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⚡️How You Are Set Up to Fail

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

I am not happy. I have been fighting for my clients for years. As an Elder Law attorney, I have been on the front lines protecting property and individual rights. I have faith in this country and the hardworking people who live here. However, I have only seen the system make it harder and harder to keep your hard-earned money and property and to ensure you’re not taken advantage of. There is no other way to say it, the system is set up to take away your money and rights before you pass away.

The Cost of Long-term Care is Increasing

The average cost of long-term care is between five to ten thousand dollars a month. And that amount is only going up.  Considering that seventy percent of individuals over the age of sixty-five will need long term care, means that the majority of individuals in this country are facing a huge expense that they certainty cannot afford.

The expectation is that you spend whatever you’ve worked your whole life to earn on this need for care. Medicare won’t cover it, your supplement won’t cover it, and you basically have only a couple options to pay for it.

You can use Medicaid to pay for it. However, you have to qualify for Medicaid first—even though you have paid into Medicaid your whole life, just like Medicare and Social Security. Most people think that they can never qualify for Medicaid to pay for long-term care. However, this isn’t true. With the right kind of planning, almost anyone can qualify. It just takes doing.

The Rights of the Elderly are Routinely Ignored

This is extremely important because, considering that we all age, this affects us all. It seems that once you reach a certain age, you begin to lose your constitutional rights. I am referring to incompetency and Guardianship.

A Guardianship is a process that can take someone’s rights and liberties away and make them a Ward of the State. Notwithstanding the fact that a Guardianship is a similar deprivation of rights as a criminal case, a Guardianship is much easier to get than a conviction. Courts around this state routinely rubber stamp Guardianship orders that take away people’s rights. This is after having what can hardly be considered a hearing, with minimal evidence and a low burden of proof. Not to mention that the hearing isn’t even in front of an actual judge.

Thankfully, there’s things you can do to protect against this sort of thing happening to you or a loved one. Again, it takes doing.

They’ll Get You with Taxes

We get taxed on almost everything. Taxes are most individual’s largest expense. You’d think that there would be an end in sight. However, they’re just looking for more.

I am referring to the death tax. The talk in Congress is that it’s coming roaring back and if you’re not prepared for it, you can face anywhere between forty-five and fifty percent tax on your estate.

You guessed it, there’s also a way to plan to protect from this too. However, you need to sit down and do it.

It takes doing

So, why am I telling you this? I want to demonstrate that you’re set up for failure. That’s the default position that you’ve been put in as a citizen of this country. But it doesn’t have to be that way. There’re things you can do to protect yourself, your loved ones, and your hard-earned money and property.

What it takes is an hour conversation with someone like the experienced attorneys at McIntyre Elder Law. If you have questions about how to not fail, give us a call: (704)-259-7040.


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If we can help you preserve assets before major changes in the law we would be glad to do so and would offer a FREE consult to sit down and discuss asset protection. Give s a call to schedule your free consult today or schedule online at: mcelderlaw.com. For a list of local numbers to our offices see below:

  • Charlotte: 704-749-9244
  • Shelby: 704-259-7040
  • Hendersonville: 828-233-5991

Please don’t wait ‘til it’s too late. Call McIntyre Elder Law today.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Fiduciary Series: Trustee

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

The next steps after being named a trustee depend on what kind of trust to which you’ve been named the fiduciary. Specifically, you must first determine whether you’re trustee of a revocable or irrevocable trust. 

Revocable

As a quick reminder, a revocable trust is an amendable trust agreement of which the Grantor (the person who made the trust) may also serve as Trustee. However, regardless of who is acting as Trustee, the Grantor may amend a revocable trust at any time. 

If you’ve been named as Trustee, you need to know what the trust says. Most revocable trusts maintain the Grantor as Trustee and name non-grantor parties as successor Trustee. This person steps into the role as Trustee if one or both of the Grantors becomes incompetent, incapacitated, or otherwise unable to act because of illness or death. Just because you’ve been named as a successor Trustee doesn’t mean you can avoid doing your homework. You should have a copy of the trust, be appraised of the material terms of the trust, and know what assets the trust holds. 

Irrevocable

An irrevocable trust is one that is not amendable and cannot have a Grantor as the Trustee. Thus, if you’re named as the trustee of an irrevocable trust, your job starts on day one. Whatever is held by the trust is managed by you and only you—unless you have a co-trustee. Similar to a revocable trust, you should understand the terms of the trust and you should be aware of the trust assets. 

Irrevocable trusts are typically used to protect assets for a particular reason. Therefore, they may have stringent terms and must be administered with the utmost care. In consideration of the gravity of this duty, you should seek the advise of counsel to understand the left and right parameters of your authority with respect to the trust. Furthermore, you should likely seek the advice of an attorney before making major decisions on behalf of the trust. After all, the trust was set up with an abundance of care and forethought. Such care and forethought should be the theme going forward. 

If you become the Trustee of a trust created under a will (a testamentary trust) or under another trust, that trust will be considered irrevocable. 

Conclusion

Because trusts are such flexible documents, the terms and manner of administration may differ greatly from one trust to another. Thus, it’s imperative that the individual tasked with the proper administration of the trust must seek the proper guidance to ensure they carry out they duty properly.

If you have questions about the administration of trusts give the experienced attorneys at McIntyre Elder Law a call at 704-259-7040 or visit our website at mcelderlaw.com.


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If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Brenton S. Begley, Elder Law Attorney

Book Your FREE CONSULT Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fiduciary Series: Executor

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

So, you’ve been named someone’s Executor in their will. Now what? The answer to this question can be broken into two separate phases: pre death and post death (to put it bluntly). It’s important to note that you don’t have to be an Executor, even if you’ve been named. However, if you choose to undertake this duty, it’s best to know what to do next. Here are your immediate first steps.

Phase 1:

Phase 1 is easy. You have been named an Executor in the last will and testament of someone who trusts you. The person that named you (the Testator) is thankfully still alive. So, there’s not much to do. This is because the will doesn’t really come into play until the death of the testator. That being said, there are a couple things you need to know.

You need to know the location of the original copy of the will. To probate a will, you must have the original version. And, while it’s possible to probate a copy, it’s a huge headache. Thus, you should ensure that the Testator keeps the original in a safe place that you have access to.

You should know which items, generally, are passing through probate. A will means probate. Thus, only assets that pass-through probate are controlled by the will. Because of this, you should have a general idea of the assets, owned by the Testator, that will pass outside of probate. These assets may be ones that have been placed in trust or assets that have a beneficiary designated or right of survivorship. Either way, knowing which assets you actually need to worry about will save you a lot of time and energy.

Phase 2:

You should know what the will says. Wills are legal documents with terms of art that can be confusing. Furthermore, some of the provisions in the will may not apply. To determine the proper plan going forward, you should seek legal counsel to ensure you understand how the law governs the process you’re entering.

You should know who the heirs are. Similar to the terms of the will, the heirs at law may not be ready ascertainable by simply reading the will. Your duty as the Executor is, primarily, to determine who the heirs are and what they get. Therefore, this is another area where you should seek legal counsel. You want to make sure that you’re getting this part correct. Otherwise, you could face liability.

Lastly, your first step with the court system will be to file the original will and apply to be the Executor—even though you’ve been named, you must be approved by the court. At this point, the estate is open, the probate process has begun, and your duties as Executor commence.


Related Articles:


If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Brenton S. Begley, Elder Law Attorney

Book Your FREE CONSULT Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Education Spotlight: Home Protection with Deeds

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

Estate Planning & Elder Law Attorney, Brenton Begley gives a great education moment to our team and you on how to protect your home with deeds. Schedule your FREE consult today: 704-749-9244, or online at: mcelderlaw.com/freeconsult.


If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Brenton S. Begley, Elder Law Attorney

Book Your FREE CONSULT Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Can my trust protect my retirement accounts?

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

When discussing an estate plan, there is almost always an important question from people around what to do with their retirement accounts.  They tend to be one of the major assets for an individual and it makes sense to want to protect them with a powerful legal tool like a trust.  However, while you are living you cannot place your retirement accounts directly into a trust.   But, as you may have guessed since we are still in the first paragraph, that does not mean the discussion stops there.  Even though the retirement accounts cannot go directly into the trust, it is worth strategizing to determine the best approach to ensure the protection and preservation of those assets.  The first question we have to address is whether those retirement accounts are tax deferred accounts or not.  

What is a tax deferred account?

Initially, we should be clear on what a tax deferred account is.  This refers to an account where you have not paid taxes on the money that has been placed into that account, an advantage afforded to accounts like your 401(k) or a Traditional IRA.  However, it is important to emphasize that it is tax deferred and not tax free.  It is deferred because someone, someday, is going to pay tax on that money when it is withdrawn.  That may be you paying tax on that money as it is withdrawn in your retirement, or it will be your beneficiaries paying tax on it as they are required to withdraw it after they inherit the account.

This is in contrast with an account such as a Roth IRA, where you have already paid tax on the money invested in the account.  If your retirement assets are housed in a Roth IRA currently, then you have a lot more flexibility with how you manage that account.  Even though the specific Roth IRA account cannot be placed into the trust, those assets you have invested in the Roth IRA can be moved into an account within the trust without having to pay the same penalties or level of tax that is due on a tax deferred account.

Can my tax deferred account be placed directly into a trust?

No, that tax deferred account cannot be transferred directly into your trust.  But that does not mean those assets are destined to count against you for medicaid qualification purposes, or that those assets do not have an avenue to protection and preservation. 

The main consideration at this stage is going to be defining your goal with those assets.  If your planning does not include medicaid qualification then your estate plan could rely on ensuring there are beneficiaries on your accounts so that the assets do avoid probate.  But it is worth considering the value of a program like long term care medicaid and the thousands of dollars that have to be spent every month for long term care.  Factoring in the value you receive compared to what it would cost to transfer your assets out of a retirement account into your trust allows you to reach a decision that makes the most sense for you.  

Are the tax consequences the same if I or my beneficiaries withdraw the assets from my tax deferred account?

The amount of tax paid is very likely to be different depending on who is withdrawing the assets.  As I stated at the outset here, someone has to pay the taxes on your retirement account someday.  The likely options are either you pay them during your life by withdrawing the assets yourself or that your beneficiaries pay them as they make required withdrawals after inheriting it.

Legislation was passed at the federal level in 2019, called the Secure Act, that requires beneficiaries of a tax deferred account to withdraw those inherited funds over the span of a ten year maximum period.  This ten year deadline is critical to be aware of for planning purposes because what that really means is that the assets in your tax deferred account may be more valuable to you than they will be to your beneficiaries when the rubber meets the road.  This is because you are not required as the initial investor to withdraw that entire asset over the course of ten years.  Additionally, it is assumed that when you are making most of your withdrawals from that account you are retired.  Making withdrawals during retirement means you are not earning additional income through a job and pushing your income tax rate to a higher level. 

However, the flip side is that your beneficiary is likely to receive this asset during their working years and therefore they will be taxed on these withdrawals at a higher rate as it is added to their income.  The ten year withdrawal requirement also limits the beneficiary’s ability to spread those withdrawals out over a longer period of time, consequently increasing the amount taken out each year and importantly, increasing the amount of taxable income to that individual. 

THE BIG QUESTION

Is it the right decision to move my assets out of their tax-deferred status so that I can place them in my trust?

Here comes the classic lawyer answer, it depends!  The answer here depends on your individual goals and circumstances.  We are only here to recommend tools that fit your needs and will benefit you.  There are absolutely scenarios where the right financial move is going to involve withdrawing those assets out of their tax-deferred status and placing them into your trust.  That is because with your assets in a trust you are possibly setting yourself up to qualify for long term care medicaid to assist with paying for your expenses, limiting your tax liability from any changes to the estate and gift tax, and protecting those assets from other creditors or lawsuits so that they make it to the hands of your loved ones.  If this question is one you are considering yourself, one of our attorneys would be happy to assess your specific situation and work with you to come to the decision that is best for you.


Related Articles:


If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (828) 233-5991.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

Jake Edwards, Attorney

Jake Edwards

Estate Planning & Elder Law Attorney

mcelderlaw.com

Hendersonville Office

136 S. King St. Hendersonville, NC 28792

828-233-5991

Now What? I’ve Been Appointed as Agent under a Power of Attorney. 4 Things to Consider.

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

Article 1: Fiduciary Instruction Series.

So, you’ve been named as somebody’s agent under power of attorney. That person (the “Principal”) is beginning to need your help making financial and healthcare decisions. What are you next steps?

1. Make Sure the Power of Attorney is Valid and Works
You first want to make sure the POA is valid. Financial POAs must be signed by the Principal and notarized, and should be recorded at the register of deeds in the county where the Principal resides. The healthcare POA must be signed by the principal and witness by two independent individuals in addition to being notarized.
The POAs should also be broad and specific. They must lay out each power given to the Agent and must define each power. It’s also important to ensure that you know when the power becomes effective I.e., whether the Principal must be considered “incompetent” before it can be used.

 
If the POAs are either invalid or fall short, you should seek to have them redone by an attorney while the Principal is in their right mind. Note, that this MUST be done with the Principal’s full knowledge and cooperation.

 
2. Make Sure the Power of Attorney is on File with the Relevant Entities
You don’t want any hitches in attempting to use the POA. Typically, the bank or life insurance company, or any other entity won’t let you use the POA until they’ be had their in-house attorneys review and approve them. Depending on the company, this can take days or weeks. Thus, it’s important to go ahead and put the POAs on file with each and every relevant entity, including the bank, primary physician, investment company, life insurance company, and the register of deeds. This is best done by mailing, emailing, or faxing a copy of the POA with a cover letter indicating your purposes for sending the document. 


3. Make Sure You Know Where Everything Is
It will be difficult to act on behalf of the Principal if you don’t know where they bank, where they have their life insurance, who their primary care physician is etc. Thus, you should figure out, by talking to the Principal, where everything is. You should compile a list and keep it with the POA document. This list should also include medications, who they use for tax preparation, their attorney, the funeral home ( if they’ve prepaid their funeral), their bank accounts and number, their credit card accounts, their driver’s license information, a copy of their birth certificate, a copy of their marriage license, if any, and a copy of their social security card. 

4. Speak to a Professional about Asset Protection
Lastly, you should seek the advice of a professional. There are many considerations when evaluating how to best act on behalf of someone who may not be able to act for themselves—from protecting assets to figuring out how to pay for long-term care. 


An experienced Elder Law attorney should be consulted, so that you may lay out a clear and workable plan to ensure you’re doing the right thing to protect the Principal’s assets and ensure that they receive the highest possible level of care.

This gives us the legal basis for the Ladybird Deed that we now know and love.


Related Articles:


If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Brenton S. Begley, Elder Law Attorney

Book Your FREE CONSULT Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Legality of the Ladybird Deed

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

I get the question all the time: is the Ladybird Deed legal in NC? The answer is yes. But, I don’t want you to simply take my word without any further information. So, in an effort to settle the question once and for all, let me give you the legal basis for the Ladybird Deed. But first, why question it at all?

Maybe you did a Google search for Ladybird deeds in NC. Maybe you were talking to your neighbor. But someone somewhere said that Ladybird Deeds aren’t legal in NC. But here we are saving homes every day with this wonderful tool. Why the discrepancy? Well, the problem is that the people posting these articles on the internet aren’t doing their homework. Likely, they scanned the statutes in NC to see if it mentions “Ladybird Deed” and didn’t find it. Thus, they declare that NC doesn’t allow the Ladybird Deed.

The problem is: we don’t have a statute for the Ladybird Deed. In fact, most of our property law in NC is not codified in statute. Our property law is predominantly derived from common law or judge made law (also known as “legal precedent”). See Statute of Wills, 32, Hen. 8, c. 1 (enacted in 1540).

With that out of the way, what precedent allows for the Ladybird Deed.  To recap, a Ladybird deed allows you to put a beneficiary on property (who you can change any time) without giving away any property interest). 

We can trace the roots all the way back to jolly old England. English common law allows for something called a “power of appointment.” When you think of power of appointment, the best example is something like designating a beneficiary on a life insurance policy (note: this is not exactly a power of appointment but is good enough for this analogy). On a life insurance policy, you can pick a beneficiary to get the death benefit. However, that’s not set in stone. You can change that beneficiary any time. This is  because you have the power to appoint whoever you want. A power of appointment is similar.

Per N.C.G.S. Section 4‑1, adopted in 1778, English common law is the law of the land in NC unless something says otherwise. There are no laws in NC preventing a power of appointment. Thus, the next question is: what precedent allows for a power of appointment on a deed?

This is a legitimate question because deeds convey interest. Usually, when a deed is executed, something (some right or interest in real property) is given. If the property is given to your beneficiary, then how do you retain a power of appointment. It’s like giving away your life insurance policy, yet retaining the power to pick the beneficiary. Luckily, both issues were solved in a super old case: Troy v. Troy, 60 N.C. 624 (1864).

Troy basically said that you can: 1. assign a beneficiary to property without giving them any interest; and 2. maintain a power to appoint any other beneficiary at any time without another person’s consent.

This gives us the legal basis for the Ladybird Deed that we now know and love.


Related Articles:


If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Brenton S. Begley, Elder Law Attorney

Book Your FREE CONSULT Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

How Could Today’s Cancel Culture and Political Climate Affect Your Estate Plan?

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

“With the constant challenges to free speech and rumors of drastically increasing the estate and gift tax, how does this affect you and your family?”

Trust me, I am all too familiar with challenges to free speech. It’s not specifically legal challenges anymore but the tendency for unpopular opinions to be shouted down and the people behind them to be cancelled from social media and somewhat erased or made irrelevant. How does this factor into estate planning? My fear is that the termination of dissenting political views may pave way to an unopposed government agenda which can include higher income tax, estate and gift tax and other regulations that could drastically affect the landscape of estate planning. The plan that was right for you 5 years ago may provide no protections against the coming tide of legislation.

There have been rumblings that the current administration wants to drastically reduce the estate and gift tax exemption. This could mean that almost one half (1/2) of your estate could be eaten up by taxes and go to the State. This country was built on the premise that you could keep your hard work and property in the family. You could pass along what you owned to your loved ones. In a climate where any dissenting opinion is stamped out and the person with that opinion barred from the public forum, anything is possible and more likely, probable. As an estate planning and elder law attorney, we have defenses against this.

Trusts:

Trusts can maximize your taxable exemption and therefore help minimize or avoid the death tax. Trusts also allow any property contained within, including real estate, to preserve a step-up in basis. A step-up in basis means that you will avoid unnecessary capital gains tax should your beneficiaries sell the property. You can appoint a trustee to be over your assets and distribute your assets after death. Trusts are also private documents and not administered through public court proceedings as opposed to Wills which do become public record.

Trusts are our secret weapon against the threats of high taxation from many angles and also allow you the ultimate in control of assets even beyond the grave for years into the future. You write the story of your family’s legacy.

If we can help you preserve assets before major changes in the law we would be glad to do so and would offer a FREE consult to sit down and discuss asset protection. Give s a call to schedule your free consult today or schedule online at: mcelderlaw.com. For a list of local numbers to our offices see below:

Charlotte: 704-749-9244

Shelby: 704-259-7040

Hendersonville: 828-233-5991

Please don’t wait ‘til it’s too late. Call McIntyre Elder Law today.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

Greg McIntyre Elder Law Attorney

Greg McIntyre Elder Law Attorney

written by:

Greg McIntyre

Elder Law Attorney

704-749-9244

greg@mcelderlaw.com

How do I Qualify My Loved One for Nursing Home Medicaid in NC?

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

Don’t worry… We can help.

   So, you’re one of the few people who understand that 70% of individuals over 65 will need long-term care. You also understand that figure to mean that you have a 70% chance of paying tens of thousands of dollars a month in long-term care. Lastly, you’re someone who’s worked hard their whole lives and you don’t want to see everything you worked hard for go to some facility. Thus, you know that you should plan to use Medicaid to pay for long-term care. The only issue is, how do you qualify?

            Before we talk about qualification, let’s clear the air. First, Medicaid is a system that you’ve contributed to your whole life. It’s not assistance, it’s reimbursement.  Second, those who have Medicaid pay for their long-term care are not forced to some “Medicaid facility.” That’s a myth.

            Now that we’ve cleared the air, lets talk assets. Take stock of your assets and break them down into the following categories: 1. Financial Assets e.g. cash, accounts, investments; 2. Real property; 3. Titled personal property; and 4. Other miscellaneous assets e.g. businesses and business equipment. The following rules apply to those categories:

 Finances or financial assets (not counting income unreceived) is considered to be a countable asset for Medicaid purposes. This means that it is an available resource that Medicaid would “count against” the applicant.

            Real Property: Real property is generally considered to be a countable asset except for the following: a. the personal residence (where the applicant intends to remain or intends to return) ; b. life estate interests; and c. tenants in common interests, also known as a less than 100% interest in property.

            Business interests: Businesses are countable assets; however, the working capital, inventory, and equipment do not count. Thus, the business’s value is what is countable.

            Personal Items: personal items are generally not countable unless they are a titled asset, or they are some sort of currency or currency equivalent like gold or silver. With respect to titled assets, an applicant and spouse is allowed to own ONE vehicle. 

Note that the applicant can only have up to $2,000.00 worth of countable assets in their name. The applicant’s spouse can only have up to roughly $126,800.00 worth of countable assets in their name.

So, what can you do if you’re over the threshold? The answer is: it depends. It’s different depending on whether you’re in a crisis i.e. need care immediately or if you’re pre-planning. If you’re pre-planning you have many options. Some of those options may be trusts or certain deed work that can exempt your property from being considered a countable asset.


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If you’re in a crisis situation, then the plan is a little different. There are many options that you can use spend-down the countable assets while preserving the value. If you have questions about Medicaid Qualification, call the experienced attorneys at McIntyre Elder Law (704) 259-7040.

Schedule Free Consult

IN PERSON . VIDEO CONSULT . PHONE CONSULT

Book Your FREE CONSULT Today!

Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

ADMISSION INTO A NURSING HOME: What am I signing?

in Articles, Attorney Advisor Series by Greg McIntyre Leave a comment

Under Federal law and the Nursing Home Reform Act of 1987, virtually all nursing facilities nationwide must meet specific requirements and adhere to certain standards. Most importantly, federal law prohibits these facilities from requiring financial guarantees from third party individuals.  In other words, a facility cannot require a resident’s family member to sign or co-sign an agreement to take on financial liability incurred by the resident. Nonetheless, there is a long history of facilities using admission agreements that do just that.

As a condition of admission, family members and friends of prospective residents are often given admission agreements, and then instructed to sign those admission agreements. Sadly, a resident’s family members and friends often have no realistic opportunity to understand or to even read the admission agreements before signing them. Facilities have been known to then use those guarantees to pressure a family member or friend into paying bills for which the family member or friend should not be responsible. 

Many facilities use forms that are confusing and deceptive, even to some attorneys. For example, many facilities will use express language disclaiming any notion that the agreement operates as a third-party guaranty, only to turn around and enforce the agreement as such.  One of the most common strategies employed by nursing facilities today include the use of admission agreements that obligate a “responsible party” or “financial legal representative” to use the resident’s money to pay medical expenses. Then, if the resident incurs a large bill prior to death or if the resident’s bills remain unpaid, the facility will bring suit against the third-party representative in an attempt to hold them personally liable. Lawsuits such as these are not only questionable from a professional and ethical perspective, but also conflict with the general rule that duly appointed agents are not liable for the debts of a principal.

In sum, be aware of ambiguous language and terms within a nursing home contract. Does the contract serve to admit the resident into the facility and detail the care and services provided?  Or, does it attempt to impose a legal duty on a family member unlawfully? Does it appear to do both? If it’s not obvious what the contract does, you should be hesitant to sign. A credible facility will be considerate of the family’s need to understand the operative language. Pertinent federal law includes but is not limited to: 42 C.F.R § 483.15(a)(3), 42 U.S.C. §§ 1395i-3 (c)(5)(A)(ii) and 1396 r(c)(5)(A)(2).

Here at McIntyre Elder Law, we regularly assist individuals and their family members with navigating placement of their loved ones in a long-term care situation. If you or your family have been the target of a lawsuit under similar circumstances, please do not hesitate to contact our professional team. Our mission is to help seniors maintain their assets and preserve their legacies.


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