San Diego Estate Planning Lawyer Blog

We applaud clients that have had the foresight to get an estate plan in place, before they need it. It makes it much easier on your family if you have taken the time to prepare an estate plan ( a will or a trust), specifically setting forth who you want to inherit your estate, who you want to pay your final bills and distribute your estate, how you want your personal effects divided, etc. Sometimes however, doing estate planning can be just the beginning of your planning. Some people discover that on down the road they also need financial planning, long-term health care planning, or Medi-Cal planning.

Especially long term planning and Medi-Cal planning are subjects that most people know little about. You may have questions about how to pay for long-term care? How do I know if I need it? Can I plan now for the possibility I will need it in the future?

AARP (American Association of Retired Peersons has a great article tthat discusses some of these issues. According to AARP, about 60% of people over the age of 65 will require some type of long-term care during their lifetime. There are many choices for long-term care from having your family members care for you to long-term health insurance and Medi-Cal. Sometimes you need a combination of services.

For the legal side of planning for long-term care or qualifying for Medi-Cal, contact us at Pinkerton, Doppelt, & Associates, LLP. We offer a complimentary consulatation and will be happy to discuss your questions about these and other estate planning issues.

Many seniors have serious concerns about going into a nursing home. They have questions such as whether they can be forced to go into a nursing home, how to pay for nursing home care, and how to choose a nursing home facility that will provide good care. They also wonder if they can qualify for Medi-Cal to pay for such costs.

No one can be forced into a nursing home. If you do not believe you need nursing home care, the only way you can be forced into such a situation is through a court ordered conservatorship. An interested party can file a petition to have a conservator appointed if you are unable to take care of yourself. You have the right to appear at the hearing, present evidence that you do not need a conservator, and have a lawyer represent you.

If you do need nursing home care, there are many reputable ones. Choosing the right nursing home can be an important decision for you and your family. Nursing homes are strictly regulated by the state and federal government. There are regular inspections and procedures for complaints. In San Diego, there are many nursing homes. You can get information about how to choose one from AARP and California Advocates for Nursing Home Reform. Personal referrals from friends, senior centers, or churches can help narrow your search. Make sure you personally visit the ones you are considering and if Medi-Cal may be paying for such care at some point, choose a place that accepts Medi-Cal so that the individual will not have to be moved once Med-Cal is paying for the care.

The cost of a nursing home stay can be covered by Medicare but only for skilled nursing care ordered by a doctor. Once your care becomes routine custodial care, Medicare will not cover the expenses. Medi-Cal qualification may be an option if you meet the income and assets limitations.

Once someone is moved into the nursing home, they cannot be forced to move unless the individual endangers the safety of other residents, their needs cannot be met at the facility, or there are problems with payment of services.

If you need assistance to insure that you or a loved one have the appropriate estate planning documents such as a will or a trust, a power of attorney and a health care directive prior to entering a nursing home, contact us at Pinkerton, Doppelt, & LLP. We can also help with Medi-Cal planning or Medi-Cal qualification. We can help you determine if you have some exempt assets, whether annuities or reverse mortgages might help you remain in your home, and explain the options you have for long term care.

With the aging baby boomers now becoming seniors and people living longer in general, one of the issues seniors face, especially in this economy, is the possibility of needing long term care. The cost of nursing home care has risen tremendously in the last decade. A survey done by Metlife in October 2008 listed the average cost of a private room in San Diego as $240 per day. Assisted living facilities can run anywhere from $2500 - $5000 per month, even more for specialized care such as for Alzheimer’s patients.

You can read more about long term care planning in an article here on our website. One option to pay for nursing home care is Medi-Cal, the California state-funded needs based program. Medi-Cal provides health and long term coverage to over 10 million Californians. To qualify for Medi-Cal for 24 hour care in a skilled nursing home,an applicant must pass the Income Test and the Asset Test. Medi-Cal has certain income limitations and also only pays for the cost of nursing home care if the "countable" or "non-exempt" assets of the person needing care and their spouse are below certain limits.

There are some assets that are “exempt” meaning they do not count in figuring your assets. Some of these “exempt assets” are a home, car, personal property, $1500 in life insurance, and prepaid funeral plans. You can also convert some of your countable assets into exempt assets before entering a nursing home.

If there is any chance that you or a family member will need Medi-Cal assistance, contact us at Pinkerton, Doppelt, & Associates, LLP for a complimentary consultation. There are strategies we can advise you about such as spending down your assets, converting nonexempt assets to exempt assets, and other techniques to enable you to qualify for Medi-Cal. We can assist you in determining if you qualify for Medi-Cal and act as your representative in completing and submitting the application.

Medi-Cal considers the amounts they pay to you in the nature of a loan that has to be paid back from your estate after you die. There are some legal steps that can be taken to minimize or eliminate the collection attempts but they need to be handled properly to be effective.

Seniors in San Diego as in other cities across California have many issues that are unique to them: Elder abuse, Medi-Cal planning and eligibility, social security, health care directives and powers of attorney, rights as a grandparent, and various estate planning issues.

There is a great publication published by the California State Bar that will be coming out in May. The guide called Seniors and the Law: A Guide for Maturing Californians is a comprehensive publication which addresses laws and legal issues relating to seniors.

The publication was first printed in 2003 but has been updated for the estimated 5.5 million residents of California who are over 60.

To order a copy in English or Spanish, you can email the California State Bar at seniors@calbar.ca.gov. Orders will be shipped in May.

The simple answer to this question is “before you need it” however knowing when that is can often be difficult. Most of us know to plan for retirement but sometimes we don’t recognize the need to plan for when we or our parents can no longer take care of ourselves.

People are living longer and more people will need long term care than in past generations. Some people do not realize that often what strikes the elderly is not a physical ailment but a mental condition which Medicare will not cover. Medicare typically covers such things as skilled nursing but it usually does not cover custodial care. Paid caregivers at home or home health aides, a nursing home, or other assisted living facilities will not usually be paid for by Medicare.

The time to consider the expenses of long term care is before it is needed so that you can explore such options as long term health care insurance, a spend down of assets to qualify for Medi-Cal, or community services that may be available. Taking the time now to plan, before there is a need, will give you peace of mind to deal with the difficult decisions that arise when the time comes.

The San Diego based estate planning lawyers at Pinkerton, Doppelt, & Associates, LLP can assist with making sure you or your parents have up to date health care and asset powers of attorney and answer questions you have about Medi-Cal. Feel free to contact us if we can help.

The San Diego County Courts hear many cases where a conservatorship is sought of an individual’s estate or person. When an individual cannot take care of his or her financial or personal affairs, it may be necessary to have the probate court appoint a conservator of the estate or of the person. A conservator of the estate is responsible for handling the finances of the conservatee. The individual appointed has broad powers to manage assets, write checks, make investments, etc. A conservator of the person is an individual appointed to make decisions about the conservatee’s personal needs such as health care, residence, food, clothing, etc.

A conservatorship can be an expensive process and may not always be necessary. Before the court appoints a conservator for an individual, it must be shown that no other alternatives are available to the proposed conservatee. These alternatives are durable powers of attorney, trusts, or the voluntary acceptance of assistance.

1. A power of attorney is a written document whereby one person (the principal) appoints another ( the agent) to act on his behalf upon incapacity. Powers of attorney for finances and for health care may provide a viable alternative to a conservatorship.

2. If the individual had a properly prepared revocable living trust, the successor trustee can step in and manage that individual’s affairs if the trustor becomes incapacitated. This needs to be done in advance of the incapacity however. Once the proposed conservatee lacks capacity, a trust cannot be created.

3. If the person who needs help with personal decisions will accept the help of relatives or friends about such things as medical care, food, clothing, and shelter, a conservatorship of the person may be avoided.

For more information about setting up a conservatorship or avoiding one by the preparation of a revocable living trust, contact us at Pinketon, Doppelt, & Associates LLP.

According to the Alzheimer’s Association, there are an estimated 5 million Americans suffering from Alzheimer’s disease. Fortunately, San Diego has a lot of resources for families living with the disease. The George G. Glenner Alzheimer’s Family Centers is one resource that helps families with adult day care, respite programs, and support groups. The Southern California Caregiver Resource Cener also provides assistance in the form of support groups, seminars, respite care, etc. Information on geriatric care managers is available through the National Association of Professional Geriatric Care Manager’s Association.

Alzeimer’s eventually results in disorientation, memory loss, cognitive dysfunction, and inability to take care of oneself and one’s finances. Planning ahead can be vital for family members caring for the Alzheimer patient. Once the individual loses the capacity to make financial decisions, it is too late to execute important documents like powers of attorney and wills or trusts. All such documents require that a person have the ability to understand what they are signing and the legal effect of signing the document. If a person becomes incapacitated before someone can be named to make important decisions, the only alternative may be a conservatorship which is costly, requires court approval, and takes time.

If you are coping with a person who has Alzheimer’s or any other type of dementia, take advantage of all the resources available. Contact us at Pinkerton, Doppelt, & Associates, LLP if we can help with powers of attorney or other legal documents to enable other individuals to take over health care and financial decisions when the person becomes unable to do it personally.

At Pinkerton, Doppelt, & Associates, LLP, we want to make sure our clients and other seniors in San Diego are aware of matters important to them. Medicare is the nation’s largest health care plan covering nearly 40 million Americans. From November 15 until the end of the year is the Annual Election Period (AEP). Those eligible for Medicare or those already enrolled can change their enrollment in or out of Medicare Part D and Part C.

If you currently are on Medicare you know that there are four parts. Most people with Medicare have Part A which is basically hopsital coverage and Part B which covers doctors and oher practicioners. Part C is the Medicare Advantage Plans under which Medicare pays a private insurance company to administer your Medicare benefits. Part D is the prescription drug coverage.

Many people will receive information from the Advantage companies before November 15 advising them of any intended changes to existing plans in 2009. This may be called an Annual Notice of Change. If you receive information that your plan is changing, you should review it carefully in order to make an intelligent decision on whether to enroll or remain in the Medicare Advantage Plans. At the Medicare website you can read about the various plans and the step by step process of the decision making in the Medicare Handbook for 2009. National Care Planning Council also has information on the Medicare approved advantage plans in California.

The Governor recently signed California Senate bill 483 which will bring some major changes to the Medi-Cal Long Term Care program. This bill was designed to put California in conformance with the Federal Deficit Reduction Act of 2005 which requires states to place limitations on Medi-Cal eligibility or risk loss of federal funding. The bill will go into effect January 1, 2009 and will have an impact on hundreds of thousands of seniors and individuals with disabilities or mental health issues.

The bill will change the look back period in California from 30 months to 60 months and makes the penalty period start when an applicant is in a nursing home and applies for benefits. (The look back period is the time within which Medi-Cal can review transfers of assets.)

The bill also limits the equity in the exempt home to $750,000 and defines “equity interest” as the assessed value or appraised value, whichever is lower, minus encumbrances. The home equity limits do not apply however in certain circumstances.

The other major change is the way Medi-Cal will treat annuities. The new bill will require applicants to disclose whether they or their spouses have an annuity. The bill will also require the State to specify whether an annuity is the type where the State may become a remainder beneficiary. There are some types of exempt annuities such as work-related pension annuities and irrevocable annuities which are actuarially sound with no deferral or balloon payments. For additional information or to receive a copy of Senate Bill 483, read the article on this subject on this website.

If you need help with Medi-Cal qualification or other Medi-Cal issues, contact us by phone or e mail us at Pinkerton, Doppelt, & Associates, LLP.

New facilities are springing up all over the county for seniors in such areas as Escondido, Encinitas, San Marcos, and Vista. Some facilities have a resort type atmosphere and some even specialize in dementia and Alzheimer care. You can obtain a directory of senior facilities for assisted living, independent, and convalescent care from Alternatives for Seniors.

Moving a loved one to an assisted living, nursing home or convalescent home is not an easy decision. Particularly troublesome is how to pay for such care when one spouse needs to be cared for in a facility and the other wants to remain at home. Such specialized care can be expensive and impossible for many people to pay for out of pocket. It is estimated that long term care can cost $40,000 - $60,000 per year in some areas. Medicare typically will not pay for long term care. Some people have policies of long term health care which may partially cover such costs but if the insurance was not purchased when the individual was healthy, it is not going to be possible to obtain insurance once it seems evident that long term care will be necessary.

Medi-Cal is the California Medicaid system for people 65 or older with limited income and financial resources. Medi-Cal may pay for long term care however its rules and regulations are constantly changing and often confusing for the average person. At Pinkerton, Doppelt, & Associates we can help you with Medi-Cal planning, which is the process of qualifying for benefits while still protecting assets that have taken you a lifetime to accumulate. Call or e mail us to set up a complimentary consultation.

In San Diego and elsewhere, more and more Americans are suffering from Alzheimer’s, dementia, or other diseases that cause them to become unable to take care of themselves. It is estimated that 1 in 7 Americans over the age of 70 suffer from some sort of dementia.

We are all living longer and as the elderly population grows in the United States, the incidence of dementia and Alzheimers will be increasing. By the year 2050, it is estimated that between 11 and 16 million Americans will have Alzheimer’s disease. Planning for the future needs of such people becomes increasingly important.

When your loved one has been diagnosed with dementia or Alzheimers, family members need to plan for the future. If the disease is still in its early stages, the individual may still have the mental capacity to execute documents such as a Durable Power of Attorney for Finances and an Advance Health Care Directive. If the individual already has a will or trust, these may need to be amended. In addition, long term strategies may have to be considered for such things as in-home care, assisted living, or nursing home placement.

The time to consider these issues is before disease robs the individual of the ability to make these important decisions. Once the individual is incapable of making decisions for himself or herself, family members will have to seek court assistance to set up a conservatorship. It is much less expensive to plan ahead and avoid the time and expense of a conservatorship.

At Pinkerton, Doppelt, & Associates, LLP we can assist family members in planning for the future to avoid a conservatorship of their loved one. If a conservatorship is necessary however, our experienced estate planning attorneys can assist with that as well. Please feel free to e mail us.

There are a number of resources available to families with loved ones suffering from dementia or Alzheimer’s. The Alzheimer’s Association and the Alzheimer’s Disease Education and Referral Center are two websites with information and links.

In San Diego, many residents need skilled nursing home care. At our law firm of Pinkerton, Doppelt & Associates, LLP, we are pleased to offer a complimentary and confidential consultation for you or a loved one who needs skilled nursing care or long term care planning.

The Medicare website has many useful articles. One article on on paying for skilled nursing care. The costs are thousands of dollars per month and can strain even the most financially stable families. The laws of the State of California are very complicated as is the applicaition process. Please feel free to e mail our law firm if you need additional information.

In San Diego, there are many residents who need long term care planning. These include San Diego residents who are both old and young. It is important to begin the planning as soon as possible since there are many options. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist with advising you of the law regarding long term care planning and assisting your family in this difficult time. Please feel free to e mail or call our office for a complimentary and confidential consulation.

The San Diego Union Tribune has an article which discusses long term care insurance. This can be part of an estate plan. Be sure, as in the article, to use a licensed and reputable agent. You can check on the California Department of Insurance website for credentials and current license status.

Target also has advice for long term care planning. This site has useful information and also discusses an advanced health care directive. This is essential in any estate plan.

The above articles are used for illustrative purposes only.

In Kearny Mesa, there are many residents receiving government benefits. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist with your long term care planning. Please feel free to e mail or call us to arrange a complimentary and confidential consultation. The below is not a case involving a Kearny Mesa resident however the application of the law would be the same regarding the "look back" period. All cases are unique and we urge you to consult with a licensed attorney by the State Bar of California.

An applicant for Medicaid may have eligibility for benefits delayed if he or she has recently transferred real property to an individual for less than the fair market value of the property. A penalty period is imposed if the transfer took place during a span of time known as the "look-back" period. This provision is meant to prevent duplicitous gaming of the Medicaid system, but, as a court recently noted, the provision does not justify viewing every property transfer with skepticism and disapproval merely because it precedes Medicaid eligibility.

In the case before the court, a 67-year-old who suffered from Alzheimer's disease and other ailments applied for Medicaid assistance. The state agency that oversaw Medicaid rejected the application on the ground that the applicant had transferred real property for less than its value within the look-back period. The applicant, in fact, had conveyed the home where she lived to her three children as a gift, and the deed to the property was recorded shortly before she applied for Medicaid.

Nonetheless, the court overturned the agency decision because the agency had not properly pegged the point in time when the property transfer became effective as a matter of law. For various reasons, there had been a lengthy delay in getting the executed deed recorded, but the deed had been executed and delivered to the children well before the look-back period began. The court favored a "benevolent" interpretation of the family's well-intentioned but haphazard attempts to follow up more promptly with recording the deed, rather than seeing it as part of a scheme to delay the transfer until it was apparent that the mother needed nursing home care and Medicaid money to pay for it.

It is a well-settled principle of property law that a transfer of real property is complete upon the execution and delivery of a deed and its acceptance by the recipient of the property, and nothing in the Medicaid regulations contradicts that principle. In the case at hand, there was no reason to suspect that the mother did not mean to convey the property as soon as the deed was executed and delivered. Since the transfer of the property was effective when the deed was transferred, the transfer occurred outside the look-back period and the applicant was eligible for Medicaid assistance.

In California, nursing homes can wipe out a family financially and even one that is well off. Our law firm of Pinkerton, Doppelt & Associates, LLP have assisted our client's in long term care planning. This is a complex and complicated are of the law. Please feel free to e mail or call us for a complimentary and confidential consultation.

MediCal is California's Medicaid. This is a governmental program that provides health insurance coverage for low-income children, seniors, and people with disabilities. As the baby boomers age, Medicaid's other role, as a source of nursing home benefits, is getting more attention. Each of the states operates its own Medicaid program, subject to some overriding rules set up by Congress and the federal Centers for Medicare and Medicaid Services. The following is an overview of some of those rules. Be aware that the specific requirements can vary from state to state, and must be checked before making decisions.

An individual may have no more than $2,000 in "countable" assets to be eligible for Medicaid nursing home benefits. Assets that are not counted in this calculation include personal possessions, one motor vehicle (valued up to $4,500 for an unmarried recipient and of any value for the resident's spouse), a principal residence in the same state where benefits are sought, prepaid funeral plans and a small amount of life insurance, and assets deemed to be inaccessible. To promote the independence of the nursing home resident's healthy spouse, usually referred to as the "community" spouse, that spouse may keep one-half of the couple's countable assets, up to a maximum of $92,760 in 2004. The least that a state may allow the community spouse to retain in 2004 is $18,552. The couple's assets are totaled as of a "snapshot date," which is when a spouse enters a long-term facility in which he or she then stays for at least 30 days.

To avoid giving benefits to those who present a false picture of poverty, there is a transfer penalty that is imposed when people transfer assets without receiving fair value in return. The Government divides the amount so transferred by the average monthly cost of a nursing home in the state in question. The person is then ineligible for Medicaid during the resulting number of months. Several provisions limit the impact of the transfer penalty. First, Medicaid officials can consider only transfers made during the 36-month "look-back period" preceding the application for Medicaid (or 60 months for transfers made to certain trusts). As a result, it is prudent not to apply for benefits in the three years after a large transfer. Second, the transfer of assets to particular categories of individuals, such as spouses and blind or disabled children, will not bring about a penalty. Finally, a penalty can be completely wiped away, or "cured," if the transferred asset is returned, or the penalty may be reduced to the extent that the asset is partially returned.

The starting point for dealing with income under Medicaid is that nursing home residents pay all of it, less certain deductions, to the nursing home. The types of deductions are as follows: a $60 per month allowance (subject to some variations among the states) for the resident's personal needs; a deduction for any uncovered medical costs, including premiums for medical insurance; for married applicants, an allowance for the spouse at home if he or she needs income support; and a deduction for any dependent children living at home. Income attributable solely to the community spouse is off-limits. It is not taken into account in determining eligibility and the community spouse will not have to use his or her income to support the spouse receiving Medicaid benefits in a nursing home.