Power of Attorney
A Power of Attorney is a document in which you designate one or more persons called agents, to manage your finances or act for you if you are unable to do so. It can be limited to specific matters or drafted to give the appointed agent(s) authority to act broadly on your behalf. The duration of the authorization can be limited or open-ended. A Power of Attorney gives the agent(s) designated the ability to act on your behalf with financial institutions, insurance companies, tax authorities and other governmental agencies.
The appointed agent(s) can also be given the authority to transfer or gift funds to implement an asset protection plan and/or for Medicaid planning purposes.
A Power of Attorney is a formal document that should be prepared by an attorney, witnessed by two people and signed under an attorney’s supervision. New York has specific laws governing these requirements.
Health Care Proxies
A Health Care Proxy is a document which allows you to appoint someone known as an agent, to make health care decisions on your behalf in the event you become unable to do so. A Health Care Proxy gives an agent the right to speak with health care providers, doctors, hospitals, etc. to make important decisions, in your best interest, regarding health care needs when you become unable to make these decisions on your own.
A Health Care Proxy is a formal document that should be prepared by an attorney and signed under an attorney’s supervision.
Much has been written regarding the use of revocable trusts as a solution for a wide variety of problems associated with estate planning that Wills cannot address. Some attorneys regularly recommend the use of revocable trusts, while others believe that their value has been somewhat overstated. The choice of utilizing a revocable trust in your estate plan should be made after consideration of several factors and only after your goals have been clearly stated. The old saying holds true here: “what is a better tool, a shovel or a hammer”? The answer of course is “what are you trying to accomplish”? Whether or not a revocable trust is right for you is based on what you want to do.
In general, a revocable trust can help you manage your assets, provide special instruction for the distribution of the trust assets, avoid probate and the court system, and retain privacy. Revocable trusts permit you to revoke or amend them whenever you wish to do so. In general, revocable trusts do not help in Medicaid planning.
Unlike a revocable trust, an irrevocable trust is a type of trust where its terms typically cannot be modified, amended or terminated. An irrevocable trust avoids probate, but they really shine as a safe, risk-free environment to transfer assets in order to shield them from Medicaid recovery. Assets place in an irrevocable trust shield those assets from Community Care Medicaid after 30 months and Chronic Care Medicaid after 60 months. Irrevocable trusts are the primary tool used in Medicaid pre-planning.
A pooled trust is a trust usually established and administered by a non-profit organization. It is frequently used in Elder Law to preserve income that Medicaid would otherwise take from you and reclaim it to pay bills in the applicant’s name or in the applicant’s and spouses names jointly. Without using a pooled trust properly, Medicaid will pay for aides to come to your house, butwithout a pooled truct, Medicaid will only allow you to keep $884/ month of your income in the year 2021. The rest of your income will go to the Managed Long-Term Care Company (“MLTC”) to reimburse them for the aide services they provided. With the use of a pooled trust, the majority of your income can be used to pay your living expenses and neither Medicaid nor the MLTC will take it. In other words, it is a tool that gives you the opportunity to age in place at home.
Spousal refusal is a legally valid Medicaid planning option in just two states: New York and Florida. By way of background, certain income and assets are exempt from Medicaid if there is a spouse. But if the community spouse has too much, Medicaid can ask for the amounts above the exemptions to help pay for the care costs of the spouse requiring Medicaid benefits.
Many spouses have advised us that they simply cannot afford to live on the allowances that Medicaid provides. This is where spousal refusal comes in. The spouse not on Medicaid benefits can file a Spousal Refusal with the Department of Social Services which allows that spouse to have unlimited income and resources and still allows the spouse needing Medicaid benefits to be eligible for those benefits. In this situation, the spouse not receiving Medicaid benefits has a greater chance of having the resources and income necessary to live at home.