Walnut Creek Elder Law Blog

I practice Elder Law and represent the older client and their families. When clients come to see me, their concerns are not so much about what happens when they die, but more about ’What happens if they don’t die.’

Of course, they want to make sure that their assets pass to their family with a minimum of expenses and taxes. But the bigger and more complicated question is, “What happens if I don’t die?” As we know, Americans are living longer all the time. The infirmities of old age may require that we have in home care assistance, or go to an assisted living facility, board and care home or eventually a to a nursing home.  We are of course concerned about how we pay for these costs. A regular estate plan does not address these needs. An elder law attorney can prepare a long term care plan for you, and address these needs. He will also address the concern of passing assets to their family.

To put it another way, a regular estate plan insures that if you die, your assets will be passed on to your family the way you want. The operative word is “if”. A  regular estate plan will not help preserve assets so that hopefully there will be something left when you die to pass on to your family. As we know, the assets of the older client could be depleted by a nursing home stay or lengthy illness, which could leave their spouse or heirs with nothing.  

If you have sufficient assets to pay for long-term care or nursing home costs without running out of funds, then a regualr estate planning attorney may be all you need. However, if you cannot afford the cost of a lenghty nursing home stay, of around $90,000 per year or $180,000 per year for a couple, or more, then an elder law attorney would be able to help you.

For a real life example, Mary and Jim have about $300,000 in assets and a home worth around $500,000. Jim needs assistance and uses a wheelchair. Mary has been providing for his care, but recently has shown signs of forgetfulness and confusion. She has been diagnosed by her doctor as having early signs of dementia.   

An estate plan is of course important to Jim and Mary, but this won’t help them deal with the problems they are presently dealing with. They want to tackle the issue of how they will be able to afford the cost of nursing home care should either one or both of them need it. They want to establish how they will be taken care of should Mary’s dementia become more advanced. They want to find out if if they can stay in their home with assistance.

This couple needs a life plan, specific to them, to meet their needs for the future. Jim and Mary need to seek the advice of an elder law attorney.

Written Michael J. Young, 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. Mr. Young advises clients regarding Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning. Mr. Young is a Concord Elder Law Attorney with offices in Walnut Creek, CA.

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.

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. 

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.

When finding a nursing home for your loved one is necessary, it is important to decide what is important for him or her. Things such as location, religious orientation and  access to hobbies should be considered. You should request brochures from several facilities you are interested in, and you should tour several of the the facilities. After you have narrowed your choices, plan on visiting the facilities during business hours, and during off hours. The atmosphere and staff may be quite different, and not what you expected during the off hours.

When you visit the facilities, pay attention to your instincts. Do you feel welcome? Did you have to wait to meet a representative? Did the representative seem genuinely interested in your particular situation? When visiting the facility, do not be afraid to ask as many questions as you can think of. If you are shy about asking questions, bring someone with you to encourage the questions, or they can ask the questions for you. Ask if the facility has survey results you can review, and ask if they have been prohibited from accepting new residents by the state at any time.

You will be under great stress at this time, so it is important that you take a deep breath and understand that there are positive things that you can do for your loved one. Also, do not neglect getting your ducks in a row through the help of an elder law attorney, regarding asset protection, estate planning, public benefits planning and long term care planning for your loved one. 

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.

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.

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.

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

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.

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.

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.

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.

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

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. 

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.

     Medicare is a Federal health insurance program. Social Security funds are used to pay the costs of the program. Individuals who are over the age of 65, and who have made Social Secuirty contributions during their working lives are entitled to benefits. Part A of Medicare pays for hospitalization, hospice and some health care. It also pays for rehabilitation in a nursing home for specific periods of time. Part B is designed to pay for outpatient hospital care and doctors’ visits. Co-payments, deductibles and monthly payments may be required for Part B.  

     If a person is hospitalized for three days under Medicare, and then goes into a skilled nursing facility (SNF), Medicare will pay pay 100% of the bill for up to 20 days in the SNF. After that, for days 21 to 100, Medicare will pay only for 80% of the cost. During this time, the Medicare recipient will be required to make a co-payment, through supplemental insurance or will pay privately.

    After 100 days, there is no Medicare coverage for a SNF. After that time, you must pay privately, pay through your long term insurance policy (if  you have one) , or qualify for Medi-Cal to pay for the SNF. The average stay in a SNF under Medicare is under 24 days. Medicare and Medi-Cal are two different programs, and are not related to each other.

     Planning for Medi-Cal qualification should be made early on, through your elder law attorney. There are qualification requirements with regard to assets, income,  spending down, gifting, and a share of cost which goes to the the nursing home. There are legitimate and legal methods through the Medi-Cal regulations to protect assets and create qualification for Medi-Cal. You may visit our web site at htt://WalnutCreekElderLaw.com, for information on how to plan for and how to qualify for Medi-Cal. The estate planning documents, including the financial durable powers of attorney and revocable living trust are usually updated to include government benefits and asset protection language. If a client loses mental capacity, and this language is not present in the estate planning documents, qualification for government benefits, including Medi-Cal, and asset protection is much more difficult.

 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, who also advises on Medi-Cal qualification, asset protection, nursing homes and the VA Aid & Attendance qualification, serves Contra Costa and Alameda Counties in CA, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

When choosing an assisted living facility for a loved one who suffers from dementia, certain things should be taken into account regarding the facility. More and more assisted living facilities can now accommodate residents with various levels of dementia. Some facilities have separate wings or dementia units. I have visited many assisted living facilities, and have many clients with loved ones in assisted living facilities. In addition, I have made personal observations about the quality of care for persons with dementia in these facilities.

Music: My wife’s mother, who is 89, has advanced Alzheimers disease, and has been in an assisted living facility for a number of years. Although she does not seem to recognize her children, she does respond very positively to music. When music is played for her, or if someone performs or sings for her, her face lights up. She smiles, and tries to sing. I have noticed this for many residents with dementia, when I have played jazz piano for them in various facilities. Also, on researching the subject, it seems that music is processed and understood through a different part of the brain, usually with positive results.   As a result, find out if the facility you are interested in arranges for music to be played or performed for the residents on a regular basis.

Religious Services: Another item to take into account, is whether the facility is consistent with your religious beliefs. If the resident and family are religious, it will be important for them to have the facility provide religious services for their loved one during all phases of dementia. When my father, who was Catholic, was in an assisted living facility,  I know that he cherished receiving communion every week.  

Behavior: Find out whether the facility will be able to accommodate your loved one during all stages of the disease process. Plan for the future, as the disease may progress and become worse. Ask the facility what behaviors would trigger them to say that they can no longer accommodate your loved one. Also, ask how they would handle the behavior of your loved one if he or she becomes aggressive, loud, or acts out. You will find out more if you are very specific.  

 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, who also advises on Medi-Cal qualification, asset protection, nursing homes and the VA Aid & Attendance qualification, serves Contra Costa and Alameda Counties in CA, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

VA BENEFITS MAY COVER THE COST OF AN ASSITED LIVING FACILITY OR IN HOME CARE

www.WalnutCreekElderLaw.com. As we discussed in previous Elder Law Today newsletters, the Veteran’s Administration provides a wonderful pension benefit for those individuals who served at least one day during a period of wartime and are now disabled due to non-service connected reasons (aging related issues,  Alzheimer’s, Parkinson’s, multiple sclerosis, and/or other physical disabilities).  This pension, referred to as “Aid and Attendance Allowance”, may pay  the long term care provided in an assisted living facility, or in-home care.  

The “Aid and Attendance” (A and A) benefit is available to a veteran who is disabled and requires the aid of another person to perform the personal functions required in everyday living.  A veteran can show they are eligible if they have a substantial need for assistance with the activities of daily living.  Such activities include bathing, dressing, meal preparation, etc.  A veteran would also qualify for this pension if they can show they need the attendance of another person in order to avoid the hazards of his or her daily environment.  The need for assistance does not have to be permanent.

 Under this program, a veteran can receive up to  $1,644.00 per month or $19,736 per year in benefits, and a widowed spouse can receive up to $1,056.00 per month of $12,681 per year in benefits.  The applicant must be “permanently and totally disabled” under the VA rules.

The vet does not need to be helpless under the rules. He only needs to show that he is in need of aid and attendance on a regular basis. Someone who is housebound or in an assisted living facility and over the age of 65 is presumed by the Veterans Administration to be in need of Aid and Attendance.

Eligibility for the program is based on the income and assets of the veteran. In determining income, deductions are allowed for unreimbursed medical expenses (UMEs). In home care workers are an allowable deduction, provided that some medical or nursing services are provided. Also, the cost of an assisted living facility, or a portion thereof, can be an allowable medical deduction against gross income. 

 In addition, a family member can provide in-home care for a veteran who is applying for aid and attendance.  In order to meet the disability criteria, the care services provided by an unlicensed relative must be prescribed by a health care professional (ex. doctor, RN, LPN or licensed physical therapist) and the professional must consult with the unlicensed relative caregiver at least once a month (in person or by telephone) to monitor the regimen.  In addition, there must be a valid care contract in place and the caregiver must be receiving no more than fair market value for services he or she is providing.

If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

 CAVEAT: When planning for this VA benefit, you should also plan for Medi-Cal benefits and coordinate all of this with your elder law estate plan at the same time. An elder law estate planning attorney, who is also accredited by the VA, is best equipped to help you with this planning. When seeking help for this VA benefit, always ask if the person helping you is accredited by the VA.  

 The following are some additional requirements for eligibility:

 a. Be a veteran who served at least 90 days of active duty.

b. At least one day of active duty had to be during wartime: WWII – 12/7/41 to 7/25/47 – Korea – 6/27/50 to 12/31/55 – Vietnam – 8/5/64 to 5/7/75;

c. Does not need to have been in combat;

d. Discharged other than dishonorably;

e. Income less than $1,644 per month, once out-of-pocket medical expenses are considered.

f. Net worth less than approximately $50,000 for singles or $80,000 for couples.

g. Gifting of assets is allowed with no look-back period, but must be coordinated with Medi-Cal planning and gifting, which does have a look-back period.

 If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

Elder Law Today is written by Michael J. Young, Attorney at Law, 1931 San Miguel Dr., Ste. 220,  Walnut Creek, CA 94596. This information is for general informational purposes only, and does not constitute legal advice. For specific questions, you should consult a qualified attorney. MIKE@WALNUTCREEKELDERLAW.COM

For additional information, such as upcoming seminars, past newsletters, and to listen to an interview with attorney Michael J. Young, visit  www.WalnutCreekElderLaw.com.

Office: (925)-256-0298

UPCOMING SEMINARS BY ELDER LAW ATTORNEY MICHAEL J. YOUNG:

Dates: Fridays, January 8 and 22, from 2:00 to 3:30 p.m. at the Law Offices of Michael J. Young, in the Channell Room. For reservations call 925-256-0298.