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Q:
What is Medicaid planning and asset protection?
A: Medicaid is
the single largest payer for nursing home care in the
United States. Medicaid is a joint federal and state
program. In Colorado, through the Home and Community
Based Services Program, qualified applicants who do not
require nursing home services can receive coverage for
assisted living facilities, prescription drugs or
in-home visits.
Medicaid is a needs based program available to those
meeting certain asset and income tests. Generally an
individual’s assets may not exceed $2,000 and his or her
income cannot exceed approximately $1,500 per month. However,
certain assets and certain income may be exempt or
non-countable for purposes of Medicaid. Proper planning
may permit the conversion of non-exempt assets to exempt
assets. In many cases, proper planning may save the
family home. In addition, an individual is permitted
under the Medicaid rules to gift assets to family
members and wait for a “penalty period” before
qualifying for Medicaid. Federal legislation also
provides protections for a spouse living in the
community when the other spouse must enter a nursing
home facility. Certain levels of assets and income are
protected and an elder law attorney may be able to
increase these amounts through planning or advocacy.
The Medicaid rules for eligibility and asset transfers
are complex. As an elder lawyer, I have helped families
establish the best plan for preserving assets while
qualifying for the care they need for a loved one.
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Q:
Will Medicaid make my kids responsible for the cost of
my care?
A:
No, Medicaid is determined based upon your own assets
and income and your children will not be responsible to
reimburse Medicaid costs.
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Q:
Will Medicaid
cover any facility?
A: A facility must
choose to accept Medicaid. Many private assisted living
and skilled nursing facilities (nursing homes) do accept
Medicaid. Where a current medical condition exists, many
families elect to research the availability and
locations of facilities before the need becomes acute in
a crisis situation. I can help you with resources in
such a search.
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Q:
What is
Medicaid asset recovery?
A:
Colorado Medicaid is required to seek recovery or
reimbursement of Medicaid costs from the estate of a
deceased Medicaid beneficiary. An elder law attorney can
help assure that recovery is made by the State only to
the extent legal and proper.
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Q:
Does
Medicare cover nursing home costs?
A: Medicare is a federal program providing health
care coverage for seniors and the disabled. Medicare
covers some of the cost of nursing home care for up to
100 days immediately after a period of hospitalization.
Many people have experienced problems in obtaining the
full days of coverage to which they are legally
entitled. I have assisted clients in getting proper
coverage or appealing from denials of coverage.
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Q:
Can you help me with a Medicaid application?
A: Yes, we assist clients in the preparation of
Medicaid applications to increase the chance to prompt
qualification. This is generally done for a fixed fee
amount.
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Q:
What is a Will?
A: A will designates the
beneficiaries you wish to receive your property at
death. The will also chooses a personal representative
to manage your estate, pay off debts, work with an
estate attorney through probate and distribute assets in
accordance with your wishes.
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Q:
Do I need a will?
A: Many people like to
have a will to assure their wishes are carried out for
their property after their death. Some particular
circumstances to consider include:
I. You have minor children – you can appoint guardians
for your minor children, provide for a trust for
property that would go to them and trustees to manage
the property,
II. You and your spouse have no children together –
without a will, the law may provide an interest in
property for your parents or children of a first
marriage. It may be better to have a will and
specifically provide what property, if any, you want to
go to parents or children from a first marriage.
III. You are part of a mixed family, with children and
stepchildren from different marriages - Without a will,
the law may provide for different distributions of
property than you would want, for example, leaving out
stepchildren. A will might also avoid potential conflict
among family members over the distribution of specific
items of property.
IV. You want something other than an equal distribution
among your heirs.
V. You have a child who has trouble handling money and
you would like to create some protections for an
inheritance.
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Q:
What is a Trust?
A: There are many types of
trusts which may be useful in different circumstances. A
trust is a separate legal entity which is established by
a trust agreement. The assets placed into the trust are
known as the corpus of the trust. The person with the
legal right to manage these assets is the trustee. Some
examples of trusts are:
The bypass trust
is
established to preserve the marital exemption from the
estate tax when one spouse dies. Rather than have all of
the property end up with the surviving spouse and
increase the size of his or her estate to the point
where estate taxed must be paid, the assets are placed
into a trust, which will be available to the surviving
spouse and will later pass to the beneficiaries outside
the surviving spouse’s estate.
The living trust is a trust you establish to hold
your assets while you are alive. In a living trust, you
also designate a trustee to manage the assets in the
trust if you become disabled or die. Living trusts are
most commonly used to avoid probate. Since the probate
process in Colorado is generally not particularly time
consuming or expensive, its use should be carefully
considered. The bottom line is you should be careful
that you only create a living trust if it is truly
advantageous in your particular circumstances. Finally,
a living trust may make it more difficult to qualify for
Medicaid, if that should become necessary. If there is a
known medical situation, be sure to consult an attorney
knowledgeable in Medicaid qualification and planning,
before you spend the money to set up a living trust.
A life insurance trust provides a way to keep
life insurance proceeds our of your estate. This may be
crucial to avoid the payment of estate taxes.
A crummy trust is a specific type of trust used
to make gifts of assets to children. The crummy trust is
structured to assure a current gift is made for purposes
of removing the assets from your estate, while keeping
the assets in trust for a child until an age (or in part
at various ages) as you deem appropriate. The crummy
trust creates a present interest by giving the child the
right to withdraw each gift to the trust for a period of
30 days. Once the withdrawal right lapses the money
remains in the trust until distribution in accordance
with the terms of the trust.
A special needs trust can be established if a child or
family member is disabled, but is going to receive
assets, for example form an inheritance or a personal
injury recovery.
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Q:
What is Disability
Planning?
A:
A special needs trust can be established if a child
or family member is disabled, but is going to receive
assets, for example form an inheritance or a personal
injury recovery. The special needs trust receives the
assets and the trustee expends them on the disabled
person’s needs, and the right to receive public benefits
is preserved. There are two basic kinds of special needs
trusts, the pooled trust or the individual disability
trust. The pooled trust in Colorado is operated by a
non-profit corporation and you can have a trust account
within the pool. The funds are managed and disbursed by
professional fiduciaries and on death funds are
forfeited to the pool The individual disability trust is
generally established by a family member or a court and
a family member or friend is generally the trustee.
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Q:
What is a Guardianship?
A:
A guardianship is
established over a person by a court if a person is not
competent to make decisions for themselves with respect
to matters other than finances, such as health care,
where to live and what services to receive.
I am well versed in the laws and procedures pertaining
to guardianships. I can help establish the guardianship
for a family member or advise a fiduciary on
administration or decisions. In contested cases, I can
go to court to assure the appointment is needed and that
the proper persons are chosen as guardian or
conservator. I can also work to implement Colorado law
which favors limited guardianship where possible
preserving such rights or decisions for the protected or
incapacitated person where possible.
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Q:
What is a
Conservatorship?
A: A conservatorship is
established over the assets of a person by a court where
the person is not competent to manage their property. An
individual can have a conservatorship over their assets
without a guardianship over their person.
I am well versed in the laws and procedures pertaining
to guardianships and conservatorships. I can help
establish the conservatorship for a family member or
advise a fiduciary on administration or decisions. In
contested cases, I can go to court to assure the
appointment is needed and that the proper persons are
chosen as conservator.
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Q:
What is an
Advance Directive?
A: An advance directive is a legal document
by which you seek to provide guidance for how you want
health care decisions made in the event you are unable
to make them yourself. The primary advance
directives in Colorado are:
The Medical Durable Power of Attorney is a power of
attorney granting an agent the ability to make health
care decisions for someone in the event they are unable
to make such decisions. This is a very flexible document
in which the person can grant certain powers and reserve
others, thus assuring that the grantor's wishes are
carried out in the case of serious illness or end of
life care. Without a medical durable power of attorney,
the family of a person who is unconscious or otherwise
incompetent to make medical decision, may have to
request court intervention to make health care
decisions.
The Living Will permits the expression of wishes
for a particular circumstance in end of life care. This
generally involves the circumstance in which an
individual has been diagnosed with a terminal illness
and has been unconscious for more than 48 hours. Through
the living will an individual and his or her physician
can issue a do not resuscitate order ("DNR"). This
order instructs that CPR not be used in the event the
patient's heart stops beating.
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Q: What
is Probate?
A: Probate is the court administered procedure for
transferring assets at death. It provides procedures to
appoint the personal representative or administrator of
the estate, determine the heirs, determine the validity
of a will and pay the valid claims of creditors. It also
provides time periods in which creditor claims must be
asserted. Colorado has both an “informal” and a “formal”
procedure for probate of an estate. An informal
proceeding is generally the quickest and least
expensive, as no court hearings are required. A formal
proceeding requires more court involvement to make
determinations, but may be the appropriate route in the
event of contests among beneficiaries or more need for
finality of decisions.
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Q:
Is
probate required if there is no will?
A: Yes. If the estate is of
sufficient size, probate is required to determine the
heirs, pay creditors and distribute the assets.
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Q:
What if
the “estate” is quite small?
A: In circumstances in which probate assets are less
than $50,000 assets can be passed by use of a small
estate affidavit, avoiding the need for probate.
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Q:
If an estate requires probate is the family able to
obtain assets from the estate before the probate is
completed?
A: Yes. Colorado law provides
various allowances which can be made quickly to provide
a spouse or other family members with assets from the
estate for more immediate needs.
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Q:
Can a lawyer help me through the probate process?
A: A lawyer can help through
all steps of the probate process, assuring things go as
quickly and smoothly as possible. Generally the lawyer
will represent the personal representative or
administrator of the estate and his or her fees will be
paid from the assets of the estate. In my practice I
have assisted clients with preparation and processing of
probate documents through the probate process, resolving
conflicting claims of beneficiaries or creditors, as
well as compliance with financial and reporting
requirements.
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