Lowcountry Elder Law & Estate Planning

A few days ago I added a new section to the website. You will see it above in the tabs across the top called "Speaking Engagements".The section lists the places where I will appear to make a presentation on some Elder Law topic.

I try to participate in at least 1-2 speaking engagements per month. The venues can be quite varied. I speak to members of civic groups/clubs (e.g. The Rotary), to nursing home family members, and then to staff, or at assisted living facilities, or a senior center, or a library.  The topics vary with the audience and whatever issues are popular at the time.

Contrary to many other estate planning type seminars offered, I do not try to sell the audience a thing. I do not ask attendees to sign up for a consultation and I do not ask for personal information.  All I do is offer free general legal information about issues that I know seniors have an interest, and I try to present it in an interesting, and sometimes entertaining, way.

If your church group, club, civic organization or health care facility would like to arrange a free presentation, of any length, on a wide variety of topics, please contact me ( use tab above), or my office (943-757-5294) and an engagement can be arranged.

I can't resist linking to. What does it have to do with Elder Law? Probably nothing.

I soon as I read this I thought about our own Sin Sun City, Hilton Head.

Widowers Sex Paradise:  

 On a golf cart? 

For a married couple, the cost of a nursing home care for one of them can rapidly deplete assets that have been saved over a lifetime of careful planning. An entire nest egg can be extinguished.  The Medicaid program, however, will pay for the nursing home costs of disabled spouse when the couple’s joint assets are reduced to a specific level. This level, or amount of protected assets, is known in Medicaid planning parlance as the CSRA. The amount of the CSRA for 2009 is $109,560. (see: http://info.dhhs.state.nc.us/olm/manuals/dma/abd/chg/MA_CN04-09.htm#P34_1689).

Fortunately, two recent decisions by federal courts (one in NJ and one in Pa.) ruled that the purchase of a single premium, irrevocable and non-assignable, immediate annuity is a permissible use of the amount that exceeds the CSRA.

As an example, suppose a married couple, who have not engaged in any advanced planning, have a home and $200,000 in savings. One spouse becomes disabled and is admitted to a nursing home. Assume the nursing home expenses are $5,000 per month. The $200,000 must be spent-down at $5,000 per month until the healthy spouse at home has $109,560 left ( and can also keep the home, it need not be sold). Thus, $90,440 must be spent on nursing home care before Mediciad will kick-in to start paying the bill.                            READ MORE BELOW

Many people familiar with trusts obtain their knowledge from learning how  Revocable Living Trusts helps avoid probate. Avoiding probate is a worthwhile estate planning goal and a trust is a great tool to achieve it.  Another worthwhile goal is the protection of property for disabled children, including minor and adult children. For this goal, the Special Needs Trust is used.      Read More below

On Dec. 23, 2008 federal legislation was passed that changed the rules for required minimum distributions from traditional IRAs and 401(k) plans. Taxpayers over 70 1/2 are normally required to make annual withdrawals ( also know as distributions) from IRA accounts. IRAs are funded with untaxed earnings and, are allowed to grow tax deferred until a person reaches the age of 70 1/2.

NO MINIMUM WITHDRAWAL IS REQUIRED FOR 2009 TAX TEAR.

Folks, don't get too excited about this just because the law was passed before the beginning of tax season. If you didn't take your 2008 required minimum distribution, a tax penalty will be imposed. This law will only impact the 2009 tax year, and the return you file in 2010.

The initial purpose for encouraging use IRA accounts with untaxed  earnings, and allowing the account to grow tax deferred, was to have IRAs supplement other retirement income, NOT as a means of passing untaxed income on to heirs. The account holder is required to take the annual distributions of a certain percentage of the account into their income each year after age 70 1/2 . The rates of withdrawal are related to life expectancy tables. If the withdrawal rules are followed, the IRA is withdrawn before death of the taxpayers. Taxpayers who ignore the annual distribution requirement usually face a penalty in the form of a 50 percent excise tax on the amount they failed to properly take. These rules do not apply to defined benefit pension plans and Roth IRAs.

In May 2008 the CMMS (The Center for Medicare and Medicaid Services) began a pilot program limited to just South Carolina Medicare beneficiaries. The program  allows SC beneficiaries to access their personal health records through the internet.

Sounds like a great program, but are any Medicare beneficiaries using it?

The program is called MyPHRSC and the website for access to it can be found online here.

According to a Government Health IT story " The program gives thousands of Medicare beneficiaries in South Carolina access to a PHR (personal health record- ed.) populated with their hospital and physician claims information. Information on prescription drugs will not be provided, but PHR users can enter information on their prescription and over-the-counter medications."

It would seem that placing an individual Medical records in a central depository could be very helpful to patients and health care providers. For example, I recently met with a client concerning a seperate Medicare issue. He pulled out a stack of medical records that he carries with him to every doctor visit (which were frequent and among various specialists), and now, to his attorney's office. Having those records online, instead of toting them around, seems like a good idea.                                                                    READ MORE BELOW

USA Today and our own local Island Packet newspapers have strories on the results of the latest 5 star ranking system employed by the federal Center for Medicaid and Medicare Services.

Two local nursing homes received top ratings. According to the packet:

"TidePointe's Broad Creek Care Center and the Preston Health Center at the Cypress of Hilton Head Island received five stars. The Seabrook's Fraser Health Center earned four stars. The Life Care Center of Hilton Head had one star."      

Kudos to the unnamed director of a top ranked facility to mention how imperfect this ranking sytem is. The Life Care Center, which received a 1 star rating, is the only home mentioned that accepts MediCAID as a payment source where the the others are primarily private pay for long-term stays. The Medicaid re-imbursement system hinders the Life Care Center in providing all of the same  services as the others. And, as Lt. Governer A. Bauer notes correctly, there is no substitute for a first hand visit to a nursing home before deciding on its acceptability.

Also interesting is how the USA Today story notes that not-for-profit nursing homes generally ranked higher than for-profits across the country.  Not-for profit homes usually accept MediCAID as source of payment and it is often a misconception that MediCAID nursing homes are automatically inferior to private pay homes. 

We all know that our facilities diminish with the aging process. It is a fact of the  process that is difficult to accept. When we realize our senses and motor skills are not what they should be, most accept and adjust. Some do not.

Driving a motor vehicle on a public roadway requires skills to be at a minimal level for personal safety, and the safety of the general public. It is one thing to be stubborn and resist lifestyle adjustments and personal inconveniences. But when aging puts you at risk, as well as innocent others, personal pride must give way.

South Carolina Motor Vehicle Department has a procedure for the general public to use in reporting someone for a re-evaluation of their driving skills. If you have reasonable suspicion that someone you know would be a danger to himself, or to others, due to poor driving skills, a reporting procedure is available to compel that person to be re-examined for driving qualifications.

The specific regulation is located in the S. C. Code of Laws at Title 56, Chapter 1, Article 270, which can be read in full on this page.

Dec. 9, 2008-  Well, I wish my first substantive blogging topic was a little sexier...But I don't write the rules, the State of South Carolina Dept. of Health and Human Services (DHHS) does. And they have some new ones that may result in hardships upon families seeking to qualify for Mediciad to pay for nursing home costs. A Medicaid applicant now needs to, more than ever, make sure all documentation has been gathered and attached to the initial application because the new  DHHS deadlines allow only 10 days to provide missing documents! A Medicaid application is only several pages. But the documents that must be attached to it can be hundreds of pages. An applicant must supply at least 3 years of bank statements for every account owned within the 3 year "look-back" period. You need closing documents if a house sold, income tax returns, sales reciepts for  any and all stock transactions.  It is a paperwork nightmare for the average person. Imagine an adult child caregiver who is unfamilar with mom's finances who must gather all of mom's financial records for the past three years (and mom uses the covered shoebox filing system). READ MORE BELOW

Well, its taken a while to get the Blog and Web site up and running but we finally made it! There is still some work to do but I think it is at a point now where it can be of some use to my practice and to those who stop by to visit. Big thanks to Jamie Gilleland of mysite.com for helping the design and set-up. Jamie lives locally but her web design business brings her all over the country. I'm fortunate to have met her here in lil' ole Bluffton.

There are many articles to write and important things to discuss. So, without further ado, I shall begin my law practice blogging experience........