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Elder Law and Medicaid Planning:. Everything you need to know A 2-Day Practical Course. Long-Term Care Planning:. Types, Costs, and Funding Aubrey Harry Ducker, Jr. Law Offices of Aubrey Harry Ducker, Jr. PLC 2020 Mizell Avenue Winter Park, FL 32792 www.aubreylaw.com 407-645-3297

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Elder law and medicaid planning

Elder Law and Medicaid Planning:

Everything you need to know

A 2-Day Practical Course


Long term care planning

Long-Term Care Planning:

Types, Costs, and Funding

Aubrey Harry Ducker, Jr.

Law Offices of Aubrey Harry Ducker, Jr. PLC

2020 Mizell Avenue

Winter Park, FL 32792

www.aubreylaw.com

407-645-3297

[email protected]


Age family dynamics and projected medical needs

Age, Family Dynamics and Projected Medical Needs

  • Client Age

  • Health

  • Marital Status

  • Heirs

  • Long-term Care Desires

  • Facilities – Home v. ALF/ICP


Client age and health

Client Age and Health

  • 55

  • 65

  • 75

  • 85

  • 95

  • Health:

    • Self sufficient, earning income, fully insured, building assets

    • Retired, using assets

    • Medicare Plan

    • Supplemental Insurance

    • Resource loss


Health concerns

Health concerns:

Immediate Concerns

Long term prognosis

Cost of Care

Level of need


Different needs different resources

Different needs, Different Resources

How to tell?


Marital status why

Marital Status: WHY?

Married

Widowed

Divorced

Remarried

Divorced again

  • What are your concerns for her husband?

  • What are your concerns for his children?

  • Who cares about the former spouse?

  • Seriously?

  • Complications Arise.

Nothing complicates planning so much as:

Multiple Decision Makers


Heirs

Heirs:

  • Natural Heirs

  • Spouse

  • Children

  • Second Spouse?

  • Stepchildren?

  • Adopted Heirs

  • Decision Makers

    • Spouse

    • Children

    • Healthcare Surrogate

    • Power of Attorney

    • Trustee

    • Guardian

    • Investment advisor

    • Doctor

Who decides what you recommend?

Who decides how or whether to follow your advice?


What do you see what are you looking for

What do you see? What are you looking for?

Old Woman?

Young Woman?

What are you looking for when you meet a client?


Levels of care

Levels of Care

  • Home care:

    • Visiting Assistant

    • Short term nurse

    • Live in caregiver

    • Private Duty Nurse

    • Hospice

  • ICP – Institutional Care Program

  • Nursing home

  • Assisted Living Facility

  • Hospice

Care Need and Assets are the driving factors


Long term care

Long Term Care

  • Wants

    • Stay home

    • Die in sleep

    • Pass on assets to heirs

    • Nursing care only if incompetent

  • Needs

    • In-home care plan

    • Assets to support

    • Family support

    • Continued good health

The Client’s desires, may

or may not be doable.


Elder law and medicaid planning

Challenges of Aging in Place

Median national cost of services, 2012

Homemaker: $18/hour

Home health aide: $19/hour

Adult day health care: $61/day

Assisted living: $3,300 per month

Nursing home: $200-$220/day

Source: Genworth Financial 2012 Cost of Care Survey.


Elder law and medicaid planning

Challenges of Aging in Place

*Changing needs—A house that was ideal 30 years ago may now be too difficult to handle alone. Older houses often need a lot of costly

maintenance, improvements, or repairs.

*Safety—A house with cluttered furniture or steep stairs is an accident

waiting to happen. Unsafe neighborhoods may make you afraid to go

shopping or attend social activities.

*Isolation—A trip to the grocery store, pharmacy, or place of worship

can be a problem when you cannot drive. It is easy to feel lonely or

trapped when family and friends are far away.

*Ease of use—If you need a walker or a wheelchair, it helps to have a

bedroom on the first level, grab bars in the bathroom, and ramps for

the entrance of the house.


Medicare advantage plans and long term care insurance

Medicare Advantage Plans and Long Term Care Insurance

  • Medicare Part A: Coverage of inpatient hospital care

  • Medicare Part B: Medical Insurance – Outpatient Care

  • Medicare Part D: Prescription drug plans

  • Long Term Care Insurance:

  • Medicare: 100 Days when transferred from hospital for Rehabilitation

Other Insurance may apply

Other insurance may apply


Insurance

Insurance:

  • Medicare: http://medicare.gov/

  • Compare Nursing homes

  • Medigap: Medicare Supplement

  • State Health Insurance Assistance Program (SHIP)

  • Medicaid: LTC/ICP Programs

  • Agency for Health Care Administration: AHCA http://ahca.myflorida.com

  • Florida Department of Children and Families www.myflfamilies.com

Medicare & You Handbook


Elder law and medicaid planning

  • Medicare.gov

  • The official U.S. Government Site for Medicare

    • Sign up/change plans

    • Your Medicare Costs

    • What Medicare Covers

    • Drug Coverage (Part D)

    • Supplements & Other Insurance

    • Claims & Appeals

    • Manage Your Health

    • Forms, Help, & Resources

    • Is my test, item, or service covered? ______________


Elder law and medicaid planning

  • Medicaid Nursing Facility Provider Information

    • The Department of Children and Families (DCF) district offices staff determines eligibility for Institutional Care Program (ICP) services.

    • To begin the ICP application process, a nursing facility refers the resident to the DCF by completing a Client Referral Notice [199 KB PDF], CF-ES Form 2506A.

    • Providers must use the Client Discharge and Change Notice [187 KB PDF], CF-ES Form 2506, to advise public assistance specialists of the placement status of institutional Medicaid applicants and recipients.

    • Copies of these forms are also available from the Department of Children and Families, Office of Economic Self Sufficiency.


Elder law and medicaid planning

Questions Every Elder Advisor Wants Answered:

Eligibility Standards for SSI-related Programs – July 2014

ICP/HCBS/Hospice/HCDA Individual $ 2,163$ 2,000

ICP/HCBS/Hospice/HCDA Couple $ 4,326 $ 3,000

Spousal Impoverishment

Minimum Monthly Maintenance Needs Allowance (MMMNA)** $1,966

Excess Shelter Standard** $590

Maximum Community Spouse Income Allowance (MMMNA plus excess shelter allowance cannot exceed this figure) $2,931

Community Spouse Asset Allocation Standard $117,240

Home Equity Interest Limit $543,000


Elder law and medicaid planning

A Guide to the

Institutional Care Program

Medical assistance for low income individuals in or entering a Nursing Home

http://www.dcf.state.fl.us/programs/access/docs/icp_brochure.pdf

  • What is Institutional Care Program (ICP)? When Level of Care requires intermediate & skilled care, Medicaid pays for thosequalified for an unlimited time period

  • Who may apply? Individual, Guardian or Designated Representative

  • Main Eligibility requirements:

    • 65 or Disabled,

    • In Need of Facility Services,

    • In participating home,

    • Qualifying Assets/Income


Elder law and medicaid planning

A Guide to the

Institutional Care Program

  • Asset limit: $2,000

    • Types of Assets that count:

      • Real Estate – not homestead

      • Any Liquid assets:

        • Bank accounts, CDs, Money Market funds,

        • Stock and Bonds accounts

        • Trusts

        • Life Insurance – Face Value more than $2,500 - Cash Value

    • Types of Assets that do NOT count:

      • Homestead

      • First Car

      • Pre-paid Burial Contracts:

        • Revocable up to $2,500

        • Irrevocable contract – Unlimited

          • Certain other special exceptions


Elder law and medicaid planning

A Guide to the

Institutional Care Program

  • Income Limit:3xSSI limit – currently $2,163 (Excess QIT)

  • How Much does the Patient Pay? All patient’s monthly income, except for $35 (with certain set-asides)

  • How Much does Medicaid Pay? The Balance of the Allowable Rate

  • Changes in income, assets or facility, Must be Reported ASAP

  • Reviews Annually – by patient, guardian, Designated Rep


Elder law and medicaid planning

A Guide to the

Institutional Care Program

  • Qualified Income Trust:

    • Income over the ICP income limit - $2,163

    • Eligible if they set up a “qualified income trust” and

    • Deposit all excess funds every month

    • Income is less than the income limit

  • QIT must:

    • *Be irrevocable;

    • *Be comprised of income only; and,

    • *Designate the state will receive any funds remaining upon the death of the recipient, up to the amount of Medicaid payments paid on behalf of the individual.


Elder law and medicaid planning

A Guide to the

Institutional Care Program

  • Transfers of Income and Assets:

  • Income or assets transferred for less than fair market value

  • May create a period of ineligibility

  • Varying depending on the value of that transferred

  • Allowable Transfers:

  •  Any resource to a spouse or disabled adult child.

  •  The homestead, without penalty, to

  •  His/her spouse, or, minor or disabled child

  •  His/her sibling w/equity interest and resided there at least one year prior to institutionalization.

  •  His/her ADULT son or daughter who resided at least two years immediately before institutionalization and who provided care that delayed the institutionalization.


Elder law and medicaid planning

How to Apply:

Individuals can apply for benefits:

 From any computer with internet access by visiting our web site: http://www.myflorida.com/accessflorida or,

 At one of the Department’s ACCESS Florida community partners. A listing of community partners can be found online at: http://www.dcf.state.fl.us/access/CPSLookup/search.aspx or,

 At a DCF ACCESS Florida Customer Service Center. A list of Customer Service Centers can be found online at: http://www.dcf.state.fl.us/ess/ or,

 By requesting a paper application by calling 1-866-762-2237 and submitting it in person, by mail or fax.


Elder law and medicaid planning

  • Florida’s Long-term Care

  • Partnership Program

  • Partnership program between Medicaid and private long-term care insurers

  • Designed to encourage individuals to purchase private long-term care insurance. 

  • Long-term Care Partnership policies are tax qualified (a portion of premiums paid may be claimed as a tax deduction) under federal law;

  • Provide policyholders with inflation protection;

  • Provide dollar-for-dollar asset protection in the event the policyholder needs to apply for long-term care Medicaid assistance.  

  • KEY: For every dollar that a partnership policy pays out in benefits, a dollar of assets can be protected from Medicaid spend-down requirements.


Elder law and medicaid planning

Florida Long-term Care Partnership (LTCP) Program by the Agency for Health Care Administration

Florida Statutes:

Chapter 409.9102 Qualified state LTC Insurance Partnership Program in Florida

Chapter 627.94075 A qualified state LTC Insurance Partnership Program in Florida

Chapter 627.94076 Time limit on certain defenses

Chapter 627.9403 Scope, Insurance Rates and Contracts

Chapter 627.9407 Disclosure, advertising, and performance standards for long-term care insurance

Chapter 641.2018 Limited coverage for home health care authorized

Florida Administrative Code:

Chapter 69O-157.201 Standards For Approved Long-term Care Partnership Program Policies

Chapter 69O-157.1155 Producer Training

Chapter 65A-1.712 SSI-Related Medicaid Resource Eligibility Criteria


Reverse mortgages and intrafamily loans

Reverse Mortgages and Intrafamily loans

Do you need the money?

How long will it last?

Is Repayment Secure?


Reverse mortgages

Reverse Mortgages


Reverse mortgages1

Reverse Mortgages:

  • Government Insured Financial Tool allowing Equity conversion to tax-free Cash

  • Live in the home without making payments, on death, loan must be repaid

  • You OWN the home as long as you live in and can pay the Taxes and Insurance, and comply with the loan terms

  • No payments

  • Financial Freedom, control, security and dignity

  • To Qualify: 62, owner occupied


Reverse mortgages2

Reverse Mortgages

Reverse Mortgage Tips

» You should never pay an application fee.

» You should never be asked to pay for information.

» A legitimate lender should never downplay the importance of pre-loan counseling.

» A legitimate lender should encourage questions and provide clear,

direct answers.

» No legitimate lender will ever claim affiliation with the government.

» No legitimate lender will ever claim to be a non-profit organization.

» We have been serving America since 1967.

» You can get confidential advice from professional advisors.

» You will not be pressured to do anything.


Reverse mortgages3

Reverse Mortgages:

  • Taxes must be paid annually

  • Insurance must be maintained

  • Homeowners assessments must be paid

  • On Death or Move (nursing home placement)

    Payment is Expected in a reasonable time


Http portal hud gov hudportal hud src program offices housing sfh hecm hecmhome

http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/sfh/hecm/hecmhome

Go to HUD.GOV

Home Equity Conversion Mortgages for Seniors


Rev mort cont d

Rev. Mort. Cont’d.

  • Borrower Requirements

  • You must:

  • Be 62 years of age or older

  • Own the property outright or paid-down a considerable amount

  • Occupy the property as your principal residence

  • Not be delinquent on any federal debt

  • Have financial resources to continue to make timely payment of ongoing property charges such as property taxes, insurance and Homeowner Association fees, etc.

  • Participate in a consumer information session given by a HUD- approved HECM counselor

  • Property Requirements

  • The following eligible property types must meet all FHA property standards and flood requirements:

  • Single family home or 2-4 unit home with one unit occupied by the borrower

  • HUD-approved condominium project

  • Manufactured home that meets FHA requirements

HUD Requirements


Elder law and medicaid planning

More HUD Requirements:

Financial Requirements

Income, assets, monthly living expenses, and credit history will be verified.

Timely payment of real estate taxes, hazard and flood insurance premiums will be verified

For adjustable interest rate mortgages, you can select one of the following payment plans:

Tenure - equal monthly payments as long as at least one borrower lives and continues to occupy the property as a principal residence.

Term - equal monthly payments for a fixed period of months selected.

Line of Credit - unscheduled payments or in installments, at times and in an amount of your choosing until the line of credit is exhausted.


Elder law and medicaid planning

More HUD Requirements:

Modified Tenure - combination of line of credit and scheduled monthly payments for as long as you remain in the home.

Modified Term - combination of line of credit plus monthly payments for a fixed period of months selected by the borrower.

For fixed interest rate mortgages, you will receive the Single Disbursement Lump Sum payment plan.

Mortgage Amount Based On

The amount you may borrower will depend on:

Age of the youngest borrower or non-borrowing spouse

Current interest rate

Lesser of appraised value or the HECM FHA mortgage limit of $625,500 or the sales price; and

Initial Mortgage Insurance Premium


Intra family loans

Intra Family Loans –

My sister/brother borrowed my mommy/daddy’s

last red cent


Wall street journal report

Wall Street Journal Report:

  • Benefits to Borrowers:

  • Minimum interest rates Internal Revenue Service requires on intrafamily loans close to all-time lows.

  • Known as the Applicable Federal Rate, or AFR, currently just 0.2% for loans of three years or less, 1.27% for loans of more than three but less than nine years, and 2.8% for loans of a longer duration.

  • Benefits to Lenders:

  • Example: married couple in their early 60s—plan to lend $150,000 to their son and daughter-in-law to purchase a "starter home." In return, the parents will receive a 4% interest rate.

    • By Anne Tergesen, Dec. 18, 2011


Intra family loans1

Intra Family Loans:

  • ABA lists 13 significant specific uses

  • Inadvertent loans – planned and unplanned

  • Estate Planning Tools -


Aba list

ABA List:

  • 1. Loans to children with significant net worth;

  • 2. Loans to children without significant net worth;

  • 3. Non-recourse loans to children or to trusts

  • 4. Loans to grantor trusts;

  • 5. Sales to children or grantor trust for a note;

  • 6. Loans between related trusts (e.g., from a bypass trust to a marital trust, from a marital trust to a GST exempt trust, such as transactions to freeze the growth of the marital trust and transfer appreciation to the tax-advantaged trust);

  • 7. Loans to an estate;

  • 8. Loans to trusts involving life insurance (including split dollar and financed premium plans);5

  • 9. Home mortgages for family members;


More on aba list

More on ABA List:

  • 10. Loans for consumption rather than for acquiring investment assets (these may be inefficient from an income tax perspective because the interest payments will be personal interest that does not qualify for an interest deduction);

  • 11. Loans as vehicles for gifts over time by forgiveness of payments in some years, including forgiveness of payments in 2012 as a method of utilizing $5.0 million gift exemption available in 2012;

  • 12. Loan from young family member to client for note at a higher interest rate (to afford higher investment returns to those family members than they might otherwise receive) (In a different context, the Tax Court has acknowledged the reasonableness of paying an interest rate higher than the AFR6); and

  • 13. Client borrowing from a trust to which client had made a gift in case the client later needs liquidity (and the resulting interest may be deductible at the client’s death if the note is still outstanding at that time7).


Valid loan

Valid Loan:

  • Treated as a bona fide loan

  • Market rate of interest (Applicable Federal Rates ‘AFR’-published monthly by IRS)

  • Proper payments of interest and principal

  • Documentation

  • Mortgage must be properly recorded against the property


Planning for blended families

Planning for Blended Families:

  • Children create Problems, Aubrey 2014

  • Married with Children

  • Married with children from previous marriage

  • Married with children from multiple previous

  • My child, your child, his child, her child


Marital status why1

Marital Status: WHY?

Married

Widowed

Divorced

Remarried

Divorced again

  • What are your concerns for her husband?

  • What are your concerns for his children?

  • Who cares about the former spouse?

  • Seriously?

  • Complications Arise.

Nothing complicates planning so much as:

Multiple Decision Makers


Protect yourself use multiple attorneys

Protect yourself: use multiple attorneys

Get help when needed


Helpful links and websites

Helpful Links and Websites:

  • http://medicare.gov/

  • www.Medicaid.gov

  • http://ahca.myflorida.com/

  • http://www.dcf.state.fl.us/programs/access/docs/icp_brochure.pdf

  • www.health.gov.bce.ca/pharmacare

  • www.minimental.com

  • www.Depressionguide.com

  • www.Alzheimers.org

  • www.Aarp.com

  • http://ahca.myflorida.com/Medicaid/ltc_partnership_program/pdfs/Florida_LTCP_FAQs_7-26-11.pdf

  • http://www.dcf.state.fl.us/programs/access/docs/esspolicymanual/a_09.pdf

    • http://www.dcf.state.fl.us/programs/access/docs/esspolicymanual/1630.pdf


More helpful links

More Helpful Links:

  • http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/sfh/hecm/hecmabou

  • http://www.ncoa.org/news-ncoa-publications/publications/ncoa_reverse_mortgage_booklet_073109.pdf

  • http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_13006.pdf

  • http://www.americanbar.org/content/dam/aba/publishing/rpte_ereport/2014/1_february/te_akers.authcheckdam.pdf

  • https://www.nationalfamilymortgage.com

  • www.irs.gov


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