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Pre-Need Funeral Planning

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The planning tool that I want to highlight this week is known as Pre-Need Funeral Planning. This is a great benefits planning tool for long-term care Medicaid planning. In essence, those who choose to participate in this pre-planning opportunity can place $10,000 to $15,000 in a trust or insurance account with a reputable funeral home and that money is exempt from the Medicaid spend down. The unused portion is then generally distributed directly to the heirs/children of the deceased. In order to gain more insight into this process, I interviewed Cecil Burton, a long-time friend of mine and owner of Cecil M. Burton Funeral Home and Crematory. Cecil’s been in this area of practice for years now, and from him you can learn about the importance of pre-need funeral planning and why it’s a vital part of planning as you age.

How long have you been in the funeral business?
Close to 40 years. I’m third generation in this. I grew up in it.

How did you get into this industry?
I attended Gupton-Jones College of Mortuary Science in Atlanta, but then got my funeral and embalming license, so I’m an embalming and funeral veteran. Then after that I got my crematory license and opened my own crematory about six years ago, so I’m a certified crematory operator.

Why is it important to choose the right person to do your funeral planning and to do pre-needs funeral planning?
Well, it’s essential that you pick the right funeral home because we’re just like any profession, we have our good people and our bad people. 90% of them are good and do a good job, but you need to go and inspect the facilities and make sure that the people have their licenses and are certified to do pre-planning because in the state of North Carolina you have to have a license to do pre-planned funerals.

Full Video of interview on Pre-Needs Planning Here:

In order to be a licensed funeral rep, you have to have two licenses to be able to do a pre-planned funeral. We have a lot of people who are pre-planning their funeral now just for Medicaid reasons, the spend down. We put the money into an insurance trust where it gets interest on your money but it’s tax-free interest. We also do business with people who just want to pick out their stuff and lock in the price. We do that, too. You can pick your stuff, lock in the price, and it doesn’t matter how long it takes, it’s taken care of.

You’ve handled funerals for my family and many families in this area, in Cleveland County. Just to dispel the myths of a funeral home and things like that, it can really be – in my mind – it’s almost a ministry. You’re meeting and greeting families and helping them through an extremely important time in their lives, wouldn’t you say?

Our goal is to help them. It is a ministry, that’s what we say about our occupation. And what we want to do is help the family, guide them through the process, but also celebrate the life and honor the person who passed away, and help the family to honor the life that lived. That’s what we try to do and help them go through all the steps.

If somebody comes to you and says, “McIntyre at McIntyre Elder Law told me to come over here and I need to do a pre-needs funeral plan,” go through the steps; what would you do for that person?
Well, we’d find out what their needs are. Sometimes they have brothers or sisters who want to be in the process of picking out a casket or the vault for the cremation, and they can’t be here physically, so we’d help them. Then sometimes people want to just put money aside. We put that into a trust, and we trust 100% of the money and that way the money will get tax-free interest until the person passes away. For Medicaid, it has to be an irrevocable trust. This means they divorce themselves totally from that money; they can’t get that money out until that person dies. The money will sit in interest and then if something does happen, they have the principle plus interest to pick out the casket, the vault for cremation services when the brothers and sisters can be in on it.

Now, we have some people where the brothers and sisters are local and they want to go ahead, come in, and pick out the casket and vault for the cremation services to go ahead and pay for it, lock in the price. We do it that way also. That’s called inflation proof, which means you’re locking in the price. If you just put money in, it’s called a standard contract, which is the second type. Both of them for Medicaid have to be irrevocable. If you’re not doing Medicaid, you can always make it revocable meaning you can get the money out anytime you want, interest plus principle.

But it’s still your money, it’s still a countable asset under the Medicaid long-term care payment rules, and you’d have to deal with that aspect of it.
Right. One thing about a revocable contract, you can always make it irrevocable down the road. You can roll it over into irrevocable trust, but if it’s irrevocable you cannot roll it back. You’d have to get a judge.

How can people contact you if they want to know more information?
They can call my office at 704-480-8383.

Call me if you have any questions:

Greg McIntyreGreg_Full
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby

Health and Rehabilitation at Peak Resources

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In my never-ending quest to discover all available options to seniors, I had the privilege of sitting down with Kris Thompson, the Executive Director at Peak Resources. We spoke briefly about the services that Peak Resources offers, what families and seniors should look for when choosing a nursing home, and the many benefits awarded to individuals who become a part of this incredible system.

See the full video interview here:


What are your responsibilities as Executive Director at Peak Resources?
I’m pretty much responsible for everything that goes on at the facility. The financial part, the business part, making sure we meet at the rules and regulations, which in healthcare and with nursing homes, there is an awful lot. I’m also involved in the healthcare part of it. There is a director of nursing in the department of nursing that oversees her staff and makes sure that the healthcare aspects of the nursing home are met.
What should a senior look for when choosing a nursing facility? What should the family of the senior look for?

Location. Everyone talks about real estate, which is very important. It’s crucial that you’re going to feel comfortable visiting, so you want to be close. If you have to drive across town and deal with a lot of traffic, that’s probably going to be burden and a factor that keeps you from visiting. Individuals who enter nursing homes shouldn’t lose contact with their family members. I would also recommend that you go through the facility and tour, just do a walk-through. Most facilities would be glad to do that and have a representative walk through with you to answer questions and point out things that the facility offers. As you’re walking around, look for common sense things such as this:


  • Are there any pervasive odors that you notice throughout the facility?
  • Are the residents of the facility happy? Are they socializing and doing different activities? 
  • Are the staff members happy? If they are happy with their job, that is going to be reflected in their performance and how they interact with residents. 

Positive communication is one of the most crucial components that a nursing home resident can have. Is it a warm and welcoming environment? That’s always a good thing. 


All facilities are also required to have their 25/67, which is their annual survey where the state comes in with nurses, pharmacists, and dietitians. It is state required to make sure that the employees are doing their job. You won’t see a federal survey every year, but you’re guaranteed that each year the state one will be conducted. They come in and look at all of those rules and regulations, they are making sure that the residents are getting the treatment that they need. They ensure that they are not being taken advantage of and that they can have access to their money right there. 

Most facilities have the shopping aspect. On Fridays, we take everyone to the Wal-Mart to go out shopping, and if the resident doesn’t feel like going out, he/she can give the list to an employee who is managing the funds to go pick up personal items that the resident needs. 
Not all nursing homes are health and rehab facilities, is that correct? 

Right, and that’s usually part of the Medicare benefits. Most people have Medicaid Part A or Part B. That’s going to cover if they’re coming in from the hospital. For most people right now, unless it’s coming through a bundle payment part of Medicare, you’re required to have a three-day hospital stay. You want to make sure that if you are in the hospital, that it is a stay and not an observation because then you are qualified to use your Medicaid Part A benefits. If you meet that criteria – of which therapy or wound care is a part – you can use your Medicaid Part A benefits. 

So if you’re going to be there at the facility 100 days, that first 20 is covered at 100%. The next 80 days is paid 80%, so there is a 20% co-pay. The supplement would pay that 80% if you have the supplement. Now, if you have long-term care insurance, it would pick up for that deficit and pay. 
Does the supplement stop paying if the prognosis of the patient worsens?


Yes. When it comes to the Medicare criteria, the therapist will set up goals, such as, “I want him to be able to walk 10 feet in 5 days”. So if the patient is not increasing and making progress – and there’s a little bit of leeway there. Some people might have other stuff going on. They say you can refuse three times, but after that the therapy is going to be required, which is going to drop the Medicare Aid benefits and the supplement, as well. 
Say if it’s a 10-bed facility, maybe 50% to 80% of the beds are certified, and that can also be with Part A, too. You can have them duly certified with Medicaid and Medicare, or one of each. Of course, if you have Medicare and you’re not in the certified bed, Medicare is not going to pay, so the home would advise you of that. 


You meet with families from time to time, and you have folks at the facility who are trained to meet with the families to ensure that they have their affairs in order and can find a way to pay for the services and qualify them for the process. Is that right? 

Yes, one of the federal regulations is that you have to have  a social worker, and with that they do set up systems. You have to have a business manager that takes care of the billing. The social worker will deal with community resources, and there are options there as far as to help pay or help get them set up in the system. For some families, this is the first time that they are going through the process. Their parents have aged and they have reached that threshold where they need to enter the system. For many, it is a new and unfamiliar process. It can be very complicated, and considering those rules and regulations, they need to know when they meet the qualifications and how to determine eligibility. 

Do you find that most families have planned ahead for this type of situation? 

No, and I think people tend to put it off and not think that this is going to happen to them. If you look at statistics, you have a one in three chance of being in a skilled nursing facility. A lot has changed now because we do have 20-22% of our residents that are short-term that may come for that Medicare Part A, they get the rehabilitation, and then they’re able to go back home to live with their family. Others that return home with receive some type of home health care and sitter. There are a lot of good supports out there. 

However, if someone at the facility feels that there is going to be what is known as an unsafe discharge, meaning the individual is well enough to go back home, but perhaps will not be taken care of the way he/she should in the home, then we are required to notify Adult Protective Services (APS). They would come in and do a home assessment to make sure that it is a safe environment for the senior citizen. Someone has to be home to take care of the senior, administer medication, etc. APS checks all of that out, and if they do not like what they see in the assessment, they’ll step in. That’s not meant to be a big brother system; this is meant to protect the seniors and get their needs met. 


If you would like to know more about Peak Resources or speak to one of their employees, you can contact them by phone at 704-482-5396. They are located at 1101 N. Morgan Street in Shelby.

Call me if you have any questions:

Greg McIntyreGreg_Full
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby















ACCESS Care with Jane Wright

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Some members of our Elder Law family recently participated in the health fair at the Neal Senior Center in Shelby. This is the second year in a row that our Elder Law office has participated in the event and we even set up a booth in order to talk to seniors about health care options. The seniors that go get to connect with other professional service providers right on the spot, which is great for them.

Communication with seniors is key to ensuring that they are fully knowledgeable about the healthcare options available to them. One woman that I had the pleasure of interviewing who subscribes to that school of thought is Jane Wright of Care Solutions. Care Solutions in Shelby is located across from the formerly-known Cleveland Regional Medical Center, now known as Carolina’s Healthcare System Cleveland. We spoke a bit about ACCESS Healthcare, of which Jane is the President. This is a group that meets and is made up of affiliates. Jane touched on the important issues facing seniors, and what ACCESS does to benefit seniors.

ACCESS is one of the older groups in Cleveland County that has been meeting for 26 years. At its core, it is a large group of healthcare professionals that work to help seniors. They started off with some of the best people in Cleveland County and are running strong. It started around a cup of coffee, and Suzi Kennedy – who I had the pleasure of interviewing not long ago – was an instrumental part of the group’s kick-off. It’s a group that gets together once per month to share in round-table fashion how the respective agencies that comprise the group serve the elder population. They discuss things that occur in the community that need to be addressed, such as elder dental care and other matters.

Some of the matters that they discuss have been on-going. For instance, in 1992, the United Way of Cleveland County took a survey that was known as a needs assessment. That survey revealed three particular areas that needed to be addressed in the county. The first was aging well, the second was senior housing, and the third was care giving. We know that aging well and illness prevention has been addressed and is still being addressed by many different agencies. But the Senior Center is a wellness place where people can go to exercise, socialize, and to have a good, hot lunch. They also offer line dancing and senior games. The Senior Center is a highly organized place that should be more utilized in Cleveland County.

Another option for seniors is the YMCA, which promoted diabetes prevention. This county is highly advantaged due to the fact that there have been so many people for decades who have been willing to give their time to create locations where care givers can go, such as Care Solutions. In addition to the many facilities, seniors have infinite opportunities to drop off their old prescription medicine, such as at the Senior Center. Once they drop off the medication, it is taken care of swiftly and efficiently so that the medication does not find its way into water supplies or anywhere else where it might harm others.


Advantages of ACCESS

We are learning from each other and we all sometimes have the same clients, and we know who to refer to for a certain thing. Everybody is so different, each individual story is different. So when they call us, I have to listen and think like a database. I have to process, “What do I tell this individual?”

Instead of having everyone out there doing their own thing, ACCESS provides the members the ability to meet up every four weeks and to discuss what they have been doing and what methods have worked when it comes to senior healthcare. The goal is the same between ACCESS members, and effectively delivers accountability.

Personally, I am in the central part of Cleveland County, so the professionals that I refer the seniors to are going to be a bit different due to my location. I therefore want to know who the professionals are and I want to know the quality of work they do. I will hear back, so the beauty of it is that I get to establish relationships with the people at these facilities, such as Bayada. It is just invaluable that we meet and get to know who is taking care of the seniors.


Funding for Care Solutions

We are funded mainly by the hospital. They are our lifeline. They give us our building, our space, our training, all our technology such as computers. They also pay our employees and give us wonderful benefits. They are there for us, plain and simple.

Our manager is Anzie Horn, who is wonderfully connected to the community. We are also funded by Isothermal Planning and Development, which means it’s state dollars that come down from Isothermal to us, so we get that. And then revenues that we take in from private care management, which is very little. We’re still working on our private market, but we are available to come out to those people that can afford to pay. We can meet people at any point. We provide care management to the general population, and we have about five different programs that we manage. The main one that brings in revenue is CAP/DA, and that’s the Community Alternative Program for Disabled Adults. That is a Medicaid program, and if there’s two in the home, the beauty is it just looks at one person’s income. They do have to be nursing home level and do have to have family support. So they can get some hours of help, which we call in-home aid hours. They also get supplies and the person that comes from the agency of their choice can help them do the things that they need to have done in order to be able to live in the home. That’s a Medicaid state program that we manage.


Other Programs

We also manage a respite program, which is very close to my heart because I get to manage that one. We recognize that family caregivers who are caring for members in their house 24 hours a day, 7 days a week need a break. There’s a statistic floating out there that around 40% of caregivers pre-decease the person they’re caring for. It’s very important, but it’s an easy program to set up and get going. We served about 40 families last year and were able to give those family care givers the break they needed. We allocate out and give a voucher for these families to choose in-home aid from one of the 50 providers that we have to adult day health out at Life Enrichment.

The other program allows us to serve the people who fall through the cracks. There are many individuals who cannot get Medicaid, yet they may make $1 or $50, to $100 over the Medicaid guideline. They can also have care management under what’s called Community Care Management. If the individual is 60 or above, a nurse and a social worker can come out, evaluate his/her situation, and see what the individual needs to link him/her with the necessary services.

ACCESS is an impressive networking group that spreads and shares ideas among members that is prompted by a passion for senior and elder care. Individuals – even seniors – who are interested in being a part of this group can call Care Solutions, which is the portal of entry for care giving and elder care. This was formed by ACCESS and the project took 10 years. The number is 980-487-4777. Callers will speak to a live person, not an answering machine.

It only costs $10 a year to participate, which is an excellent fee for the benefits that are awarded in being a part of this fantastic group. Many people don’t know about these programs, and they are overwhelmed by how to care for their senior loved ones. They’re overworked and stressed, and sometimes the world of medical benefits can be a complicated systems to navigate. Fortunately, there are people like Jane and the members of ACCESS who are trying to make elder care that much easier and more enjoyable for everyone involved.

Call me if you have any questions:

Greg McIntyreGreg_Full
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby

Trading Places & Role Reversals: When Children Have to Take Care of Parents & What to Do About It.

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Let’s talk about role reversals. About trading places. You’ve seen that movie Trading Places with Eddie Murphy and Dan Akroyd. That’s a good movie, right?

Well, here we’re talking about a little different kind of trading places.

More and more today, children are taking care of aging parents. Your parents raise you, and then you end up having to take care of one or both of them as they age. And how should you prepare for that? What should you do? What should the parents do?

Just in case that transition needs to happen. What should the children do to ensure they have the tools to handle mom and dad’s affairs? Your parents raise you, they feed you, they nurture you, they clothe and love you. Cook for you. Change your dirty diapers, right?

They worry to death about you, all the time. I’m sure I worried my parents to death, especially when I was a teenager. They take you to church. Work their fingers to the bone to make money to take care of you. Send you to college, some parents, even send their kids to college.

I think we pamper our kids so much now. We don’t let them be independent early enough. But they take you on vacation, just like my parents did.

You know, they just do all kinds of things for you. I was just looking – and thank you to my wife, by the way, Stephanie, for doing some research in preparation for this article for me. She was looking up and we were talking about some crazy outlandish things that parents have done for their children.

And she was looking at a couple different sources. According to Women’s Day magazine, in April 2010, mother, Nicki Carpenter, in Yazoo City, Mississippi, placed mattresses over her three sons, laid down on top of them during a tornado, and she ended up unfortunately passing herself but saved her kids to do that.

That’s the extraordinary things a mother will do for her children.

Angela Cavalo pulled her 1964 Chevy Impala off her son. We’ve all heard about that one, right? The adrenaline, she went and pulled it off her son after the jack collapsed and the car fell on him.

Mothers, parents, can just do amazing things to take care of and protect their children. Well, I think we should return the favor.

And we’ve got to know that those things are coming, that day is coming, potentially.

What I’d love to focus on here is that role reversal. Taking care of parents. How do we do it? What kind of legal documents need to be in place to make sure you can handle bank accounts, make healthcare decisions. Should a living will be in place? A will?

That’s an important decision: Powers of Attorneys and other planning documents. Should we do some deed planning to make sure property is passing the right way? Because if you wait too late, you’re in a guardianship situation. And that’s a situation that we want to avoid. Not that guardianships are terrible things, they just take longer to put in place and they are more costly to put in place.

If you wait until the point that mom or dad are incapacitated which is when you need help the most, sometimes you’re not in the condition to give consent under the law. So we want to put these important documents in place, at a low cost, ahead of time for the senior and for the children who might be taking care of those seniors.

Just to give you some Alzheimer’s and Dementia facts, that’s such a powerful thing these days and just affects so many seniors.

It’s the 6th leading cause of death in the US. One in three seniors die with Alzheimer’s or some other type of dementia, so we want to plan ahead for this. Almost two- thirds of Americans with Alzheimer’s are women. So women are especially in danger. I don’t know why that is.

It’s the only one of the top 10 causes of death in the US that cannot be prevented or slowed. It cannot be cured, prevented, or slowed. The only one. We know so little about it.

Women statistically live longer, perhaps that’s one of the reasons. Perhaps that’s one of the reasons that they’re living longer.

And women or men can live a long time with the disease. Your body can far outlive your mind in that situation.

What you’re talking about a lot of times is needing care in a secure facility, a special facility that deals with Alzheimer’s and Dementia patients and you need to plan for that. You need to prepare for the costs that are involved for providing specialized care while also protecting assets to prevent everything from being spent down.

Senior want to stay independent… Who wouldn’t? We want the senior to stay independent for as long as possible, no matter what the situation is. We want them to stay in control, of their assets and their lives.

But we want to plan for the situation, should the senior need any kind of care. And what should you have in place ahead of time to ensure that you’ve protected those things you’ve worked for your entire life and make sure you get the best care and your children, for instance, are able to go through that role reversal? You go ahead and appoint them as the power of attorney to handle bank accounts, cable bill, power bill, handle protection of the home, pay the mortgage, whatever needs to be done.

That we go ahead and have those things in place. Even a husband and a wife should have those things in place for each other, so that they can handle each other’s accounts.

Let’s say there’s a husband and wife, something happens, there’s an accident. And they’re not really that old, it could happen at any age. It could happen to me. But the other spouse, they need constant care.

In an ideal situation, the spouse who is well and healthy will be there to look after them. I know that doesn’t always happen. But if they love each other and they’re devoted to each other, they would be there to look after the injured or incapacitate spouse. And it may be that way the rest of their life.

If you have the healthcare powers of attorney in place, so that the doctors, healthcare facilities, professionals know exactly who to look at to make decisions. There’s no arguing among siblings, among kids, whoever on who’s going to make those healthcare decisions.

So there’s no confusion. You have one chief appointed among all the Indians and you’re able to make those important healthcare decisions in a very timely manner. Sometimes time means life or death when decisions are made on different healthcare issues that need to be made regarding treatment.

So you want to have important documents in place ahead of time. General durable powers of attorney so that they husband or wife can handle accounts for each other.

My wife can’t handle my cellphone bill because I set it up. And whoever the carrier might be wouldn’t talk to her and wouldn’t allow her to change things unless she had access to do it. So that’s a simple example. Banks can even have much more stringent – and rightly so – measures in place to prevent the wrong person from coming in and moving money from your accounts or handling your accounts.

Even calling a doctor’s office now, you can’t do that really.

HIPAA regulations are so strict and tight now on who they’ll give information out to or give medical records to, so that’s an important reason to go ahead and have those things in place ahead of time.

So that’s what we want to do, is help seniors at a very low cost, comparatively, to not waiting. When it really costs or when you really understand what I’m talking about and what you need, is sometimes when it’s too late.

Say a person who’s an older person, they have more than one child, and something happens to them. They have a heart attack. They have a stroke. They’re not totally incapacitated but they can’t look after themselves.


Could a Parents Actions, Documents and Decisions Be Challenged?

Yes! Children could come in and challenge whether a senior is of sound mind when they draft important legal documents. That is why planning ahead and placing important legal documents in place while one is still very sharp is very important.

Time is one of the enemies. I talk about titanic mistakes in elder law. That’s one of the enemies, is time. Waiting. Because people are motivated by fear, generally, and when they know that time crunch is on and they need to do something, it may be too late.

That’s why I do a radio show, write articles, give talks to churches, to other groups, all the time. I want to educated people so they act out of knowledge and logic; not fear and panic. It cost less to plan ahead and you’ve got these things done ahead of time, that way you don’t find yourself in a time crunch saying “oh my gosh, we need to act and do something now because husband, wife, mom, or dad is in this emergency situation!”

And what if the situation is a parent, again, older parent, becomes ill, incapacitated, can’t take care of themselves, and heaven forbid, what if the children argue, “well I don’t want to do it, you do it?” What can happen then?

So what you’re talking about is kind of like a hot potato, nobody wants that responsibility. Or sometimes you have the opposite. Multiple people want that responsibility. And then who are the healthcare providers supposed to listen to? Do we listen to this sister or this sister? Or this daughter or this daughter?

You can save your children guilt-ridden decisions and trouble by appointing, as I like to say, a chief among all the Indians. And that doesn’t mean that’s the final person. You could appoint a couple very responsible children to be “co” or work together.

Or you could, I like to say, have a deep bench. Have one person up to bat, making those decisions. Should that person be unavailable or unable to do it, or refuse to make those decisions, then you have somebody else appointed who comes off the bench, the next child in line, to make those decisions, for instance. And you can go as deep as you want to on the bench there, appointing those people.

That way those documents grow with you the rest of your life.

This is a sensitive and somber topic but some of the issues we deal with are. I deal with these and other issues on a daily basis. My staff deals with these issues on a daily basis.

And we’d love to meet with you. We’d be glad to sit down, hear your situation, and advise you honestly and accordingly.

Luckily, we have raving fans, and that’s what we want! We want to be your elder law attorney and advisor for generations. That’s what my goal is. I want you to be able to call me with any questions. I routinely give my cellphone number to clients, so they can call me anytime, day or night.

I say I’m always on, and I am! Because I care so much about my clients. And it’s how I take care of my family. And I care that much about my family and yours.


What if my Will and other Documents were drafted in another State?

Have an elder law attorney review these documents to make sure they have the fundamental elements for a will in North Carolina or your State. For instance, two people, in North Carolina, two witnesses and a notary public have to see you sign the will by line of sight. That means, can’t have looked away. Can’t be around the corner, can’t be in the next room.

They have to see you put pen to paper and sign it, along with a notary. That’s three people sitting there that need to see that will signed. If not, then it’s invalid. And it could be invalidated in a court of law, in North Carolina.

And there’s a number of situations where that might happen. It may not be challenged, but it can be. It needs to say that you’re of sound mind of body. It needs to say that you’re over 18 years old.

So many people will go to online sources or “oh we did this at the plant.” I see those all the time where we may have to rework something.

I look at wills of people that come from out of state, and some of them are okay. Some of them apply under the North Carolina statutes. And I say, look, it’s up to snuff. It’s up to you if you want to redraft it because there are some changes you want to make, but it looks like it’s going to do its job.


But “All I Want/Need is a Simple Will.”

But other things you don’t think about, and there is no such thing as a simple will. I love that saying, and it’s so true. What happens if you’re giving a large amount of money or property or something like that to a loved one and they’re on some type of governmental benefit or support. And that gift is going to totally disqualify them for that benefit or support.

What happens in that situation? Well, I’ll tell you. Our wills, we allow for a supplemental needs trust to be set up in that situation, and we go ahead and outline that in the will. It’s not a one page or two page will.

But we set it up so that doesn’t happen. So that it could drop directly into a supplemental needs trust to provide for that person’s health and well-being and not disqualify them for any governmental benefit they might be receiving.

Benefits like SSI, Medicare or Medicaid.

Any or all of the above. Whatever you might be drawing, whatever the situation might be, whatever the benefit might be, you’ll want to take a look at the rules of that benefit before you receive that gift. Or else, the only other option that person might have is renouncing that gift and not taking it, period.

Whereas it could’ve drop into a supplemental needs trust that’s automatically created by your will to make sure that it provides for that person’s health and well-being, pays money to take care of that person, while not disqualifying them from the governmental benefit that they’re receiving.


After someone passes away should I keep their paperwork?

Save it.

I try to save everything. It’s a just in case measure. Save it or scan it, save it digitally. I’m a huge fan of saving things digitally so we always have an exact copy to reproduce. But save it. Put it in a file drawer, put it in a desk draw, scan it, keep it on a thumb drive. Put it on a CD. Make sure you have it, just in case.


What does the word “PROBATE” mean? Is it something simple?

I think it is simple. Let me break it down for you the way I have it broken down in my mind. I like to boil things down.

To probate something, you’d need a will. So if there is a valid will and you file it, not just record it but file it, open an estate at the courthouse for probate, that’s the probate process. If there’s a will.

If there’s no will, then that estate can be administered. But you’re still opening an estate at the courthouse, saying look there’s no will, we need to appoint an administrator. It needs to be this family member, this is why.

Then you’re under what’s called the intestate succession statutes, in North Carolina, which our lawmakers, who I know we all know they have our best interest at heart and they’ve all set up statutes to pass things to us the way we want.

However, with no will, you may not pass property under State statutes the way you might have liked. I love passing things outside of administration and probate. If I set a plan up correctly ahead of time, I hope the last thing you or your loved ones are going to have to worry about is going to be a probate process.

If I plan we are going to think about transferrable upon death assets. Your home, your land. Everything is going to be able to go straight where it’s supposed to, just like an insurance policy.

Because when you open up the probate process, what do you have to do? You have to advertise it in the paper once every week for four weeks, and then it’s got to remain open for liens to come in for 90 days.

That’s the legal notices you see in the paper. So why would you want to open up everything you’ve worked for your entire life to be taken away by some lien? When you can pass it directly, transferrable upon death, to a loved one. And there are simple and legal ways to do just that.

If a loved one has passed, when I’ve done a correct estate plan, and we’ve done transferrable upon death assets, for the most part, I’ll sit down with the family, and while it’s a sad time, I love easing their pain and making it easier for them. Because all I have to do is reassure them that yes, everything has automatically passed down through the family as your loved one intended. No, you don’t have to go to the courthouse to probate the will.

And we’ll sit and talk for 30 minutes, an hour. But in the end, if I’ve done it right, the answer is: “Everything is done.” They love the fact that they don’t have to go to the courthouse. They don’t have to probate or administer the estate. They don’t have to do anything. It’s done. We did it ahead of time.

And they don’t have anything left to do.


Ending on a Positive Note: A Letter from Mother to Daughter:

I love ending on a positive note, but I want to read this letter.

It’s a letter from a mother to a daughter. And it goes with my thoughts about role reversal or trading places. And how many people are suffering or diagnosed with Alzheimer’s and Dementia:

“My dear girl, the day you see I’m getting old, I ask you to please be patient, but most of all, try to understand what I’m going through. If when we talk, I repeat the same thing a thousand times, don’t interrupt to say: “You said the same thing a minute ago”… Just listen, please. Try to remember the times when you were little and I would read the same story night after night until you would fall asleep. When I don’t want to take a bath, don’t be mad and don’t embarrass me. Remember when I had to run after you making excuses and trying to get you to take a shower when you were just a girl? When you see how ignorant I am when it comes to new technology, give me the time to learn and don’t look at me that way… remember, honey, I patiently taught you how to do many things like eating appropriately, getting dressed, combing your hair and dealing with life’s issues every day… the day you see I’m getting old, I ask you to please be patient, but most of all, try to understand what I’m going through. If I occasionally lose track of what we’re talking about, give me the time to remember, and if I can’t, don’t be nervous, impatient or arrogant. Just know in your heart that the most important thing for me is to be with you. And when my old, tired legs don’t let me move as quickly as before, give me your hand the same way that I offered mine to you when you first walked. When those days come, don’t feel sad… just be with me, and understand me while I get to the end of my life with love. I’ll cherish and thank you for the gift of time and joy we shared. With a big smile and the huge love I’ve always had for you, I just want to say, I love you… my darling daughter.”

Call my office and mention code word: “BLOG” and we will schedule you and your family a FREE strategy session with me.

Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby




Your Independence Day!

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How We Give Seniors Their Independence Day

We just celebrated our country’s 239th birthday on July 4th. That’s what Independence Day means to us. It’s celebrating the birth of our nation. The independence of our nation, saying we were going to be free from taxation without representation.

But I feel like this applies a lot with seniors now in the United States. They’re in a situation where they spend three to four times what a house costs to pay for it, over the life of a bank loan – that’s 30 to 40 years plus interest.

For a $100,000 house, they’re going to pay $200 or $300 hundred thousand dollars when it’s all said and done. That’s our economy. That’s how our system’s set up. And you’ll hear me say system, because I do believe it’s a system.

Then you head into your senior years and you’re enjoying them… and then, bam! A healthcare situation hits. You haven’t done proper planning and you or your spouse are faced with having a lien placed on the house. Not being able to pass that along to the kids.

You’ve got to sell it or wait and have it taken away after you pass. That was your hard-earned money and property. You paid taxes your entire life to pay for things like long-term care Medicaid and assisted living Medicaid, and you’re told that you can only use that if you sell your house – or they’re allowed to take your house away.


Declare Your Independence

That’s not right. I don’t have a problem saying it.

Because it’s true. Your tax dollars should be paying for things like this. The long-term care Medicaid system is out there, it does a good job paying for care. The problem is, to qualify for it and use all of those millions of tax dollars you paid over your life, you have to basically be destitute. You have to sell or spend-down everything you’ve ever worked for.

We can help protect that. An elder law attorney can help protect those assets. I feel like we need to be independent of that taxation.

You need to celebrate your senior Independence Day.

We need better representation, who take into account what we as seniors and American citizens need. We want to be able to pass property and keep it.

That was one of the things that the early Americans were so concerned about too, the right to have and control their own property. To be free of tariffs on everything. The taxes on everything that they worked so hard for.

But now we’ve got our own governments that are on our back all the time wanting more and more money and are getting more intrusive into our lives.

I’m proud to be an American. I served in the US military and wear my flag pin everyday. Love the US.

But I still have a strong say so – like a rebellious American should – on being independent.

As seniors, independent means you’re saying in control of your lifestyle and in control your assets throughout your entire life.

That’s the goal of our planning. An elder law attorney like me can help you do that. Help make sure you’re in control of your home, your property, your monies, your retirement, throughout your entire life, while also recognizing that 7 out of 10 seniors are going to need some type of long-term care.


How Can We Do It?

Well, we can protect it using deed planning. We can use trust instruments, like Medicaid asset protection trusts, which are special irrevocable trusts; use Lady Bird deeds in North Carolina to protect the homestead immediately; tenants in common deed to protect other property.

Really sit down and make sure you have your foundational documents in place – power of attorney, healthcare power of attorney, living will, will – to make sure you’re in control, you’re independent, you have the most healthcare options possible. Coupled with the protection of your property, which you worked so hard for your entire life.

I get a little passionate about these things. It’s because I love to fight for people. I really do. I love being the underdog – and I used to do this in the courtroom as well. I love the strategy. I love sitting down and saying, “Okay, the deck is stacked against you. These are the rules”.

Now let’s find a strategy, let’s find a way through it that’s guaranteed under the law, that gives you the most control and protects your assets. And that’s what you want your attorney to do, is to fight for you. To plan for you.

So whether it be a contested probate hearing or just some pre-planning, your elder law attorney should be fighting for you.

Luckily, I do have the freedom of speech to say what I want. And by gosh, I’m going to do it.

Call me if you have any questions:

Greg McIntyreGreg_Full
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby




Top 3 Questions That People Have About Elder Law

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These are the three things that I’m most frequently asked when giving educational talks and things of that nature.


1. If I Don’t Have Any Debt, Do I Still Have Something To Worry About?

Does not having a lot of debt protect against things like the Medicaid spenddown, paying large amounts of money for long-term care, or liens?

I had somebody recently who asked this question. She and her husband were shrewd and had little or no debt.

They lived right. They had a bunch of rental houses that were in their name. They paid everything cash out-of-pocket and didn’t have any mortgages.

What did they have to worry about?

My question to her was simply, if you or your husband have a long-term care event, and it costs you $75 to $100,000 per year to pay for that care indefinitely, is that going to put a dent in your finances?

Are the rental houses still going to be okay? Is the bank account still going to be okay? Are the monies that you have in savings going to be okay?

The answer is no.

It doesn’t matter how much money you have. At that rate of a spenddown, you’re not going to be okay.

It’s going to be very hard for you to maintain your lifestyle and your savings if you’re spending down money at that rate.

What should you do to get some protection? Well, just from my experience and knowledge of elder law, my initial recommendation is that you need to separate that liability with the rental houses and the personal income.

That way, if you get sued above and beyond by a renter, it wouldn’t come back against your personal assets, whether the insurance covered it or not.

You need to separate your business liability, which should be your rentals. That might involve setting up an LLC and putting all the rental houses in that LLC.

Then controlling that LLC. Putting all those assets in one box and separating it so that they couldn’t attack your house, your car, your savings for retirement, and things of that nature.

You’re totally exposed there if you haven’t made that protection. You could do similar work with trusts, Either one would work very well in this instance. I’d feel more comfortable with an LLC if I had a lot of rentals to deal with and manage.

If you really wanted to get complicated with it and increase your protection, we’d put each one of those rentals in its own box or LLC and encase that in a larger box, which would be an LLC that joined and owned all those sub LLCs.

Now you’re really talking about things that involve a lot of legal work but are really top tier liability protection strategies. It’s putting degrees of separation between your personal assets and your business assets, which you’ve developed and bought to provide income for you through retirement.

Obviously it would be up to the senior on how many boxes or layers of protection they wanted to add there. But you could see how that could go on for quite a while and be very exhaustive to another plaintiff’s attorney or some individual who’s trying to get at their personal nest egg and assets.

It would be very hard for them to do. So layers of protection. That’s how you stay warm in the winter. Wear layers, right? Same thing with legal planning in that situation.

Also, you might want to look into doing some deed planning on your homestead, so we add a protective deed there, like a Lady Bird deed. And maybe look at how many cash assets you have that are personal to you and whether a trust, Medicaid Asset Protection trust, or other type of instrument might be best for you, to make sure that we protect what you have.

Are you or your husband veterans? Did you serve one day during war time?

You may easily qualify for Veteran’s Aid and Attendance benefits, which could add up to $2,500 to $2,750 per month to your income. That could help out a lot if you had some type of long-term care situation.

Do you have your foundations in place? Do you have your general durable power of attorney, healthcare power of attorney, living will, and will?

Is there anything to talk about there? It was great that you were shrewd with your money, but have you been shrewd and prudent with your legal planning and protective legal planning strategies?

That’s where I come in. That’s where an elder law and estate planning attorney comes in.

Yes, you still have things to be concerned about.

In fact, I think you probably have more to be concerned about than the normal or average person, because you have more to lose.


2. What If My Attorney-In-Fact Predeceases Me?

What if my daughter or husband predeceases me? Talking about a situation where there’s an executor or power of attorney.

I look at it like a ball game.

If the first attorney-in-fact you appointed fouls out, you need to have somebody coming off the bench to take that person’s place. If that next person fouls out, is unable or unwilling to serve, then you need to have another person coming in off the bench to take that second person’s place.

In my opinion, you should go two to three people deep for subs. You have to have a deep bench, so that document grows with you and lasts throughout your entire life.

Just in case, heaven forbid, your husband or wife passed away and was unable to serve as your attorney-in-fact, for your business or personal affairs or healthcare decisions, you automatically have that trusted son or daughter coming in to handle those affairs for you.

You don’t need to have that document redone or have any new legal work done if that husband or wife, that first person that you had in there, passes away. The document should be written as such.

Should my wife be unwilling or unable to serve – and name your wife – then I nominate or designate my daughter – her name – to serve as my lawful attorney-in-fact in her stead.

We could add other people in there, so that we have people to take the primary attorney-in-fact’s place.

That’s my answer to that question. And it’s important to have that, if it’s available.


3. I Already Have A Will

This one may be the most common thing I hear. It’s not so much a question as a statement or belief.

They already had their wills done, so they think they’re protected.

Having your will in place is great. But I know that there’s a 7 out of 10 chance that everybody over 65 right now is going to need some type of long-term care throughout their life – whether it be in-home, assisted living, or nursing home care – based on our healthcare technology and the age of people right now in the population.

That’s just the facts according to a 2005 US Department of Health and Human Services report.

So if you have a will, that is great. I’d love to take a look at that will and make sure it’s up to snuff. I do that all the time, just to check those documents out.

But if we’re passing your home, for instance, through your will, then we open it up to a probate estate down at the courthouse. You have to go down to the courthouse. You have to pay to open the estate. You have to publish it in the paper, most times.

Then wait 90 days. That’s not for people to throw money into your estate, so you have more there. But for people to attach liens, like Medicaid liens or liens for healthcare costs the last year of your life.

If, heaven forbid, you had a car wreck and the insurance didn’t cover the whole amount, that lien could attach.

Any lien, any debt that has been unpaid, comes in on the estate. Your property could be sold to pay for that lien. We see it happen all the time.

So I’m glad you have a will, but to me, the will is just the safety net. It’s there to catch whatever we don’t directly make transferable upon death assets, which travel outside of the probate estate directly to your beneficiary.

The financial industry is way ahead on this. If you have a life insurance policy and you place a beneficiary on there, who gets the money?

You’ve named a beneficiary, and it’s going to pass directly to the person that you named by check. No liens attach. That’s how we want to pass your real estate as well, your house that you worked for 30 or 40 years of your life.

Three Things You Need To Know

Just to recap the top three questions:

– Not having debt is not a protection against the Medicaid or large monetary spend down.

It’s smart that you don’t have debt. But it’s not protection.

– List multiple attorney-in-facts, so that if one is unwilling or unable to serve, you have someone to come in and take their place. We handle executors the same way.

– That’s great that you have a will. But that’s probably the worst place that we can pass property. We want to try to prevent that if possible and protect that property.

These are all things we talk about when I meet with a person who is interested in doing some protective planning and seeing what options are out there.

Call me if you have any questions:

Greg McIntyreGreg_Full
Elder Law Attorney
McIntyre Elder Law
123 W. Marion Street, Shelby




How to Leave a Legacy For Your Children

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I wanted to talk to you today about a father’s legacy. Father’s Day just passed. That’s a really big deal to me. My father’s still alive and he’s done so much for me, it’s ridiculous.

I wouldn’t be the man I am today, the person I am without my father. He’s just helped me out so much along the way.

He raised me. He gave me a sense of morality and ethics. He was one of the hardest workers I’ve ever known and ever seen. Diligent, day in and day out.IMG_2209

For me, I have a wife and six children. We started having kids pretty young. But that wasn’t a detriment to me. It was a such a blessing and a benefit, because I was able to do those things that my father had taught me to do.

Which was work extremely hard. Not follow the crowd. And build something. Pay for your education. Start a focused practice. I wouldn’t be able to do those things without my father.

He always coached my teams when I was a kid. I played three sports a year, and I loved baseball.

I will always remember a specific life lesson he gave to me. He said, “Greg, if you’re on the field and you make an error in a baseball game, you can’t sulk about it. You can’t dwell on it. Your mistakes can’t get you down. You’ve got to move past it quickly. Because everybody makes mistake, and the next play is coming – and it’s coming quick.

“That next batter’s up, and if you’re still thinking about that past mistake, you’re not going to be ready for that next play that’s coming.”

That’s just always stuck with me. That’s what’s allowed me to take a lot of hits during life and just keep on going. The next play’s coming so you better get ready for it.

So I want to be a great example for my children.


What I Want to Teach My Kids

My children are all great kids. It’s amazing how several kids from the same parent can have such different personalities.

What legacy do I want to leave for my kids?

I want to leave them a legacy of creativity and problem solving. Don’t ever let the world or life get you down. Don’t ever let somebody tell you you’re not good enough, smart enough, or you can’t do something.

Push forward. Do what you want to do. You come from a long line of confident people, who can accomplish whatever they want to when they put their minds to it.

I want them to be God fearing. To be humble. Know that there’s somebody above you and love everyone.

Give more than you get. Help other people that are less fortunate than you, at every opportunity, every chance you get. Whether on the street, in life, or in business. Give to others.

It’s just so important, even to your own sanity and success, self-esteem and self-worth. Share the love, share the wealth.

The more you do it, the more you’ll find you will be. Your spirit will be in good shape too.


How Fatherhood Made Me a Better Person

Those are some of the legacies I want to leave my kids.

Having kids made me want to be a better person. They made me want to be a better man and to live right.

Make the right decisions. Provide for them. Send them to college. Maybe not pay for it, necessarily, but equip them with the tools to have a great education.

Instill them with a good platform of hard work and independence, so they can go off in life and be functioning adults.

A lot of times, we see have people who are not functioning adults, because they’ve been babied and coddled their whole lives. I don’t want to leave that legacy to them. I want them to be independent and make their own decisions based on a framework we’ve given them, which we know to be the right way to do things.

That being said, I want them to be open to others and their ideas as well. To bee accepting and love others.

Be positive, not negative. Don’t bring negativity in my house. Don’t bring it in my workplace. Don’t call me with it. If you do, I’m going to turn it around and give it back to you in a positive way.

Love others. Be giving. If you keep that mentality, you’re going to be a great success in life.

I have two boys and four girls. My boys are 15 and 11. The girls are 7, 5, 4, and 18 months.

And man, it just changes your perspective on how you think about things. About women’s issues, for a man, for a father. You want them to go out and be independent. To get a fair shot, be equal, and not take any crap from anybody either.

I hope I can give them the confidence and legacy and step out and be great ladies, who are giving and loving, but also are confident and don’t allow themselves to ever be sold short because of their gender.


What I Hope to Leave Behind

I think taking care of my wife, that’s another part of being a father and a husband. I want to take care of her. She takes good care of me, and I appreciate that.

I want to make sure that we have our foundations in place, our general durable power of attorneys, healthcare power of attorneys, living will, and wills. Those are important so that she can take care of me if I was ever incapacitated, if I ever couldn’t handle my business or personal accounts.

What else?

Of course I want to leave my monetary things. The thing about life is my experience and knowledge are always changing. But right now, at this point in my life, I would want to give a good amount of money to my church. I’d want to give a good amount of money to some charities that are near and dear to my heart. The Boys and Girls Club of Cleveland County, they would get a good chunk, because I think they do an amazing good for the community.

I’d want to give a portion to my wife, to provide for my kids’ college educations. Maybe stagger how it was released so I wouldn’t curse my kids with a ton of money at 18 years old.

My gosh, if I would have gotten millions or hundreds of thousands when I was 18 years old, insurance money or an inheritance, I’d be dead right now. I could pretty much guarantee that. Because I would have blown it in a lot of really stupid ways.

It would not have helped me. It would have hurt me. I had a good leg up in life. But starting without that kind of curse of hundreds of thousands of dollars would be a great thing for them, so they have to work for it.

So they have the incentive and motivation to develop a good work ethic. To finish college. Maybe go to grad school. And release the money to them in increments along the way. Give them a chance to settle down a bit, get into a groove in their life and their careers, and have a little more wisdom and common sense.

I would leave also money in trusts to make sure that my wife was just well taken care of. I would take care of our house and make sure it’s preserved and protected, for her and then later for my children.

I don’t want it to just evaporate. I don’t want it to go away because I haven’t planned properly.

That’s why I would suggest that you plan properly. Have your foundational documents in place: general durable power of attorney, healthcare power of attorney, living will, will.

Have you house and your real estate set up so that it passes outside the will, and you can do that with deed documents. Have trusts set up if that’s what you need to do. Make sure you don’t curse your kids with a ton of insurance money or inherited money at 18 year old.

Give them some incentive to live life and be fully productive adults, without that kind of assistance in place yet. Give them some incentive.

Those are things that I think you need to plan for and work for.


Steps to Leaving a Legacy

As you know, I’m an elder law attorney.

What would I leave for a legacy for my kids? Well, those are the legacies I’ll leave them. And blogs like this or my videos.

We do legacy videos in our office, so you can sit down and do record one with us. Then we’ll put it on a CD or have it on a USB drive that you can give to everybody in your family. E-mail it around. Put it on Youtube.

Whatever you need to do, to let your family know that this is what happened during your life.

That’s very important. So you can give them more than just money or property.


A Special Message for the Dads

Happy Father’s Day to all you dads our there. Take your responsibilities seriously. It’s a gift to be a father. Take it seriously, let it change your life, and make the best man out of you that you can be. And just love your kids at every chance you can. Spoil them and hug them and kiss them.

But also give them a work ethic. Make them do their homework and do their chores and work in your office and whatever you need to do. Teach them how to ride their bikes down the road. You don’t have to drive them everywhere.

Teach them to run. Teach them to keep in shape for the rest of their lives. Give them a legacy. And plan to take care of them should something happen to you.

That’s where I come in.

Avoid These Titanic Mistakes In Elder Law Planning

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What are titanic mistakes in elder law? Well, when I say titanic mistakes, that probably reminds you of the Titanic, right? The RMS Titanic, that man built and said was unsinkable.

So obviously, on its maiden voyage, it hit an iceberg and sank. They didn’t know the iceberg was hanging out there, right? But they should have. They were going through some cold water, up in the northern Atlantic.

What a false sense of confidence they had, and a lot of people suffered and died because of it.

So a titanic mistake in elder law would not be looking for the icebergs that are out there for right in front of you, in your coming life. And I say, if you’re saving for retirement, you need to be planning to save your retirement. It’s a catchy phrase but it’s still very true.

“If you’re saving for retirement, you need to be planning to save your retirement.”

What are some titanic mistakes in elder law? What are some icebergs that are hanging out there in your future?


Time Is Your Enemy

One is time. Time is your enemy.

The longer you wait, the more chances there are that something is going to happen prior to you getting a plan in place

As human beings, our #1 motivator is fear.

So when the captain, the crew and everybody on board hit the iceberg, they were motivated by fear. By fear to do what?

Not by fear to seal the doors, like they should have. But by fear to get the heck in the lifeboats and get off. To save themselves.

They should have been motivated to figure out how to navigate the water in the first place, and be ready in case they hit an iceberg.

So how can you navigate those waters as someone who is either a retiree, getting ready to retire, or going into your senior years?


Avoiding High Legal Fees

Time is your enemy by waiting. Why is that? Well, there are several reasons.

One is cost. I have a friend who plans in Colorado, and he says, you know, people will curse me for what I would charge to preplan and save everything they have.

And then, in the end, they’ll come back and beg and kiss me and hug me and tell me that I’m the best attorney since Perry Mason, when I have to charge double to save half of everything they have.

Because it’s an emergency crisis situation, there’s a lot more planning and heavy lifting. There’s a lot more at stake.

So plan ahead. It’s a lot less costly.

For instance, having a power of attorney in place. That’s a legal document that should be bulletproof.

I’m not a huge fan of short-term powers of attorneys. Ours are generally between 20 and 26 pages long and cover everything from soup to nuts, including Medicaid planning.

So it allows your most trusted person in your family – and then you can line up second and third people on deck, in case that person is unable or unwilling to serve – to handle both your healthcare and business affairs, should you become incapacitated or unable to do so because of a healthcare situation.

That could be dementia, Alzheimer’s, or anything else.

Preparing power of attorney documents are a lot less costly than a guardianship proceeding. That’s a long, drawn out court proceeding that could be conflicted if your family members don’t agree with who’s going to be the guardian, or if there’s not someone suitable

Why not go ahead and appoint someone in a document at a tenth of the cost?

Plan ahead. It saves money and puts your affairs in order, both for healthcare and for general business affairs. Plan ahead, before you’re on life support, heaven forbid. And lingering and the family’s bickering over what to do.

You could, if you wanted to, draft a healthcare directive – or a living will, as it’s called – to determine how you want that situation to be handled and express that intent to the caregivers, the physicians, and your healthcare power of attorney.

So time is your enemy and cost is your enemy.


Don’t Be Motivated By Fear

So don’t be motivated by fear. Try to be motivated by logic and the fact that you know that it’s better to plan ahead. It’s less costly and it’s the smart play. It’s the smart thing to do.

The smart thing to do is to take a different path around the iceberg. The healthcare situation is an iceberg that many seniors face. Long-term care, either in-home care, assisted living, or nursing home care, is an iceberg.

And I say that knowing that a US Department of Health and Human Services report, in 2005, said that about 70% of all seniors over 65, at that time, were going to need some type of long-term care.

That’s 7 out of 10 people. Better than Vegas odds. And Vegas wasn’t built on winners.

So beat the odds. Don’t let the government or healthcare take it all. Plan ahead.


Beat the “Hang Your Head Spend Down”

The hang your head spend down, that’s another enemy.

What’s the hang your head spend down? Well, the hang your head spend down is what I call you going to social services without knowing any better or knowing what to do.

I have a great relationship with all the social workers there. I value that relationship, and they’re experts at what they do. But they’re not attorneys. They’re not paid to guide you through the complicated legal process of what you can and can’t do with your assets. Or how you, as a healthy spouse of someone who is in a nursing home, can help keep money that you work for your entire life, so that you can enjoy your retirement and your healthy years.

The spend-down right now in North Carolina is just over $119,000 dollars that the healthy spouse can keep. That’s not a lot of money if you’ve got years and years to live.

So how can you keep above and beyond that? Well, we can help you.

How can you save your house from having a Medicaid lien put on it, or being taken away and sold and not kept in your family?

Well, you can see someone like me and we can talk about ways to protect your hard-earned money and property.


Don’t Let Lack of Knowledge Sink You

Another iceberg out there is a lack of knowledge.

If I was in the middle of the Atlantic, waving flashlights and flags, trying to tell you, “Hey, there’s an iceberg, turn this way and I can get you out of this”… wouldn’t you want to give me a call?

Wouldn’t you want to say, “Hey, what’s that guy doing over there? Why’s he yelling and screaming and trying to get our attention?”

I’m trying to get your attention because you’re headed toward the iceberg that’s going to sink your ship and your family’s ship.

So pay attention to the guy operating the lighthouse. Because he’s trying to steer you away from that titanic mistake, which is waiting until it’s too late.

Now, in an emergency situation, we can get in – and we love doing that – and save as many assets as possible. But it gets tricky sometimes, being able to save as much as we could if we were able to plan ahead at the fraction of the cost.

That’s what we’d really like to do. If you can’t tell, I’m very passionate about helping seniors maintain their assets and legacies. That’s our slogan here at McIntyre Elder Law.

The purpose of our practice is two-fold. One, our slogan, help seniors protect their assets and legacies. Pass those on to their loved ones. Another one is making sure they stay in control of those assets and have the best healthcare options possible.

Those things are our guiding principles here, and we love to do them.

How To Plan For a Medicaid Crisis

in Articles, Newsletters by Greg McIntyre Leave a comment

When I relate Medicaid to seniors, I’m talking about special assistance Medicaid or long-term care Medicaid. Paying for nursing homes, assisted living, or in-home care. Medicare will not pay for these types of long-term care.

Medicare would pay for 20 days, and that’s it.

And then who pays? You do.

If you’ve got a Medicare supplement through private insurance, the supplement would pick up and pay for 80 days. So that’s 100 days total that are covered.

After that, you would come in and pay out of pocket.

That’s a scary situation. Because if you have to stay there, then you have to start paying. And the cost can be quite a bit.


What Is A Medicaid Crisis?

According to a Department of Health and Human Services report, as of 2005, there’s a 70% chance that people over 65 will need some type of long-term care during their lifetime.

That’s the reality. That means that you’re going to tap your savings, your retirement savings, and have to start spending that down out of pocket.

People come to me all the time in emergency situations. They’re asking me what to do, because their wife or husband has to go to a nursing home or assisted living facility and they haven’t planned for it. They’re being asked to spend down most of their retirement savings to qualify for Medicaid.

That’s money they’re expected to live on for the next 20 or 30 years. Then they’ll put a lien on their house and take it to satisfy their medical bills after they pass.


Why Paying Out of Pocket a Big Deal?

Home healthcare agents are, on average, $21 an hour across the nation. Assisted living facilities are about $40,000 a year across the nation. And the national average for nursing home facilities is around $76,000 on average.

That’s a lot of money per year. And you could have other costs and incidental costs above that. So if you’re coming out of pocket $75-$100,000 a year to pay for care, that could quickly zap an estate and retirement savings.


When Will Medicaid Pay?

When will they come in and start helping you pay for nursing home or assisted living care?

After you’ve spent most of your money.

Let me tell you about those situations. For a nursing home or assisted living resident, you can keep $2,000 in assets. That’s your resource money. That’s it.

You could keep your home at that time, if you tell them you have an intent to remain in the home or go back to the home, but that doesn’t mean that it won’t be sold in probate to pay the Medicaid lien in the end.

That’s usually how it’s taken. That’s what we want to avoid. Because that gives the family options.

What if you’re married? If there’s a healthy spouse, and one spouse has to go to a nursing home or assisted living facility, the healthy spouse can keep – as of this year – $119,220. That’s it.

Now, some of you might say, well, that’s a lot of money. I mean, if I poured it out on the table, it might look like a lot of money.

But if you’ve got to live for a good, long time, that’s not going to get you very far and provide a lifestyle that you want.

A lot of people are concerned that this is way too low. That you ought to be able to keep more, because you worked for it. You paid into this system.

What about the rest of the money? If you have, let’s say $300,000, and you know that you can save, as the healthy spouse, about $120,000. But your wife or husband is going to a nursing home or assisted living facility.

How do you keep the rest? How do you keep the other $180,000 that you and your spouse worked so hard for?

Medicaid would say, just go spend it down on healthcare, funeral costs, burial plot, headstone. Spend it on your car.

You could spend it making your house more handicap accessible. You’re putting in a ramp, maybe bars in the bathroom, roll-in showers.

You can prepay utility bills. You can prepay hair appointments for a year. My mom did that for my grandmother.

If you have a special needs family member, we could give 100% of that to a trust for that family member, and save 100% of the cash assets. That’s another way to do it.

But I think there’s more attractive options than to give up control of that money.


Keep Control of Your Retirement Savings

What about keeping it to live on? And keeping it so that you can have that for retirement?

Well, we can use legal and financial tools, so that you keep the rest. In the married couple situation, with the healthy spouse, we can generally keep 100% of the cash assets.

The reason I say “around 100%”, is because with IRAs and 401ks, there could be some tax consequences. But those are generally offset, for the most part, by the healthcare expenses that year.

In a single person situation, where’s there’s no spouse, we can keep 50 to 60% of the cash assets and sometimes most or all just depending on the situation.

Medicaid will come in and pay for long-term care for you and your spouse. We work with families all the time to make that happen. We also want to look at saving real estate.

Pass it outside of the probate estate, directly to your loved ones, say your children. The last of your money passes, and you stay in control of it during your life.

That’s only in emergency situations, where you’re a nursing home now – or headed there quickly. And the family comes to me and says, “What are we going to do? We can’t afford this healthcare for very long? How can we position ourselves so our money goes the farthest and mom gets the best care?”

That’s the situation I’m talking about. If you just go to social services, they’re going to tell you to spend all your money. They are just going to tell you what the law is.

We work with those social workers all the time, and they’re experts. They help us do what we do.

But they’re not attorneys. They can’t give you legal advice.

You want to avoid getting in that situation where we just go to social service, and we’re told that we have to spend everything, and then it’s gone.

There are legal tools that can help you save you protect your savings, your home, and your assets.

If you’re in a Medicaid emergency crisis situation, where somebody is going to a nursing home or assisted living facility or has recently gone there and the money’s being spent down very rapidly, then see an elder law attorney immediately. They can explain your options and help you in your time of need.

Sex and Dementia: Another Elder Law Topic

in Newsletters by Greg McIntyre Leave a comment

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Sex and the elderly (specifically those with dementia) is getting a lot of attention lately due to the Iowa case involving Henry Rayhons.  This case raises some important questions regarding personal relationships of those who develop memory debilitating diseases and their loved ones.


State of Iowa v. Henry Rayhons

In May, 2014, the State of Iowa charged Henry Rayhons with sexual assault of his wife, a felony.  He faced a possibile ten (10) year sentence if found guilty.

Henry Rayhons and Donna Rayhons were married in 2007.  It was a second marriage for both of them and they both had adult children.  According to friends and family, they were very much in love.  Donna was diagnosed with Alzheimer’s and was eventually placed in a nursing home by her adult daughters.

According to various news reports that covered the trial, Donna was evaluated by a facility doctor for a number of reasons, including capacity.  Upon Donna’s daughters’ request, the doctor advised Henry that Donna did not have capacity to consent to sex.  Eight days after being advised of this doctor’s opinion, Henry visited Donna in the facility, which she shared with an 86 year old female roommate.  While there it was alleged that he engaged in sexual acts with his wife based on a report made by Donna’s roommate and physical evidence gathered at the scene.


The Verdict

In order to prove its case, the prosecution had to prove two facts beyond a reasonable doubt:  (1) that Henry and Donna Rayhons, engaged in sexual relations on the night in question; and (2) that Donna Rayhons, was unable to consent to those activities.  A jury determined that the prosecution did not prove these two facts and found Henry “not guilty.”  The exact reasons for the jury’s decision are unknown, only that they rendered a verdict of not guilty.


Lingering Questions

Regardless, the case brought up many concerns and questions for all of us.  One of the main concerns this case brings up is the necessity of physical touch and intimacy for all people, especially as we age and even more so for those with dementia.  Human contact can come in many forms and it is vital for all of us.  Sexual intimacy is one form of human contact that many adults take for granted.  However, when one goes to live in an assisted living or nursing home facility, that right may be taken away or altered.

The Hebrew Home is a well-known nursing home facility located in New York.  It is considered one of the best in the country.  Twenty years ago, it became the first facility to implement a “sexual expressions” policy for its residents.   However, few facilities have followed suit.  In fact, most facilities do not have a policy concerning their resident’s rights to have sex with a spouse or any other person.  The conversation started by the Rayhons case may encourage facilities to look into implementing such a policy.

Another question that was thrust into the national spotlight by the Rayhons case is whether a patient with dementia can consent to sex, or at what point a person with dementia is no longer able to consent.  In the Rayhons case, the prosecutor focused on the incapacity of Donna Rayhons.  The prosecutor compared Donna to a twelve-year-old child who is unable to consent simply because the child lacks capacity to consent.  Similarly, the prosecution argued, Donna Rayhons’ Alzheimer’s disease made her incapable of consenting to sex whether she “wanted” to or not.  This question of how to determine whether an adult can no longer consent to sex, especially with a spouse, is a difficult one.

The fact that dementia patients have varying levels and moments of capacity makes it even trickier.  Many suffering from dementia have “good” days and “bad” days – even “good” hours or minutes and “bad” hours or minutes.  So, how do we measure capacity?  Is it best to say that once a person has been diagnosed with dementia and has moments of lacking capacity they should no longer be able to consent to sexual activity?  Even if we determine that dementia patients do continue to have a right to consent to sex even though they have the disease, the questions don’t stop there.

Unfortunately, there may come a point when a person with advanced Alzheimer’s may be unable to recognize a spouse or loved one.  This is excruciating for the unrecognized loved one and we imagine it is confusing, frustrating and isolating for the patient.  What if that same patient begins to find another patient at the facility attractive, begins to flirt or even “fall in love”?  Some of you may recall the national news reports several years ago when a similar situation occurred with Justice O’Connor’s husband who suffered from advanced dementia.  A New York Times article   written at the time suggested that sexual activity among older adults is an issue nursing homes will be forced to face.

Many couples who now face this situation may have never discussed how they would like it handled.  The Rayhons case has brought the issue of intimate contact to light and now gives couples an opportunity to discuss and decide how they would like the other to proceed if one later develops dementia or any other mentally disabling disease.


Legal Solutions

There are legal documents that can be added to the planning done for seniors that address many of these issues.  For example, additional provisions can be added to a durable power of attorney or health care document that address issues of companionship, facility choice, and personal relationships.  “Compassion contracts” are also being discussed as a possibility for couples to consider.  With a “compassion contract” a couple can agree in advance that each will allow and hold the other harmless for seeking companionship from a third party when one of them no longer recognizes the other.  Any variation of such an agreement can be made by the couple to guide them in this unfamiliar territory.

While there are no clear-cut answers to the questions that have been raised by the Rayhons case, it has given the Elder Law community an opportunity to seek better solutions for all.   If you or someone you know would benefit from speaking to an Elder Law attorney about the issues raised in this newsletter or any other legal issues, please do not hesitate to contact us.  We are always happy to hear from you.

To comply with the U.S. Treasury regulations, we must inform you that (i) any U.S. federal tax advice contained in this newsletter was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding U.S. federal tax penalties that may be imposed on such person and (ii) each taxpayer should seek advice from their tax advisor based on the taxpayer’s particular circumstances.


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