Elder Law and Long-Term Care Planning
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Elder Law and Long-Term Care Planning



Janis Carney spoke at Los Gatos Recreation Center on Elder Law and Long-Term Care Planning.

Janis Carney spoke at Los Gatos Recreation Center on Elder Law and Long-Term Care Planning.



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Elder Law and Long-Term Care Planning Elder Law and Long-Term Care Planning Presentation Transcript

  • Elder Law and
    Long-Term Care Planning
    Los Gatos Recreation Center
    September 26, 2011
    750 University Avenue
    Suite 140
    Los Gatos, CA 95032
    (408) 354-0200
    Janis Carney, Esq.
  • Janis Carney, Esq.
    Elder Law
    Planning Needs *
    Elder Care Options
    Capacity Issues*
  • Janis Carney, Esq.
    3 Levels of Planning
    Estate Planning *
    Long-term Care Planning *
    Life Care Planning *
  • Janis Carney, Esq.
    Estate Planning
    Trusts- Revocable and Irrevocable
    Durable Power of Attorney
    Advanced Health Care Directives
  • Janis Carney, Esq.
    Trust and Estate Administration
    Vs. Probate
    Distributing Assets
    Creditor claims
    Expense, time, oversight
  • Janis Carney, Esq.
    Long-term Care Planning
    Pre-planning for long-term care involves
    -Legal concerns
    -Financial concerns
    How to Pay
    Asset preservation *
    -Eligibility for Medi-Cal and VA
    benefits *
  • Janis Carney, Esq.
    Veteran Benefits
    Service-Connected Disability Compensation
    Dependent’s Indemnity Compensation *
    Pension for wartime * Vets and their surviving spouses
    Homebound and Aid & Attendance Supplements
    Basic eligibility requirements *
    Maximum Pension benefit amounts *
    Planning Strategies *
  • Janis Carney, Esq.
    Dependent’s Indemnity Compensation
    Surviving Spouse
    married and living with the veteran at least one year immediately prior to death
    $ 1157/mo + A&A &283/mo
    Surviving Dependent Parents or Surrogate Parents
    must be financially in need
    $ depends on need
    Surviving Dependent Children
    “helpless” (disabled from childhood)
    separately eligible or eligible with surviving parent
  • Janis Carney, Esq.
    Veteran died *either:
    • partially because of service connected disability, or
    • 100% service-connected disabled for 10 or more years immediately proceeding death, or
    • While in service
    * Provided the veteran's death was not due to the veteran’s own willful misconduct and was not wrongfully or intentionally caused by the claimant
  • Janis Carney, Esq.
    VA Improved Pension Basic Eligibility Requirements
    1. Veteran served on active duty at least 1 day during a designated “wartime” * period – note: there is NO requirement that the veteran actually served in a combat area or even overseas
    2. Veteran served continuously on active duty at least 90 days unless discharged early due to a service-connected disability. (note: period may be longer if entered service during or after 1981)
    3. Veteran was discharged other than dishonorably
    4. Claimant is aged 65 or over OR permanently and totally disabled not due
    to own willful misconduct
    5. Claimant is financially needy
    [Claimant: Veteran or the surviving spouse or other dependent of a
    deceased veteran]
  • Wartime Periods
    World War I: April 6, 1917 through November 11, 1918, inclusive.
    World War II: December 7, 1941 through December 31, 1946, inclusive.
    Korean Conflict: June 27, 1950 through January 31, 1955, inclusive.
    Vietnam Era: February 28, 1961 through May 7, 1975, inclusive, if the veteran served in Vietnam during that period. Otherwise: August 5, 1964 through May 7, 1975, inclusive.
    Persian Gulf War: August 2, 1990 through a (future) date to be prescribed by Presidential proclamation or law.
    Note: The 1983-1984 Lebanon crisis and the invasions of Grenada and Panama are NOT designated as wartime periods
    Janis Carney, Esq.
  • Pension with Aid & Attendance Maximum Monthly Benefits
    A & A* = Aid & Attendance
  • Janis Carney, Esq.
    Medi-Cal Long Term Care Benefits
    Basic requirements for
    -Eligibility *
    -Share of cost *
    -Recovery *
    Planning Strategies *
  • Janis Carney, Esq.
    Medi-Cal Long Term Care Eligibility
    Applicant aged 65 or over OR permanently and totally disabled
    Applicant requires the level of care of a skilled nursing facility or higher
    Applicant (and spouse, if married) is financially needy
    Countable assets under $2000 for single applicant
    Countable assets under $111,560 ($2000 for applicant +$109,560 for well spouse) for married applicant
  • Janis Carney, Esq.
    Medi-Cal Share of Cost Calculation
    (Co-Payment to Nursing Home)
    1. Applicant income does not include his/her spouse’s income
    2. Income from rental property is net of the following amounts paid from the rental income:
    Mortgage interest
    Property taxes, assessments, and insurance
    Greater of
    actual upkeep and repairs or
    15% of the gross rental income + $4.17
  • Janis Carney, Esq.
    Medi-Cal Share of Cost Calculation
    (Co-Payment to Nursing Home)
    All of the Applicant’s income from all sources other than VA
    Applicant’s medical expenses, such as health insurance premiums
    Spousal and child support payments
    Spousal income allowance: the amount needed to bring the spouse’s income up to the Minimum Monthly Maintenance Needs Allowance (MMMNA) amount, currently $2739/month
    Personal Needs Allowance ($35/month)
  • Janis Carney, Esq.
    Medi-Cal Recovery
    1. Claim by state against assets owned by Medi-Cal recipient if single
    -If single: Due at death
    - If married: Deferred during life of surviving spouse
    -No recovery if recipient has a permanently or totally disabled child of any age at time of state’s claim
    Claim amount is lesser of
    -Amount state paid for recipient on Medi-Cal
    -Value of assets belonging to recipient at time of death
  • Reduce/spend assets
    Convent assets
    Transfer assets (subject to Medi-Cal penalty if with in 30 months if applying for Medi-Cal)
    Annuities (lots of problems)
    Reduce income and increase care costs
    VA and Medi-Cal Planning
    Janis Carney, Esq.
  • Janis Carney, Esq.
    Life Care Planning
    Focusing on quality of life and care
    Coordinating health and personal care with legal and financial needs
    - Applications for Medi-Cal and VA benefits
    - Preserving Assets to afford better care
  • Janis Carney, Esq.
    Capacity Issues
    2 Levels of Capacity
    Contract (Decision Making) Capacity: Ability to understand and appreciate the
    Rights, duties and responsibilities created by or affected by a decision
    Probable consequences for the decision maker and, if appropriate, the person(s) affected by the decision
    The significant risks, benefits, and reasonable alternatives involved in the decision
    Testamentary (Will Making) Capacity to
    Understand the nature of the testamentary act
    Understand and recollect the nature and situation of the individuals property
    Remember and understand the individuals relations to living decedents, spouse, and parents and those whose interests who are affected by the will
  • Janis Carney, Esq.
    When There is No Capacity and Insufficient Legal Documents
    A protective court proceeding for incapacitated adults/children
    Adult/child Protective Service involvement
    Must prove adult-conservatee is deficient in one of four areas
    Alertness and attention
    Information processing
    Thought processes
    Ability to modulate moods and effect
  • Special Needs Planning
    Developmentally Challenged, Mentally Ill,
    Drug Kids and Others On “Public Benefits”
    Limited conservatorship
    Legal & financial issues
    -Planning for eligibility for Medi-Cal, SSI, etc.
    -Authority to act for disabled person
    Janis Carney, Esq.
  • 22
    • Roles
    • Responsibilities
    • Private vs. Professional
    - Family and Friends
    - Corporate fiduciaries
    - California licensed individual fiduciaries
    Janis Carney, Esq.