My client told me that her 91 year old sister had never been married and never even had a boyfriend, but she met a nice 88 year old gentleman and now she was getting married to him after knowing him for a very short period of time. True love? Scam?

We frequently hear of someone convincing an elder to change their will or trust for the other person’s benefit, or even using what the law describes as undue influence, but what about a marriage? There have been a couple of high profile cases of this in our area in the last few years — both involved men who had declining mental capacity and the court later determined that they had been taken advantage of by women who married them for their assets.

In one case, the stepdaughter divorced her husband and began wearing her deceased mother’s clothing and perfume to convince her stepfather that she was his loving wife who had returned from the grave. The stepdaughter then took him to Reno and married him! When the details came to light following the man’s death, the court determined that the man perhaps thought he was remarrying his wife who had already died, but he certainly didn’t know that he was marrying his stepdaughter.

The other case involved a man from Norway who lived in San Jose and had no wife or children, but he had $2 million and he was leaving it all to his relatives in Norway. When he died and the family went searching for his estate, it turned out that his estate planning attorney had married him and she was claiming that all of the money had been left to her! He had gone to her for help and she was now claiming that as his wife, everything was hers. However, they had never told anyone about the marriage and they had never lived together, so the court determined that the gentleman wasn’t even aware that he got married. It was the court’s opinion that the man had been scammed and the court directed that his assets were to go to his heirs in Norway. The attorney appealed and continued to claim that she was his legitimate wife, but she lost again on appeal and the heirs in Norway eventually received their rightful inheritance.

These are interesting stories that actually happened in our area.

Marrying for money is a growing scam and it’s a form of elder abuse that is spreading rapidly. Is it abuse, or is it love? Sometimes it’s true love, and sometimes it’s not. How do you tell? There is no federal law on marriage as a form of elder abuse, and state laws vary from state to state. The mental capacity required for marriage is extremely low, so how do you prevent an elder from being scammed? It’s difficult. If the elder is isolated and not in regular contact with family and friends, people other than the scammer aren’t aware of what’s happening. That’s the problem. It’s hard to correct when many months or years have already passed since the marriage occurred.

Talk to your parents and loved ones if you’re concerned. Find out if they are financially “assisting” someone else or if a new “friend” has suddenly entered their life. You should also look for signs of stress or loneliness, especially after the death of a loved one.

We often use special irrevocable Medi-Cal trusts to protect an elder’s assets in the event that they need to go to a nursing home, but these irrevocable trusts have the added advantage of moving the assets beyond the reach of the elder. This generally prevents most of the elder abuse that occurs in situations when the elder is coerced into making changes in the distribution of their assets.

Call our office if we can assist you or a loved one create an estate plan to better protect assets from elder abuse.

First, a disclaimer and a note: I have many clients who are happy in assisted living, and many of the assisted living facilities in our area are fantastic and wonderful and ethical. I am not passing judgement upon any particular facility, but just suggesting that people approach the issue with more knowledge and their eyes open.

Point One – How do you find a good assisted living facility for yourself or your parent? Unfortunately, the need sometimes arises with little warning, and the family hasn’t had the opportunity to look around and check out the different facilities and evaluate them.

Alas, the angels are here to help. Really? . . . My client had to be moved in a rush, and his son was in charge of finding a facility for him. The son advised me that he had been referred to a social worker who was helping him to find the “best” facility for his father at no charge to the family for the social worker’s time and service. Really? I asked who the social worker worked for and I suggested that the son find out how the “social worker” gets compensated.

The son called me the following day in total dismay. He asked the questions I told him to ask, and he found out that the very polite “social worker” was not a social worker at all, but an independent agent who gets paid a commission to place seniors at assisted living facilities. These people essentially act like real estate agents who handle rental properties for a commission, but they are not regulated and they are not licensed by the Department of Real Estate.

How does the family know that the suggested facility is really the right fit for mom or dad, or it’s just the one that pays the agent the highest commission? In most cases, you’ll never know. You need to check out the facilities and develop your own opinion.

Point Two – What is bait and switch? Most of us have an idea of how this works, and many of us have been harmed by this sales tactic before, but has an assisted living facility ever done this? Could such nice facilities, which purport to love elders, really use this tactic to increase their profits? Remember, these facilities are “for profit” ventures.

Clients have told me of placing their parent in an assisted living facility at $4,000 a month after the senior was evaluated by the facility, and then suddenly the charge was bumped to $6,000 and then $8,000 a month because the elder “needed a lot more care than was apparent at the initial evaluation.” Wow…… Really? How could this happen?

You have to ask yourself, is this real? Why didn’t they tell us this in advance? Mom seems the same to us as she was a year ago.

Once an elder is relocated to an assisted living facility, the family is reluctant to move them again. Sometimes the elder had difficulty in adjusting and they don’t want the elder to have to go through that process all over again. The facilities know this too and warn families against moving the elder. The result is that the facility gets more money from the family if the elder isn’t moved.

What Can You Do? – The elder and their family members need to be aware of how things work and be better informed consumers. Follow the money and understand the incentives that people have when they’re giving you advice.

 

 

 

 

I sometimes come across very interesting marital issues. I don’t practice family law, but sometimes discussing the estate planning issues can turn up new questions.

One client needed to do some urgent Medi-Cal planning to protect his properties. He had ended his second marriage 7 or 10 years earlier and they had a list of the properties that belonged to him, but something troubled me about the situation so I asked the family to check with the county to see if their father was legally divorced. Lo and behold, unbeknownst to everyone involved, the man and his second wife were still married because the paralegal they had used for their divorce had never filed the final papers with the court. As if that wasn’t bad enough, the court then required that they start the divorce process all over again from the beginning since so much time had lapsed since they had originally divided their properties.

And what about thinking you’re married, but you’re not? A recent client told me that she had been married for 34 years, but no…. We don’t have common law marriage in California, so they weren’t legally married. Her husband had intended to disinherit his children whom he hadn’t seen in decades, and now her husband was grievously ill in the hospital without the proper estate planning documents. If he had died then, none of his property would have gone to the woman he thought was his legal wife. If he would have died without the proper paperwork expressing his wishes, everything he had, including half of the house, would have gone to the children he intended to disinherit, and his “wife” of 34 years would have been left out in the cold.

And what about separation? A client told me that she was separated, but it wasn’t a legal separation. She signed a document allowing her husband to take all of his retirement money without giving any of it to her, and he did just that! He traveled the world and had fun, and she assumed that because she managed and maintained the rental properties they owned together, that those properties would be for her. Not so. Several years later, after spending all of his retirement funds, the husband was back and asking for his half of all the rental properties which had now increased substantially in value.

Perhaps I shouldn’t be so amazed that these things happen as often as they do, but I’m still continuously amazed.

What if you’re definitely married, but it’s a second or third marriage? Sometimes the couple is very clear on what happens to their assets when the first one dies, and then when the second one dies, but sometimes they haven’t really thought it through, or they’ve given it some thought, but they each have a very different idea of what should happen. And despite age and health issues, there is little certainty regarding the order of death, so you need to plan for both possible outcomes. I have seen families plan for a very ill father to die, and then the mother dies first. Be prepared for either outcome.

Whether you think you’re married or separated or divorced, you should know your correct legal status and you should also know how that affects the planning for the proper use of your assets if you’re incapacitated, and for the proper distribution of your assets following your death. Don’t play around with this. Make sure you’ve planned properly.

What are your final wishes? Have you had this discussion with your family? Do they know what you want? Is it in writing?

Everyone has different ideas of a “good death” or “the perfect death” as it appears to them in their own mind. Maybe you shouldn’t keep your wishes secret. Maybe you should sign the right documents and inform the right friends and family members so that others know what you want.

My first experience with a client who discussed “the perfect death” was several years ago. My client’s name was Jim, and he was 93 years old. He came to see me three times, and he always wore the same snazzy, lime green leisure suit with the pale yellow shirt underneath the jacket. He was always well groomed and smiling.

He told me about one of his good friends, Bob, who had recently died the perfect death. I was curious, so he explained it to me. They lived in an assisted living facility where they had been for several years, and everyone there was very friendly. After dinner, Bob had been hanging around with Jim and other friends in one of the public rooms just talking and laughing. In the morning, Bob got up and shaved himself and dressed himself and got ready to go downstairs for coffee and breakfast. He got into the elevator and rode down to the ground floor where he took three steps out of the elevator and then dropped dead right there.

Jim delighted in the story because Bob was in his 90s, he had experienced a wonderful life, he lived where he was surrounded by friends, and then he dropped dead without ever suffering and without ever experiencing a single day when he was not able to care for himself. To Jim, the whole thing was absolutely magical. He loved telling me the story, and he hoped for a similar ending to his own life. Jim was hopeful that he could die the same way.

The burning question is what will happen to you or a loved one . . . whether it’s a child, parent, or spouse? If they don’t end up with “the perfect death,” are the proper documents in place to allow their trusted individuals to make the right decisions?

One Morgan Hill client had a hard time because her husband was only in his mid to late 50s when he developed severe Alzheimer’s. With the advancing illness, he no longer trusted his one and only wife of many decades, and he was unwilling to sign any legal documents. What could she do to protect him and herself and the children? How could they protect their home?

We never know what our future brings for us.

I had a 99 year old client who was mentally and physically strong and driving his car daily when he finally decided it was time to prepare his trust. Good for him. He made it that far without a problem. And another Morgan Hill woman at the age of 104 years still had an iron grip when she shook my hand, but she knew that her legal documents were outdated and she needed to make several changes to protect her family in the event she finally died or perhaps needed nursing home care before her death.

The people who plan before there is a need are the ones who are able to direct others to follow their own wishes, and they’re also the ones who can better protect their homes and other assets for their family members. But we never know our future. That’s why we need an established plan that will protect us and our loved ones.

Think about what you want for yourself. Make sure that you have the right documents signed and in place so that others can follow your wishes.

It’s a basic combination of procrastination and lack of knowledge. Most people know that they should have some type of an estate plan in place, but they just haven’t gotten around to it yet. Or, perhaps they made a plan 10 or 20 years ago, and it’s now outdated due to family changes or tax law changes. Procrastination is the enemy of good planning. Don’t let yourself wait too long so that dementia, sudden illness, or death will prevent you from doing proper planning. In the last week alone I had to make three visits to clients in the hospital, two visits to clients in a nursing home, and two visits to clients at home on oxygen. Don’t put yourself or your family in that crisis mode. Plan ahead.

Good estate planning encompasses how decisions will be made if a person dies or becomes incapacitated, and elder law planning takes things a step further to look at how your assets can be protected in the event that you need to move to a long-term care facility. Everyone should consider both.

If you succeed in reaching the ripe old age of 65, the odds are slightly greater than 50% that you’ll spend some time in a long-term care facility. The average length of stay in a long-term care facility is about two and a half years, and the cost of care in our area is about $11,500 per month. That’s a little over $135,000 per year, and over $335,000 if your length of stay at the nursing facility matches the national average. Some people, however, will end up in the nursing home for 5 years, 10 years, or even longer. If you’re telling yourself, “I’ll never go to a nursing home,” your thoughts are similar to about 99% of the population. Nobody wants to end up in a nursing home, but the unfortunate statistics show that only 27% of people succeed in dying at home. Don’t take that gamble.

A great myth about Medi-Cal is that you can’t qualify unless you have no money at all, or that the state will take everything from your family when you die. Proper planning can change all of that. Learn what can be done.

If you don’t yet have an estate plan, you should consult a knowledgeable attorney. If you have a plan, but haven’t looked at it for 5, 10, or 20 years, I suggest that you pull it out, take a good look at it, and see whether it still accurately reflects your wishes. We also had a significant tax law change in 2012, and many of the older trusts should be changed to better fit your family under the new tax laws. If your plan was prepared without looking towards the potential need to have Medi-Cal pay for your long-term care, then your existing durable power of attorney may actually hamper the Medi-Cal planning efforts that someone might want to do on your behalf. Be proactive. As Gen. George S. Patton said, “Be prepared for the unknown by studying how others in the past have coped with the unforeseeable and the unpredictable.” Don’t let yourself delay to that point where the lack of a plan hurts you and your family.

Medi-Cal and Medicare consist of very different components and are designed for different purposes. Being eligible for one program does not automatically make you eligible for the other. You must meet separate eligibility requirements for each program. However, if you qualify for both, Medi-Cal will pay for most Medicare part A and B premiums, deductibles and co-payments.

Medicare is an insurance program. Medicare was designed to assist with the high medical costs of older citizens who face financial difficulties given their reduced earning power. It serves people primarily over the age of 65, whatever their income, as well as younger people with disabilities. However, eligibility for Medicare is not tied into individual need. It is an entitlement program. You or your spouse are entitled to Medicare because you paid for it through payroll taxes. Medical bills are paid by trust funds that those covered have paid into. Patients pay part of costs through deductibles for hospital and additional costs. Sometimes, small monthly premiums are required for non-hospital coverage. Medicare is a federally run program.

Medi-Cal is an assistance program run by the state of California for low-income, financially troubled people. This is often referred to as a patient pay responsibility. Medicaid is a federal program administered through the states, and the rules vary from state to state. In California, the Medicaid program is called Medi-Cal. It’s set up by the government and administered by each state. Medical bills are paid by federal, state, and local tax funds. Patients usually pay no part of costs for medical expenses, although, sometimes a co-payment is required. The program varies from state to state. In California it is known as Medi-Cal. There are multiple programs within Medi-Cal, such as Supplementary Security Income (SSI), Aged and Disabled Federal Poverty Level (A&D FPL), Medi-Cal with a Share of Cost (SOC) and California Working Disabled (CWD).

There are many types of documents needed to validate income, assets and expenses. Understanding the eligibility requirements, benefit packages and application process is imperative to choosing the plan that will best suit you and your family.

Jim Ward is an experienced Elder Law Attorney who can help guide you through the process. Give Jim a call to today for a free consultation, 1-800-JIM-WARD.

While trust funds, or trusts, may seem the domain of millionaires, it is beneficial for people at all economic levels to create a trust.  If you plan to leave money to your minor children a trust has to be an integral part of the estate plan. By having a trust in place, money and assets are set aside and available to your children upon reaching a pre-determined age.  Having a trust, managed by a trustee, allows for management of your money, property and assets, and makes sure that they’re distributed after your death — according to your wishes. This will save your family money, time and paperwork.

Benefits of setting up trusts include avoiding taxes, avoiding probate, protecting your estate (as well as the estate of beneficiary or beneficiaries), providing funds for educational purposes, and benefits for charities and institutions.

Trusts are flexible, varied and complex. Each type has advantages and disadvantages depending on your wishes for the future. What kind of trust will work for you? A credit-shelter trust? A generation-skipping trust? A qualified personal residence trust? A irrevocable life insurance trust? A qualified terminable interest property trust?

Before you set up a trust, it is imperative to thoroughly discuss the specifications of the considered trust with your estate-planning attorney.

When it comes to having others use your assets to care for you when you are unable to make decisions, or when it comes to taking care of the ones you love, creating a trust is of utmost importance in meeting your various estate planning goals. .

As an experienced attorney in estate planning, allow Jim Ward to assist you in determining which trusts are right for you and your family. Call us today for a free assessment, 1-800-JIM-WARD.

When many of us were children and wanted something, a parent or other adult often asked, “What’s the magic word?” That was usually the cue that we were supposed to say, “Please.” Well, in our everyday world, we’re still confronted with particular words and the grouping of particular words. Attorneys prepare legal documents every day that have their own “magic words” to get things done properly. In estate planning, these words may not be read and interpreted for years to come, and then people realize too late that it should have been written differently.

While you’re alive and well, documents can be changed. If you’re incapacitated or deceased, other people have to go by the words in your estate planning documents.

I review a lot of documents for people, and I often find that the documents are not clear, or they do not express what the client wanted, or they place the agent or trustee in a very difficult position where the person can’t really do what is needed to act properly. Sometimes the wording can create an unnecessary burden on the surviving spouse after the first spouse passes away.

When a couple prepares a trust to distribute their assets, they do their best to look into the future and think about how they want their property distributed after they both die. Frequently, however, there isn’t a lot of thought given to how the property will be handled after the death of just one spouse. Estate planners have had several ways of addressing this issue over the years, and it frequently came down to an attempt to reduce or avoid any estate tax. ­— But over the last several years, we’ve had numerous tax law changes that affected the estate tax.

The situation that estate planners often find now is that clients who had their estate plan prepared several years ago are sitting with a valid plan that is not the appropriate plan for the tax laws that are in effect today. What’s the result? The plan may severely limit what the surviving spouse can do, and in many cases this wasn’t what was intended. Can it be changed? Yes, as long as both spouses are still mentally competent and they take action.

If you have a trust, take it out and read it carefully to see what it says. If you aren’t comfortable with your own ability to understand the trust, take it to an estate planning attorney to have them look it over and tell you how the assets will be distributed. What is the intent? Are the assets joint assets from a lifetime of hard work? Were the assets inherited by just one spouse? Is this a second marriage? Do either of you have children from a prior marriage? Has your planner bypassed the difficult conversations that need to take place?

What about your durable power of attorney? It’s one of the most powerful documents you have — if it has the powers you need. The same thing goes here. Have it reviewed by a knowledgeable attorney. I have seen durable power of attorney documents that range from two pages to thirty pages. Many of these documents, however, just don’t get the job done. They lack the “magic words” for the agent to take care of the person who signed the document and gave the powers to the agent. This is particularly the case when it comes to elder law. The majority of power of attorney documents are insufficient for elder law planning.

If you don’t have an estate plan in place, get it done now. If you already have an estate plan, have a qualified attorney review your trust, durable power of attorney, and other documents to make sure that they have the magic words that you need.

How to Avoid Jeopardizing Government Benefits for Family Members With Special Needs:  The goal of special-needs estate planning is to provide for loved ones with disabilities when you are no longer there to organize and advocate on their behalf. Apart from the standard estate planning documents that most people are familiar with — such as wills, powers of attorney, and health care directives — parents of a special-needs child often have additional considerations that can only be addressed in certain legal documents.

A special-needs trust—sometimes called a “supplemental needs trust”—provides for the needs of a disabled person without disqualifying him or her from the benefits received from government programs such as Social Security and Medicaid. A supplemental needs trust enables a person that has a physical or mental disability, or an individual with a chronic or acquired illness, to have an unlimited amount of assets — held in trust for his or her benefit. In a properly drafted supplemental needs trust, assets are not considered “countable” assets for purposes of qualification for certain government benefits.

Such benefits may include Supplemental Security Income (SSI), Medicaid, vocational rehabilitation, subsidized housing, and other benefits based on need. For purposes of a supplemental needs trust, an individual is considered impoverished if his or her personal assets are less than $2,000.

A supplemental-needs trust provides for supplemental and extra care over and above that which the government provides.

Special-needs planning encompasses many areas of law, such as trusts and estates, public benefits law, and health care law. Planning for the future of an individual with special needs requires an in-depth knowledge of the federal laws as they pertain to government eligibility and legal documentation. There are important financial considerations, as well, for providing not just lifetime care, but also for an individual’s quality of life.

Special-needs estate planning requires a delicate balance of resources — and careful consideration of each family’s unique circumstances. As an experienced attorney in estate planning, Jim Ward assists his clients in developing special-needs trusts, wills, letters of intent, health care directives, powers of attorney and other means of ensuring that loved ones will enjoy a lifetime of care, assistance and financial security.

Don’t hesitate to call us today for a free assessment — 1-800-JIM-WARD.

The decision to move a family member or loved one into a nursing home is one of the most difficult decisions you can make. When you or a loved one is sick and is faced with the prospect of moving to a skilled nursing facility, it’s important to remember that you have options. Careful planning, whether in advance or in response to an unanticipated need for care, can help protect your estate for your spouse and/or your children. One approach to planning is making sure that you receive all the benefits that you are entitled to under the Medi-Cal program.

Medi-Cal is California’s Medicaid program. It’s a public health program, which provides needed healthcare assistance for eligible individuals. The state of California and federal government finance it equally. The nursing home Medi-Cal program is designed to assist with the payment of skilled nursing care costs for individuals who qualify. Without Medi-Cal, a skilled nursing home resident can expect to pay about $9,500 per month in Santa Clara County.

There are three very important areas to consider when developing a comprehensive Medi-Cal plan:

1. Eligibility planning (to qualify for Medi-Cal benefits)
2. Income planning (to reduce or eliminate Medi-Cal beneficiary’s monthly “share-of-cost” co-payment)
3. Medi-Cal estate recovery planning (to reduce or eliminate Medi-Cal estate recovery against the beneficiary’s estate)

Early Medi-Cal qualification planning can enable you to create estate-planning documents with Medi-Cal planning language. This will ensure that your appointed agent is able to carry out further Medi-Cal eligibility planning if you become incapacitated at a later time. Proper estate planning documents can also insure that your appointed agent has legal authority to implement an appropriate Medi-Cal estate recovery minimization or avoidance plan.

California laws regarding Medi-Cal eligibility are constantly changing. Because of this, it’s important to consult with an attorney who will help you understand how Medi-Cal changes can affect your current estate plan, as well as your plan for the future. As an experienced attorney in elder law and current in California Medi-Cal planning, Jim Ward can help you avoid the pitfalls associated with Medi-Cal. If you are planning for a sick parent or for the future of you or your spouse, please give Mr. Ward a call today to see how he can help you and your family.