for a smooth application process, if it is needed in the future.
Select an Elder Law Attorney who will be able to follow up any opinion and advice provided now with the service of Medicaid application preparation and filing in the future. see more
Question
My mother is in a nursing home. Can we move into her house rent free?
ForKing has supplemented the question post by explaining: her mother has a "partnership policy." This indicates that her mother... ForKing has supplemented the question post by explaining: her mother has a "partnership policy." This indicates that her mother has a Long Term Care Insurance policy.
Here is how the National Association of Insurance Commissioners explain Long-Term Care Insurance Partnership Policies:
"In some states, there are long-term care insurance partnership policies that help you manage the financial impact of spending down to meet Medicaid eligibility standards. When you buy a partnership policy, you’re protected from the normal Medicaid requirement to spend down your income and assets to become eligible."
An Elder Law Attorney in your state could help you coordinate LTC policy benefits with the Medicaid spend down, application for eligibility, and your plans for the house.
A complete discussion of LTC Insurance Partnership Policies is at:
https://www.ltcfeds.com/epAssets/documents/NAIC_Shoppers_Guide.pdf see more
Here is how the National Association of Insurance Commissioners explain Long-Term Care Insurance Partnership Policies:
"In some states, there are long-term care insurance partnership policies that help you manage the financial impact of spending down to meet Medicaid eligibility standards. When you buy a partnership policy, you’re protected from the normal Medicaid requirement to spend down your income and assets to become eligible."
An Elder Law Attorney in your state could help you coordinate LTC policy benefits with the Medicaid spend down, application for eligibility, and your plans for the house.
A complete discussion of LTC Insurance Partnership Policies is at:
https://www.ltcfeds.com/epAssets/documents/NAIC_Shoppers_Guide.pdf see more
Question
Will Medicaid pay for a private personal care aide?
Medicaid regulations are different in every state, and each state has different terms and jargon to describe the resources available You... Medicaid regulations are different in every state, and each state has different terms and jargon to describe the resources available
You mentioned that your mother is eligible for "Medicaid Long Term Care." Is your mother going to be a resident in a facility, or is your mother still living at home, in the community?
If she is living in the community, your state's Medicaid program will have reimbursement plans to pay caregivers, but you have to fit the services into the framework of your state's program.
My state (Massachusetts) offers Adult Foster Care (AFC) for people who cannot live alone safely, and who have a family member or trusted friend who wants to devote time and attention that provides 24-hour care. AFC pays the caregiver an annual tax free stipend. The program is sometimes called by the names of agencies that serve as the overseers of the host caregiver: Adult Family Care and Caregiver Homes.
Another program in my state, Personal Care Attendant (PCA), allows you to hire a son, daughter or any family member (but not a spouse). The program pays for home care services for people who need daily assistance with ADLs. But the elder must submit time slips to a "fiscal intermediary" which processes payroll checks and income tax withholding.
Community Choices is a program that provides as much support/services as needed for people who are clinically frail enough to qualify for immediate nursing home admission.
Senior Care Options (SCO) combines Medicare and Medicaid.
To get specific answers to questions about Medicaid payment for care in your state, talk with your local Aging Services Access Point or an Elder Law Attorney. see more
You mentioned that your mother is eligible for "Medicaid Long Term Care." Is your mother going to be a resident in a facility, or is your mother still living at home, in the community?
If she is living in the community, your state's Medicaid program will have reimbursement plans to pay caregivers, but you have to fit the services into the framework of your state's program.
My state (Massachusetts) offers Adult Foster Care (AFC) for people who cannot live alone safely, and who have a family member or trusted friend who wants to devote time and attention that provides 24-hour care. AFC pays the caregiver an annual tax free stipend. The program is sometimes called by the names of agencies that serve as the overseers of the host caregiver: Adult Family Care and Caregiver Homes.
Another program in my state, Personal Care Attendant (PCA), allows you to hire a son, daughter or any family member (but not a spouse). The program pays for home care services for people who need daily assistance with ADLs. But the elder must submit time slips to a "fiscal intermediary" which processes payroll checks and income tax withholding.
Community Choices is a program that provides as much support/services as needed for people who are clinically frail enough to qualify for immediate nursing home admission.
Senior Care Options (SCO) combines Medicare and Medicaid.
To get specific answers to questions about Medicaid payment for care in your state, talk with your local Aging Services Access Point or an Elder Law Attorney. see more
Question
My mother is in a nursing home. Can we move into her house rent free?
Your question seems to be about Medicaid Estate Recovery in the future. The first question to ask is: can your mother be eligible for... Your question seems to be about Medicaid Estate Recovery in the future.
The first question to ask is: can your mother be eligible for Medicaid now, since she still has ownership of a house?
The answer depends on the ownership arrangement. Is your mother the only owner of the house? Did she set up a Life Estate arrangement in past years? How long ago?
You are best served by talking with an Elder Law Attorney in your state who can explain how your mother's situation fits into the Medicaid regulations in your state.
When you understand the current status of the real estate you can make good decisions about next steps involving the house, which factor into planning an application for Medicaid. see more
The first question to ask is: can your mother be eligible for Medicaid now, since she still has ownership of a house?
The answer depends on the ownership arrangement. Is your mother the only owner of the house? Did she set up a Life Estate arrangement in past years? How long ago?
You are best served by talking with an Elder Law Attorney in your state who can explain how your mother's situation fits into the Medicaid regulations in your state.
When you understand the current status of the real estate you can make good decisions about next steps involving the house, which factor into planning an application for Medicaid. see more
Question
When my will says that the house is to be sold & divided up between 4 children & 1 of the children wants the h...
The postings in answer to this question suggest several scenarios for settling an estate and distributing the home equity to the children.... The postings in answer to this question suggest several scenarios for settling an estate and distributing the home equity to the children.
The best plan for you depends on your circumstances. An Estate Planning - Probate Attorney in your state who understands your facts can give you the insights you need to make a good plan.
Topics to cover with the Attorney include:
your health and whether it's likely that you will need long term care in the future;
whether you want to keep your options open to cash out the home equity and use it for a new living situation in the future;
any mortgage debt currently on the house.
Discussing these topics helps the advisor recommend Probate and non-Probate methods; Will substitutes like Trusts and life ownership arrangements for real estate could provide alternatives.
If the house is paid for, and your Will is an interim plan to cover unexpected sudden death, the Probate process would give the surviving child who wants the property a chance to refinance and buy out the other siblings.
If the Will based plan stays in effect and you need Medicaid in the future, your state's Medicaid agency will be able to recover from the Probate estate for any expenses incurred after age 55.
In my state (Massachusetts) the way to think about Medicaid for people over age 55 is: it's free, unless you have a Probate estate.
https://www.medicaid.gov/medicaid/eligibility/estate-recovery/index.html
https://www.law.cornell.edu/uscode/text/42/1396p see more
The best plan for you depends on your circumstances. An Estate Planning - Probate Attorney in your state who understands your facts can give you the insights you need to make a good plan.
Topics to cover with the Attorney include:
your health and whether it's likely that you will need long term care in the future;
whether you want to keep your options open to cash out the home equity and use it for a new living situation in the future;
any mortgage debt currently on the house.
Discussing these topics helps the advisor recommend Probate and non-Probate methods; Will substitutes like Trusts and life ownership arrangements for real estate could provide alternatives.
If the house is paid for, and your Will is an interim plan to cover unexpected sudden death, the Probate process would give the surviving child who wants the property a chance to refinance and buy out the other siblings.
If the Will based plan stays in effect and you need Medicaid in the future, your state's Medicaid agency will be able to recover from the Probate estate for any expenses incurred after age 55.
In my state (Massachusetts) the way to think about Medicaid for people over age 55 is: it's free, unless you have a Probate estate.
https://www.medicaid.gov/medicaid/eligibility/estate-recovery/index.html
https://www.law.cornell.edu/uscode/text/42/1396p see more
Question
Any insight into "No progress" criteria for medicare rehab (SNF) 100 day benefit?
Years after a Federal Court tried to end this misunderstanding about Medicare coverage, the Center for Medicare Advocacy says it... Years after a Federal Court tried to end this misunderstanding about Medicare coverage, the Center for Medicare Advocacy says it "still regularly hears from beneficiaries facing erroneous 'Improvement Standard' denials in home health, skilled nursing facility, and outpatient therapy settings."
The Center encourages Medicare beneficiaries and their families to appeal unfair “Improvement Standard” denials, even though Medicare patients "and their families should not be in a position of having to educate providers, contractors, and adjudicators about Medicare policy."
They advise patients "and their families to continue citing to the Jimmo Settlement and related materials when challenging denials."
But the most effective way to avoid the need to fight a Medicare appeals (which is not likely to succeed) is to engage the physicians and caseworkers before the time they must make a decision to terminate their Medicare billing.
A Geriatric Care Manager or Advocate who understands the patient's needs, the medical providers, and their billing practices, gives you the best chance to gather the facts needed to continue care paid by Medicare. Hire the advocate as soon as the patient is in the hospital, before being discharged to a facility, and you give yourself the best chance to better results.
These professional Advocates are privately paid by the patient. But the cost is worth the benefit of having an objective advocate working alongside you and your family.
https://www.medicareadvocacy.org/jimmo-implementation-update-where-is-cms/
https://www.rd.com/health/conditions/save-money-fighting-hidden-hospital-policy/ see more
The Center encourages Medicare beneficiaries and their families to appeal unfair “Improvement Standard” denials, even though Medicare patients "and their families should not be in a position of having to educate providers, contractors, and adjudicators about Medicare policy."
They advise patients "and their families to continue citing to the Jimmo Settlement and related materials when challenging denials."
But the most effective way to avoid the need to fight a Medicare appeals (which is not likely to succeed) is to engage the physicians and caseworkers before the time they must make a decision to terminate their Medicare billing.
A Geriatric Care Manager or Advocate who understands the patient's needs, the medical providers, and their billing practices, gives you the best chance to gather the facts needed to continue care paid by Medicare. Hire the advocate as soon as the patient is in the hospital, before being discharged to a facility, and you give yourself the best chance to better results.
These professional Advocates are privately paid by the patient. But the cost is worth the benefit of having an objective advocate working alongside you and your family.
https://www.medicareadvocacy.org/jimmo-implementation-update-where-is-cms/
https://www.rd.com/health/conditions/save-money-fighting-hidden-hospital-policy/ see more
Question
Need advice when dealing with elder care lawyers....
Your explain how you have met with several Elder Law Attorneys, and end up feeling even more confused than when you first asked for advice... Your explain how you have met with several Elder Law Attorneys, and end up feeling even more confused than when you first asked for advice about what to do next for your father.
When providing a client with the technical legal information needed to make long-term care decisions, the view of the Elder Law Attorney is toward protecting quality of life with the assets and resources that are available.
Try approaching your advisors with definite statements about what you have decided to do next. Decision making is difficult in the midst of declining health. Try to give the advisor a definite understanding of what you and your family want to do.
If you have decided to move your father to assisted living, the Elder Law Attorney can determine the deficit between the monthly rent and your parents' monthly income.
If you have decided to sell the house, consultation with a Real Estate Broker can determine how much the market will give you in sale proceeds. That can provide basis for a projection of how long the money will last to cover the monthly deficits.
You mentioned that you are a remainder owner of the property. That fact can determine whether, or how much, capital gains tax must be paid on the sale proceeds. Have the Elder Law Attorney advise you on the real estate closing. It may still be possible to get a full Principal Residence Exclusion from any capital gain if you rearrange the ownership of the house before it is sold.
Elder Law Attorneys must be able to understand the progressing care needs of clients. Without this perspective, Medicaid planning and efforts to protect or set aside assets are, at best, incomplete.
At worst, asset-protection advice without a sound understanding of clients' needs can cause the family to misunderstand how financial resources and care programs in your state can be coordinated to prevent a nursing home admission.
https://www.irs.gov/pub/irs-pdf/p523.pdf
26 U.S. Code § 121.Exclusion of gain from sale of principal residence
https://www.law.cornell.edu/uscode/text/26/121 see more
When providing a client with the technical legal information needed to make long-term care decisions, the view of the Elder Law Attorney is toward protecting quality of life with the assets and resources that are available.
Try approaching your advisors with definite statements about what you have decided to do next. Decision making is difficult in the midst of declining health. Try to give the advisor a definite understanding of what you and your family want to do.
If you have decided to move your father to assisted living, the Elder Law Attorney can determine the deficit between the monthly rent and your parents' monthly income.
If you have decided to sell the house, consultation with a Real Estate Broker can determine how much the market will give you in sale proceeds. That can provide basis for a projection of how long the money will last to cover the monthly deficits.
You mentioned that you are a remainder owner of the property. That fact can determine whether, or how much, capital gains tax must be paid on the sale proceeds. Have the Elder Law Attorney advise you on the real estate closing. It may still be possible to get a full Principal Residence Exclusion from any capital gain if you rearrange the ownership of the house before it is sold.
Elder Law Attorneys must be able to understand the progressing care needs of clients. Without this perspective, Medicaid planning and efforts to protect or set aside assets are, at best, incomplete.
At worst, asset-protection advice without a sound understanding of clients' needs can cause the family to misunderstand how financial resources and care programs in your state can be coordinated to prevent a nursing home admission.
https://www.irs.gov/pub/irs-pdf/p523.pdf
26 U.S. Code § 121.Exclusion of gain from sale of principal residence
https://www.law.cornell.edu/uscode/text/26/121 see more
Question
Has anyone hired private caregivers "under the table" and if so, how did it work out? What advice would you h...
If you plan to hire caregivers yourself, you’ll need to understand: 1 - Your state’s wage and hour laws and the federal Fair Labor... If you plan to hire caregivers yourself, you’ll need to understand:
1 - Your state’s wage and hour laws and the federal Fair Labor Standards Act regulations issued by the U.S. Department of Labor;
2- IRS and your state’s income tax reporting and withholding requirements; and
3 - Reasons why you must protect yourself and your in-laws, and their caregiver, with unemployment insurance and workers’ compensation coverage.
Domestic workers are household employees, not independent contractors. The employer must withhold the employee’s Social Security and Medicare contributions and pay a matching portion. At the end of the year, the employer is responsible to provide their employee with a Form W-2 reporting wages paid and taxes withheld.
Violations of the FLSA can surface when the IRS or your state's Department of Revenue catches a family’s failure to file employment taxes. You may find an ideal caregiver, who assures you she will take care of taxes on her own, using a Form 1099 issued by a family member.
But when the caregiver goes to her accountant the following year, he may say she was mis-classified as an Independent Contractor, and then file a Form 8919, which reports the individual’s share of uncollected Social Security and Medicare taxes. The Form 8919 gives the caregiver credit for Social Security quarters corresponding to her wages and names the family member as the responsible employer.
This is only one of the risks that you take if you decide to hire "under the table."
An Elder Law Attorney and/or accountant in your state can help you spot the issues. There are also nationally recognized online payroll services that help people comply with the wage and hour laws governing caregiver employees. see more
1 - Your state’s wage and hour laws and the federal Fair Labor Standards Act regulations issued by the U.S. Department of Labor;
2- IRS and your state’s income tax reporting and withholding requirements; and
3 - Reasons why you must protect yourself and your in-laws, and their caregiver, with unemployment insurance and workers’ compensation coverage.
Domestic workers are household employees, not independent contractors. The employer must withhold the employee’s Social Security and Medicare contributions and pay a matching portion. At the end of the year, the employer is responsible to provide their employee with a Form W-2 reporting wages paid and taxes withheld.
Violations of the FLSA can surface when the IRS or your state's Department of Revenue catches a family’s failure to file employment taxes. You may find an ideal caregiver, who assures you she will take care of taxes on her own, using a Form 1099 issued by a family member.
But when the caregiver goes to her accountant the following year, he may say she was mis-classified as an Independent Contractor, and then file a Form 8919, which reports the individual’s share of uncollected Social Security and Medicare taxes. The Form 8919 gives the caregiver credit for Social Security quarters corresponding to her wages and names the family member as the responsible employer.
This is only one of the risks that you take if you decide to hire "under the table."
An Elder Law Attorney and/or accountant in your state can help you spot the issues. There are also nationally recognized online payroll services that help people comply with the wage and hour laws governing caregiver employees. see more
Question
Is it advisable to see an elder care attorney to help with Medicaid or Medicare benefits for assisted living/...
The sooner you talk with an Elder Law Attorney, the sooner you will have a clear understanding of the care resources and payment sources... The sooner you talk with an Elder Law Attorney, the sooner you will have a clear understanding of the care resources and payment sources open to you, as your father graduates to higher levels of care.
His life savings can be directed to pay for care that he needs to stay in the least restrictive setting, and can also be allocated to pay for the valuable services you provide to him. If you establish a Caregiver Agreement now, payments to you could be accepted by Medicaid as valid transfers, if he applies for eligibility in the future.
An Elder Law Attorney in your state can explain the Medicaid regulations that are relevant to you, and make you aware of programs that can supplement his private payment for services.
If you wait until a nursing home admission is required, the facility business office might offer Medicaid application preparation service at no charge. But the application preparers work for the facility (not you) and they have no duty to make sure your father's interests are first priority.
Since private payment rates are higher than the Medicaid rate, a facility paid application prep service does not have an incentive to protect what remains of your father's life savings. see more
His life savings can be directed to pay for care that he needs to stay in the least restrictive setting, and can also be allocated to pay for the valuable services you provide to him. If you establish a Caregiver Agreement now, payments to you could be accepted by Medicaid as valid transfers, if he applies for eligibility in the future.
An Elder Law Attorney in your state can explain the Medicaid regulations that are relevant to you, and make you aware of programs that can supplement his private payment for services.
If you wait until a nursing home admission is required, the facility business office might offer Medicaid application preparation service at no charge. But the application preparers work for the facility (not you) and they have no duty to make sure your father's interests are first priority.
Since private payment rates are higher than the Medicaid rate, a facility paid application prep service does not have an incentive to protect what remains of your father's life savings. see more
Question
Providing my social security details to my father's attorney?
We now live in an electronic age, when personal and private information about you and your family can be sent around the world in a moment.... We now live in an electronic age, when personal and private information about you and your family can be sent around the world in a moment. Attorneys, like other professionals who provide people with advice on personal financial matters, are required to tell Clients about their policies regarding privacy of Client information. Attorneys are also bound by professional standards of confidentiality that are even more stringent than those required by the federal law.
You are smart to ask why the Estate Planning Attorney wants to put your personal information into your father's Estate Planning file. If the Law Office can't provide you with a specific reason, then their request must be part of a general practice of information gathering that was common in another era, but is not acceptable now.
I never ask clients to provide any information unless there is a specific reason that will help advance their case.
Asking for your date of birth could be a valid request: by learning your age the Attorney can help your father allocate assets in his Estate, and make sure that the assets pass to you without unnecessary Probate proceedings.
Asking for your Social Security number might be an unnecessary request. Unless the Law Office will have to file an Estate Tax Return or report a beneficiary distribution or transaction to the IRS, the Law Office won't need that information.
Compare the IRS requirements that must be met by the Custodian of an IRA or 401k Account: the Custodian must have both the birthdate and Taxpayer ID of the account beneficiary in order to make a distribution to the beneficiary. Maybe the Law Office just wants to do a thorough job, and be prepared to provide the information to a bank or financial custodian when the time comes. That is a reasonable.
But it is equally reasonable for you to engage with the person or firm that wants your information, and learn from them why they are asking for it.
When you get a good answer, you will be able to make a good decision about how much information you want to disclose now, and what information you may want to wait to disclose until there is a more definite reason to provide it. see more
You are smart to ask why the Estate Planning Attorney wants to put your personal information into your father's Estate Planning file. If the Law Office can't provide you with a specific reason, then their request must be part of a general practice of information gathering that was common in another era, but is not acceptable now.
I never ask clients to provide any information unless there is a specific reason that will help advance their case.
Asking for your date of birth could be a valid request: by learning your age the Attorney can help your father allocate assets in his Estate, and make sure that the assets pass to you without unnecessary Probate proceedings.
Asking for your Social Security number might be an unnecessary request. Unless the Law Office will have to file an Estate Tax Return or report a beneficiary distribution or transaction to the IRS, the Law Office won't need that information.
Compare the IRS requirements that must be met by the Custodian of an IRA or 401k Account: the Custodian must have both the birthdate and Taxpayer ID of the account beneficiary in order to make a distribution to the beneficiary. Maybe the Law Office just wants to do a thorough job, and be prepared to provide the information to a bank or financial custodian when the time comes. That is a reasonable.
But it is equally reasonable for you to engage with the person or firm that wants your information, and learn from them why they are asking for it.
When you get a good answer, you will be able to make a good decision about how much information you want to disclose now, and what information you may want to wait to disclose until there is a more definite reason to provide it. see more
Question
Can a trust protect assets from Medicaid? I believe one should pay as much as possible, but I'd like to protec...
An Elder Law Attorney in your state can explain how you and your family can benefit from planning that includes an Irrevocable Trust. The... An Elder Law Attorney in your state can explain how you and your family can benefit from planning that includes an Irrevocable Trust.
The Irrevocable Trust can be written to protect Medicaid eligibility, avoid Probate, and keep the principal residence exclusion from income taxation in case you decide to sell your home during your lifetime.
As others have posted here, the many considerations include whether you have a spouse, or a disabled family member.
How you structure and fund the Trust depends on your current care needs, and your health. The planning involves a realistic look at how soon your might need Medicaid, and how much control of assets you are willing to give over to a Trustee.
The Elder Law Attorney who knows Medicaid and Estate Planning will be able to explain the options that make sense for you and your family. see more
The Irrevocable Trust can be written to protect Medicaid eligibility, avoid Probate, and keep the principal residence exclusion from income taxation in case you decide to sell your home during your lifetime.
As others have posted here, the many considerations include whether you have a spouse, or a disabled family member.
How you structure and fund the Trust depends on your current care needs, and your health. The planning involves a realistic look at how soon your might need Medicaid, and how much control of assets you are willing to give over to a Trustee.
The Elder Law Attorney who knows Medicaid and Estate Planning will be able to explain the options that make sense for you and your family. see more
Question
Already receive Medicaid, then received property with brother from our father, he lives there until his death....
Your question involves Medicaid Estate Recovery, and asset limits for Medicaid Eligibility now and in the future. Does your share in your... Your question involves Medicaid Estate Recovery, and asset limits for Medicaid Eligibility now and in the future.
Does your share in your father's house affect the asset limit for the Medicaid program that is helping you now? How about in the future? Will Estate Recovery in your state affect assets that you want to pass to your daughter, or others in your family? These are additional specific questions that can help focus your thoughts.
The government's Medicaid website explains: State Medicaid programs must recover certain Medicaid benefits paid on behalf of a Medicaid enrollee. For individuals age 55 or older, states are required to seek recovery of payments from the individual's estate for nursing facility services, home and community-based services, and related hospital and prescription drug services.
https://www.medicaid.gov/medicaid/eligibility/estate-recovery/index.html
To get answers that you can rely on, talk with an Elder Law Attorney who knows the Probate Law and Medicaid Regulations in your state. You can learn when your daughter would qualify for Medicaid's Caregiver Child exception for transfer of your residence, and create a strategy for asset ownership and transfer that protects you and your daughter now, and in the future. see more
Does your share in your father's house affect the asset limit for the Medicaid program that is helping you now? How about in the future? Will Estate Recovery in your state affect assets that you want to pass to your daughter, or others in your family? These are additional specific questions that can help focus your thoughts.
The government's Medicaid website explains: State Medicaid programs must recover certain Medicaid benefits paid on behalf of a Medicaid enrollee. For individuals age 55 or older, states are required to seek recovery of payments from the individual's estate for nursing facility services, home and community-based services, and related hospital and prescription drug services.
https://www.medicaid.gov/medicaid/eligibility/estate-recovery/index.html
To get answers that you can rely on, talk with an Elder Law Attorney who knows the Probate Law and Medicaid Regulations in your state. You can learn when your daughter would qualify for Medicaid's Caregiver Child exception for transfer of your residence, and create a strategy for asset ownership and transfer that protects you and your daughter now, and in the future. see more
Question
Regarding the 5-year look-back when applying for Medicaid, what types of expenditures are questionable?
An Elder Law Attorney in your state can help you further improve your bookkeeping system, and show you how to justify all of the expenses... An Elder Law Attorney in your state can help you further improve your bookkeeping system, and show you how to justify all of the expenses needed to provide good care, including payment for your work.
The specific advice you obtain from an Attorney who understands the application process will benefit you and your family in the future, and provide peace of mind now. see more
The specific advice you obtain from an Attorney who understands the application process will benefit you and your family in the future, and provide peace of mind now. see more
Question
Can a named beneficiary in a family trust qualify for Medicaid after they have spent down all their other asse...
If the Guardian is not a professional who understands the Medicaid regulations in your state, ask the Guardian to consult an Elder Law... If the Guardian is not a professional who understands the Medicaid regulations in your state, ask the Guardian to consult an Elder Law Attorney in your state who will read the Trust document and advise on the best path to eligibility.
The Elder Law Attorney can determine if the Trust complies with eligibility regulations or whether it can be reformed or decanted to fit the rules in your state.
There are many regulations, and alternative trust arrangements, that can help applicants and disabled family members. see more
The Elder Law Attorney can determine if the Trust complies with eligibility regulations or whether it can be reformed or decanted to fit the rules in your state.
There are many regulations, and alternative trust arrangements, that can help applicants and disabled family members. see more
Question
Are trusts that have the children as beneficiaries "countable" as an asset by Medicaid in deciding who pays fo...
Your question is general in scope, but you need specific answers. If you have an existing Trust document, you can get specific answers from... Your question is general in scope, but you need specific answers. If you have an existing Trust document, you can get specific answers from an Elder Law Attorney in your state who understands Medicaid regulations.
There are Medicaid regulations that protect people who fund Trusts, and the Beneficiaries who benefit from Trust distributions.
For example: a nursing home resident's transfers to an Irrevocable Trust for a disabled child would not be countable by Medicaid, if a Payback Clause is written into the Trust. You can't be sure of what you have until you consult with an Elder Law Attorney in your state.
If you are planning for the future, an Irrevocable Trust that complies with case law and regulations in your state can be established and funded in advance. As long as you can wait out the Lookback Period (5 years) before applying for Medicaid, the existence of the Trust fund won't affect eligibility.
Whether planning for future eligibility or a current crisis, talking with an Elder Law Attorney will benefit you and your family. see more
There are Medicaid regulations that protect people who fund Trusts, and the Beneficiaries who benefit from Trust distributions.
For example: a nursing home resident's transfers to an Irrevocable Trust for a disabled child would not be countable by Medicaid, if a Payback Clause is written into the Trust. You can't be sure of what you have until you consult with an Elder Law Attorney in your state.
If you are planning for the future, an Irrevocable Trust that complies with case law and regulations in your state can be established and funded in advance. As long as you can wait out the Lookback Period (5 years) before applying for Medicaid, the existence of the Trust fund won't affect eligibility.
Whether planning for future eligibility or a current crisis, talking with an Elder Law Attorney will benefit you and your family. see more
VA death pension vs Aid and Attendance?
Health and safety are first priority in your mind, while your mother may be most focused on finances and making the most of available benefits payments.
Understanding the differences between the VA death pension vs. Aid and Attendance will make you better able to explain the financial facts.
Consider the specifics of your mother's case in the context of:
1) Service-Connected Compensation vs.
2) a non-service connected VA Pension.
A surviving spouse can qualify for Dependency and Indemnity Compensation (DIC) if the veteran's death resulted from a service-related injury or disease. This IS service-connected compensation, and asset limits and transfer penalties DO NOT apply. Here is the summary of DIC compensation, which can include an extra allowance if the surviving spouse is entitled to Aid & Attendance:
https://benefits.va.gov/Compensation/current_rates_dic.asp#BM01
Aid & Attendance is a NON-service connected VA pension which IS subject to asset and transfer rules.
Here is the VA's summary of maximum Aid & Attendance payments:
https://www.benefits.va.gov/pension/current_rates_survivor_pen.asp
Here is an example of how the VA looks at the unreimbursed medical expenses of a surviving spouse to determine the amount of the Aid & Attendance pension:
https://www.benefits.va.gov/pension/spousepencalc.asp
Talk with a Veteran Agent or Elder Law Attorney near you and determine whether room and board at the assisted living can be considered a medical expense in your mother's case.
Compare the amount she receives now in service-connected compensation with the maximum Aid & Attendance pension amount that would be allowed based on her income and total unreimbursed medical expenses.
If the Aid & Attendance pension would produce greater reimbursement, you have a financial talking point to help your mother chose the safer living environment. see more