Walnut Creek Elder Law Blog » ca

Life Expectancy and VA Aid & Attendance

mike — Fri, 16 Sep 2011 18:10:25 +0000

The VA Aid and Attendance Improved Pension Benefit can help pay for the costs of in home care, assistant living facilities and board and care homes for the older wartime veteran. A single veteran can receive up to $1,644 per month, or $19,736 per year. A widowed Spouse can receive up to $1,056 per month or $12,681 per year. This pension benefit is considered non service connected, meaning that you do not have to be suffering from a wartime injury to obtain the benefit.

This VA program is needs based, and your elder law attorney can help you qualify and apply for this VA benfit. When we plan for Aid & Attendance, we also plan for Medi-Cal qualification at the same time. The Medi-Cal qualification rules regarding gifting and transfer penalties must be taken into account when you plan for Aid & Attendance. If you do not do so, you may become qualified for Aid & Attendance, but disqualified for Medi-Cal. Medi-Cal pays for nursing home costs, which can run $7500 per month or more in Contra Costa County.

As part of the Aid & Attendance Improved Pension Benefit qualification, the VA now considers the veteran’s life expectancy in determining how much a claimant can retain in assets. If the veteran has over $50,000 in assets, not including the home, you may want to pursue transfers of assets and asset protection, and coordinate any such transfers with Medi-Cal transfer regulations. You should not transfer assets without the help of your elder law attorney, who is also certified by the VA.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for your particular situation.

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

Elder Abuse – Criminal and Civil – Red Flags

mike — Wed, 14 Sep 2011 20:27:12 +0000

In California, civil and criminal Elder Abuse Laws pertain to persons 65 years of age or older. Under the criminal statutes, elder abuse can occur when someone causes the elder to suffer mentally or physically. Under the civil statutes, abuse can mean neglect, causing financial abuse, abandonment, and physical harm or mental suffering. In addition, under the civil statutes, elder abuse can mean deprivation of care by the custodian of goods or services that the elder needs to avoid mental suffering or pain.

There are red flags to be on the outlook for regarding possible elder abuse, which many of us have seen. One red flag could be that the older person is not given the opportunity to speak for herself. Another red flag could be that the care giver or family member expresses anger toward the elder. A painful red flag is the isolation socially, of the older person. If you see signs of elder abuse, you should report it.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for your particular situation.

Alzheimer’s Planning – Long Term Relationship

mike — Tue, 13 Sep 2011 21:20:22 +0000

We do Alzheimer’s planning in our lawfirm. This type of long term care planning includes, in part, the preparation of estate planning documents. These specialized documents contain required, updated language for asset protection and government benefits planning regarding Medi-Cal and the VA Aid and Attendance Improved Pension Benefit. Part of the planning may also include asset protection of the home and monetary assets.

However, a big part of Alzheimer’s planning involves working with the family of the loved one who is afflicted with this disease. Alzheimer’s disease can last many years, and our relationship with the families we represent can be very long. As an example, my mother in law, who has Alzheimer’s disease, and who turns 90 next month, has been in a board and care facility for the last 10 years. Other than the disease, she is fairly healthy for a 90 year old. She does not recognize her three “girls”, but she is being well cared for.

Currently, there is no cure for Alzheimer’s, but there are treatments and services that will make life more bearable for the Alzheimer’s patient, and his or her family. We offer support for our clients and their families, regarding resources for care as part of the long term care planning. We also encourage our clients and their families to become knowledgeable about the disease. For additional information regarding Alzheimer’s planning, please feel free to contact our office.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for your particular situation.

VA Aid & Attendance Pension Benefits w/o The Sale of Annuities

mike — Tue, 19 Jul 2011 16:24:36 +0000

The VA Aid & Attendance Pension Benefit is available for wartime veterans or their surviving spouses. For 2011, a single veteran can receive up to $1,644 per month, and $1,949 if married. The widowed spouse can receive up to $1,056 per month. This benefit is most helpful for payment of in home care, assisted living facility and board and care costs.

For qualification, the VA takes into account, among other things, income and assets. If the applicant’s income and assets are too high, he may not qualify. That is where planning by your elder law attorney, who is certified by the VA, comes in. In addition, when we plan for the VA Aid & Attendance Pension Benefit, we also plan for Medi-Cal benefits at the same time. Medi-Cal pays for nursing home costs after your Medicare days are used up. Nursing homes in our area can cost upwards of $7,500 or more per month. If you plan for VA alone, without taking into account the more stringent Medi-Cal rules at the same time, you may become eligible for VA but ineligible for Medi-Cal.

Beware of being asked to purchase an annuity to qualify for VA. We have been informed by clients and others that there are annuity salesmen out there, who are also usually not certified by the VA, who will ask you to purchase an annuity for VA qualification. I understand that they usually do not tell you about the annuity at first. The purpose for the sale of an annuity, from a legal perspective, is at best unclear, and is generally viewed by the elder law legal community as unnecessary. Your elder law attorney can best help you with asset protection and planning, within the Medi-Cal and VA regulations, without the sale of annuities. Medi-Cal also has stringent requirements about annuities, which could make the Medi-Cal applicant either ineligible for Medi-Cal, or require him to pay more than necessary in the share of cost, which money goes from the applicant to the nursing home. We receive calls from individuals, and their families, who are quite angry that they have purchased an annuity for VA qualification, angry that they do not understand what the purpose of the annuity was, and would like to know how to reverse the process. Your elder law attorney, who is certified by the VA, can best help you with long term care planning, asset protection, VA and Medi-Cal qualification, and estate planning at the same time, legitimately and within the regulations.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for professional advice.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney, who is certified by the VA, for professional advice.

Swimming With Grandchildren Without A Pool!

mike — Mon, 11 Jul 2011 16:58:42 +0000

I can’t help myself talking about our grandkids, at least one more time. My wife and I have two grandchildren, a boy 4 and a girl 2 ½. Both kids “stayed over” a couple of weekends ago. They arrived on Saturday morning with their little suitcases packed, which included their swimsuits. They wanted to swim with us in our community pool, but that plan was thwarted when we found out the pool pump was broken.

We felt horrible, and did not have a little pool for them. What we did have was a large plastic storage container, which held about 20 gallons of water. We also had large and small “Super Soaker” squirt guns, and Grandma had all sizes of plastic measuring cups. The kids put their swim suits on, filled the storage container with water, and climbed inside the container! They played with the hose, the squirt guns and the measuring cups for hours. Every once in awhile they would climb out of the container and lie on their towels in the sun to dry off. When they were dry they would climb back into the container and have more fun! I guess we don’t really need a pool, but I am off to Target to find something for them to use at our house.

There is probably no legal point to all of this, (other than to include your grandchildren in your estate plans) but I just had to share with you how fun it is being grandparents!

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for professional advice.

My Grandchildren are Too Cute!

mike — Wed, 06 Jul 2011 17:16:37 +0000

When I was younger and people started to talk about their grandchildren, I would practically plug my ears. Now that we have two grandchildren, ages 4 and 2, I am the one who can’t stop talking about them.

So, since I can’t stop myself, I must tell you a story about my granddaughter, Edie. She will be 3 this coming September. Grandma and I were watching both grandchildren a few weekends ago, and Edie was on my lap. I was opening a package that came in the mail, and when I opened the package, bubble wrap came out. My granddaughter said to me, “BaPa, cut a small piece for me.” So I cut a small piece for her and said, “Like this?” She said, “Yes, not pop it! Pop it! Pop It!” I started to pop the little bubbles for her, and she couldn’t stop laughing. It made me laugh that she was laughting, and I was also laughing at how this little girl could give me orders which I would immediately comply with.

I felt like my life was made at that moment. My granddaughter and I were both happy and laughing. I was also astonished that this little girl at age 2 1/2 would know about these things and could tell me what to do like that! I just can’t imagine that other grandchildren are that smart. (ha ha)

I hope you didn’t plug your ears. Thank you, BaPa, Mike Young.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for professional advice.

Protecting Senior Finances With Estate Planning

mike — Mon, 27 Jun 2011 22:11:16 +0000

It is highly recommended for the older person, that their estate planning documents be put in place as early as possible, in order to help guard against elder financial abuse. It is when the older person begins to show signs of a loss of mental capacity, that financial predators step in to take advantage of the older person. We have been seeing more and more of this lately, possibly because of a downturn in the economy.

Older persons should consider preparing their estate plans right away, especially for instance, if there are beginning signs of dementia, a diagnosis of Parkinson’s disease or cancer, or if the older person has fallen. You will be able to pick who you know and trust as your health care agent and agent under your financial durable power of attorney while you still have good mental capacity.

If you are uncomfortable with appointing family members for these rolls, consider appointing a professional fiduciary. California has a rigid licensing program for professional fiduciaries, and they can be used in these positions in order to avoid financial abuse. Professionial fiduciaries are able to assist early on with bill paying and money management.

Unfortunately, the highest percentage of financial abuse and exploitation of the older person, involves the elder’s family members. Many times it is a child who has been dependent for support on the older parent. This child is usually unemployable, in financial straights, won’t work and many times has substance abuse problems. Many times they will badger their parent into giving them money. The parent gives in, just to get them off of his or her back. I have seen children who are completely exasperated that their parents are living so long! The children want their inheritance now, and don’t see why they should have to wait!

Other signs of elder financial abuse can include large bank withdrawals that the older person cannot explain, or a new friend or housekeeper gaining access to bank accounts. Another sign of problems is that bills are not being paid.

When the estate planning documents are being prepared, also consider asset protection and government benefits planning language to be included in the various documents. If the older person loses capacity, the asset protection plan can still be implemented.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for professional advice.

Where’s Your Cane Dad?

mike — Mon, 21 Mar 2011 22:37:48 +0000

When my elderly father would come to visit me, I would ask, “Where’s your cane Dad?” He would say that he didn’t need it, and that he was trying to build up his strength. He needed to use his cane though, because he would hang onto me or my brother, or hang onto whatever was close to him, like a lampost, etc. One evening on a weeknight at about 3:00 a.m., my father called me to tell me that he had fallen. It was bad, in that he cut his head, and we had to take him to the emergency room. He was badly shaken, and it took a long time for him to recuperate.

Injuries from falls from older people is a real concern. Statistics show that once an older person has fallen, they are likely to fall again, unless precautions are taken. Injuries are the fifth leading cause of death among older people, and 80% of those injuries are the result of falling. For older women, falls can more often cause bone fractures because of osteoporosis. My older clients remind me of my parents, and I encourage them to use their canes or walkers.

We often receive calls from the loved ones of older persons who have fallen. Many times it is a wake up call to get things in order, such as wills, trusts and other estate planning documents. The concern for planning for long term care for the older client becomes more critical.

Don’t Wait Too Long To Update Trust & Fin. DPA

mike — Mon, 14 Mar 2011 16:52:43 +0000

Most (perhaps 99%) of all revocable living trusts and financial durable powers of attorney are defective for asset protection and government benefits planning, when incapacity occurs.

For the older client, we become focused on how we will pay for in-home care, board-and-care, assisted living facilities and skilled nursing home costs. We are concerned about how to make our assets last longer for our own care. We want to protect assets, and we would like to hopefully leave something to our loved ones.

We become concerned with how to qualify for and utilize Medi-Cal and VA benefits for our care.

The standard language in the revocable living trust and financial durable powers of attorney do not allow for asset protection, protection of the home from a Medi-Cal lien, transfers of assets between spouses (including the home), transfers to children or to other trusts for government benefits planning, if incapacity occurs.

Updating the revocable living trust and financial powers of attorney before incapacity occurs is good planning.

What Happens If You Don’t Die?

mike — Mon, 07 Mar 2011 19:38:57 +0000

Most estate planning documents are prepared for what happens when we die. They are not prepared for what happens if we don’t die. With regard to the trust, if one spouse dies, for instance, everything goes to the other spouse. When the second spouse dies, everything goes to the children. During the lives of the spouses, all assets stay in the trust. If any gifting is allowed, it is not to exceed $13,000 per year per child. If there is no trust, the financial durable power of attorney will usually not provide for any gifting or asset protection.

But what if we want to do Medi-Cal or VA Aid & Attendance Benefit planning, and the makers of the trust or the makers of the financial durable powers of attorney have lost their mental capacities. For this planning, we at times will transfer assets, including the home, from the ill spouse to the well spouse. We might also make transfers of various assets from parents to the children or to other loved ones. The language to do this type of planning, 99% of the time, is not included in the typical estate planning documents. If the makers of the documents have lost their mental capacities, we cannot do this planning, and may have to go to court to reform the documents. As a result, long term care planning should include updating the estate planning documents to include government planning and asset protection language.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.