The Legal Checkup Blog
Yesterday was such a crisp fall day - a perfect day for a long bike ride. I set off from my Hingham home, and made my way through Cohasset, Scituate, and Hull. This course is my favorite as it combines some of the most breathtaking views with the challenges of the road (both the traffic and the hills!). The ocean views along Jerusalem Road, Cohasset Harbor, and Gunrock Beach always make me forget how hard I'm working.
The hues of the changing leaves along the way were not yet at peak, but breathtaking nonetheless. There is one large field along the road from Scituate to Cohasset where I had to stop to take in the beauty of a doe and her two fawns. They were probably only 20 feet away from the street, which was quite exciting to me as the only other times I have seen deer up close is when they have darted in front of my car! The fawns were too busy eating to notice, but the doe never took her eyes off me. She was beautiful and magestic, but she stared me down as if to let me know that those were her "children" and I had better not try to harm them. The doe was like any other mother - guiding and protecting her young.
A little farther into my ride I came to a series of long and challenging hills. Just as I was huffing and puffing and pedaling as hard as I could, I felt someone's hand touch the right side of my back. I was startled and quickly turned my head around to see who it was.
There was nobody there. But, how could that be? The pressure of the hand on my back was unmistakable... My mind raced as I tried to explain this to myself. Could it have been a falling leaf? A branch? Did I imagine it?
No. A couple of miles and much self-debate later, I knew in my heart that it was a sign; it was my mother. Now, you may or may not believe in signs from those who have passed before us, but I am a firm believer. This is, after all, not the first time that I have had a sign from my parents. This is, however, definitely the most distinct. The feeling of that hand on my shoulder, helping me over the hill, was just too distinct to ignore. Even though my mother has passed, I know that she is still with me, guiding and protecting me like the doe with her fawns.
So tell me, what is your sign? Have you had such an experience with a sign from a loved one who has passed? Please share your experience!
Most seniors I speak with feel that they have worked hard their entire lives, and that they should not have to spend all of their hard-earned assets on nursing home care. They would like to pass some assets on to their children or grandchildren.
The problem with this, however, is that without proper guidance and advocacy, many seniors are often rushed into an Asset Protection plan that “protects the assets from the nursing home" and "protecs the assets for their children or grandchildren" ... and leaves the senior unprotected and vulnerable. They fall victim to the many misleading ads in print on the radio that make false claims about asset protection, use scare tactics that are simply unconscionable, or offer deep discounts to sign up "today only." No attorney worth dealing with is going to use any of these tactics to get your business. Let me explain.
There are THREE FUNDAMENTAL RULES that you must understand about ASSET PROTECTION ...
1) You have not “protected” an asset until you have given it away, either to a person or a trust, with no legal right to change your mind and take the gift back in the future.
2) There is a five-year lookback period, which means that MassHealth can look at all of your financial statements going back five years, and they will impose a penalty for any gifts you made during that five years. So, the assets are not fully protected until FIVE YEARS after you give them away.
3) You could unintentionally be forced to a nursing home if you run out of funds to pay for continued care in your home. If you “protect” assets by giving them away and getting through the five-year lookback period as outlined above, you will have no legal right to get the assets back and you may be left "unprotected" and unable to pay for the care you need to remain in your home.
Certainly it is not any senior's intent to end up having to move to a nursing home because they "protected" their assets years earlier ... but it happens. Part of the problem, in my opinion, is the prevalence of misleading ads that serve to scare and confuse seniors.
BEWARE of legal ads that encourage you to “Protect your Assets” while leading you to believe you are protecting yourself in the process … this is one example of an ad that I find to be very misleading, if not absolutely FALSE.
Learn about Asset Protection Trusts that:
1) allow you to control your assets until death;
2) allow you to retain all income from your assets
3) enable you to protect your assets from the nursing home
4) ensure you qualify for Medicaid in the shortest period of time
Let’s look back at the Fundamental Rules of Asset Protection.
Number 1 is FALSE because, while you may serve as trustee of the asset protection trust, it is not YOUR assets that you are controlling ... you gave the assets to someone else in order to "protect" them!
Number 2 is FALSE because, while you can retain the right to the income generated by the assets in an asset protection trust, the assets in the trust are no longer YOUR assets! You gave the assets to someone else in order to "protect" them!
Number 3 is TRUE and FALSE - True because after five years the assets will be protected from the cost of your nursing home care, but FALSE because, once again, they are not YOUR assets any more -- you gave them to someone else in order to "protect" them.
Number 4 is FALSE because there is a 5 year lookback. Assets transferred to an asset protection trust will not be fully protected until 5 years after they are transferred to the trust, and there is no attorney who can make you eligible with this strategy in less than 5 years. In fact, there may be ways to make you eligible sooner based on your specific situation, but not with an asset protection trust.
Some asset protection strategies may be appropriate for you, but only if you can ensure your own future security in the process. This is why a comprehensive assessment of your specific family situation, health and care needs, income and assets, and goals is critical to a successful Long-Term Care Plan. A Legal Check Up will enable you to fully understand the risks and benefits and pros and cons of asset protection strategies, and will enable you to make an informed decision based on your specific situation.
Remember, if a radio or print ad seems too good to be true, it probably is. And, if an attorney offers a discount on the cost of an asset protection plan, but the price is good "today only ..." RUN, don't walk, to another elder law attorney. These pressure and scare tactics are not appropriate and, frankly, offensive to most elder law attorneys. Your future security must be treated with the importance and thoughtful deliberation it deserves, by you and your attorney.
Call us today at 781-681-6638 to schedule a Legal Check Up or to get a schedule of upcoming seminars, or get more information at www.thelegalcheckup.com.
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Medicare, Community Care, Elder Financial Abuse, family, loved ones, priorities, Medicaid, Medicaid Home Care
The Massachusetts Bar Association invites you to participate in Court Advocacy Day on Monday, March 19 at the Grand Staircase inside the State House. Beginning at 11 a.m., the event will help reiterate the need for adequate funding to sustain the critical needs of the Massachusetts Court System. The event will open with a brief speaking program, after which attendees will be encouraged to meet with their local legislators.
The event will include speaking remarks from:
•Supreme Judicial Court Chief Justice Roderick L. Ireland;
•Chief Justice for Administration and Management Robert A. Mulligan;
•MBA President Richard P. Campbell; and
•Boston Bar Association President Lisa Goodheart
The MBA would appreciate your signing up in advance at http://www.massbar.org/cle/cle-programs?p=2709
You can sign up in advance to meet with your legislators, or just drop by their offices. The MBA will provide informational packets at the event that include fact sheets on court funding that you can leave with your legislators.
For your convenience, you can find the list of Senators at:
and the list of Representatives at:
Deb Thomson and some members of the MassNAELA Board of Directors will be at the event to offer guidance to MassNAELA members in attendance. We hope to see many of you there to support funding for the Massachusetts courts!
Follow this link to a video and other resources to learn more about the judicial system's response to the underfunding crisis.
Hot off the press from the State House News Service:
The Patrick administration has struck a $26.75 billion deal with the Obama administration that the governor says will set the stage for a "new round of innovations" in Massachusetts's health care system and that federal officials say will serve as a precursor to sweeping changes in the way health care is delivered in the Bay State.
The deal, a three-year Medicaid pact authorized by the U.S. Department of Health and Human Services, represents a $5.69 billion, 26.2 percent increase over the last three-year deal, which was approved by the administration of President George W. Bush in 2008. The last waiver deal, a three-year pact approved in 2008 by the Bush administration, was valued at about $21.2 billion and hailed as a victory for state health programs by Gov. Deval Patrick and U.S. Sen. Edward Kennedy.
The new deal was reached last week when Patrick met with U.S. Secretary of Health and Human Services Kathleen Sebelius in Washington D.C., and details were finalized in the days since the meeting, according to an administration official.
MassHealth, the state's Medicaid program, provides 1.3 million low-income or disabled Massachusetts residents with subsidized coverage and has been a major part of the state's efforts to provide near-universal coverage.
Under the terms of the deal, also known as a Medicaid waiver, safety net hospitals in Massachusetts - including Boston Medical Center and Cambridge Health Alliance - will be required to make major changes to the way they deliver health care in order to access a $120-million-a-year pot of funds. The changes include moving away from a health care system that pays doctors based on the volume of tests they perform, rather than the health outcomes for their patients.
Gov. Patrick has pressed lawmakers to act on a bill that would make this shift the norm in the Massachusetts health care industry, but the Legislature has deferred action until next year.
Under the waiver, Massachusetts will establish a pilot program aimed at expanding coverage for pediatric asthma services. This provision of the waiver closely mirrors a Medicaid program adopted in a state budget 18 months ago aimed at preventing unnecessary hospital admissions for pediatric asthma patients. The state will also "streamline eligibility procedures" for about 140,000 parents with children who receive food stamps, and the waiver also covers expanded "early intervention" services for children with developmental delays and disabilities.
Massachusetts officials also withdrew a number of requests, according to the federal Centers for Medicare and Medicaid Services, which sent a letter to Patrick administration health and human services chief JudyAnn Bigby. The withdrawn proposals include integrated care for residents eligible for both Medicare and Medicaid, which the Patrick administration plans to tackle independently.
The administration had also requested the ability to increase pharmacy co-pays "above allowable State plan levels" and to institute a co-pay for non-emergency medical transportation," according to the letter. The Medicaid waiver, a critical element of Massachusetts health care financing scheme, was due to be finalized in July, but negotiators sought a series of one-month extensions, unable to reach agreement as news of major pressure to cut federal spending dominated the dialogue in Washington.
Proponents of the deal said it would preserve the state's health care programs established in 2006, when Gov. Mitt Romney signed a health care law intended to guarantee access to insurance for nearly all Massachusetts residents. Since the law was signed, about 411,000 previously uninsured residents obtained health care coverage, and the Patrick administration estimates that 98 percent of all residents are insured. The cornerstone of that legislation, a health insurance exchange called Commonwealth Care, served as a model for exchanges included as part of the federal Affordable Care Act signed by President Obama nearly two years ago. Commonwealth Care helps enroll low-income residents in heavily subsidized private insurance plans. Commonwealth Care and a separate program that covers care for a diminishing pool of uninsured residents will receive $500 million a year, under the new waiver deal.
The Patrick administration has also committed to implementing all provisions of the Affordable Care Act by Jan. 1, 2014, when most major provisions of the federal law take effect. The waiver may carry some political significance heading into a presidential year, as Romney campaigns for the Republican nomination to take on President Obama. Romney has repeatedly been forced to defend the health care law he signed as an affordable plan that works for Massachusetts. But critics say the state's programs survive because of a broad lifeline provided by the federal government, a critique unlikely to be quelled by the major increase in Medicaid funding announced Tuesday.
Tags: PACE, home care, long-term care, elder law, Legal Check Up, Estate Planning, Medicare, termination of benefits, skilled services, federal law, Community Care, priorities, nursing home, rights, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Medicaid Home Care, Personal Care Assistance Program
Those of you whom I have had the pleasure of meeting are probably aware that I lost both of my parents recently, just six months apart. While my mother’s health had declined over the years, with at least annual hospitalizations for pneumonia and related issues, her death was sudden and unexpected.