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Articles of Interest: Long-Term Care Planning

Medicare Coverage of Skilled Care

This booklet, published by the Centers for Medicare and Medicaid, details how, and when, Medicare will pay for skilled care. Click here to download the publication.

Healthcare Communication Board for Medical, Physical, and Emotional Information

For people who are unable to speak, this tool will assist with communication. Click here to download the publication.

A Guide to Choosing a Nursing Home

The “Guide to Choosing a Nursing Home” is prepared by the Centers for Medicare & Medicaid Services (CMS). CMS and states oversee the quality of nursing homes. State and Federal government agencies certify nursing homes to participate in Medicare and Medicaid. Click here to download the publication.

“End of Life: Helping with Comfort and Care”

Helping With Comfort and Care provides an overview of issues commonly facing people caring for someone nearing the end of life. It can help you to work with health care providers to complement their medical and caregiving efforts. The booklet does not replace the personal and specific advice of the doctor, but it can help you make sense of what is happening and give you a framework for making care decisions. Click here to download the publication.

Be Aware Of the Dangers of Joint Accounts

Many people believe that joint accounts are a good way to avoid probate and transfer money to loved ones, and such accounts are sometimes referred to as “the common person’s estate plan.” But while joint accounts can be useful in certain circumstances, they can have dire consequences if not used properly. Adding a loved one to a bank account can affect Medicaid planning as well as expose your account to the loved one’s creditors.

When a person applies for Medicaid long-term care coverage, the state looks at the applicant’s assets to see if the applicant qualifies for assistance. While a joint account may have two names on it, most states assume the applicant owns the entire amount in the account regardless of who contributed money to the account. If your name is on a joint account and you enter a nursing home, the state will assume the assets in the account belong to you unless you can prove that you did not contribute to it.

In addition, if you are a joint owner of a bank account and you or the other owner transfers assets out of the account, this can be considered an improper transfer of assets for Medicaid purposes. This means that either one of you could be ineligible for Medicaid for a period of time, depending on the amount of money in the account. The same thing happens if a joint owner is removed from a bank account. For example, if your spouse enters a nursing home and you remove her name from the joint bank account, it will be considered an improper transfer of assets.

Another problem with joint accounts is that the account is vulnerable to all the account owners’ creditors. For example, suppose you add your daughter to your bank account. If she falls behind on credit card debt and gets sued, the credit card company can use the money in the joint account to pay off your daughter’s debt.

Finally, you need to be sure you can trust the joint account holder because he or she will have full access to the account. Either account owner can take money out of the account regardless of who contributed to the account.

There are better ways to conduct estate planning and plan for disability. A power of attorney will ensure family members have access to your finances in the case of your disability. If you are seeking to transfer assets and avoid probate, a trust may make better sense. To learn more, talk to an elder law attorney.

Keeping Track Of Your Will

Once you’ve taken the step to create a will and get your estate plan in order, you need to figure out what to do with the will itself. It is important to keep track of the location of your current will as well as any old wills.

Where to keep a will
The safest place to keep the original copy of your will is in a bank safe deposit box, but it may not always be the most practical. If the will is in safe deposit box, it may be difficult for your family to access the box after you die. A better option may be to keep it at home in a fire-proof safe. Just make sure your family members know how to open the safe.

Some attorneys may keep the original copy of the will. But if you leave the will with your attorney, make sure the attorney receives updated contact information from you when you move. That way if the attorney moves offices or retires, he or she will know where to find you and you will know where your will is.

If you do use a safe deposit box or your attorney’s office, you may want to keep a copy of your will at home with your other financial documents. It is usually not a good idea to give a copy to family members or friends because you may want to change the distributions at some point and may need the will back.

What do you do with an old will?
Once you have written a new will, your inclination may be to destroy the old will, but this may not be a good idea. If, for some reason, your new will is invalidated, the court may be willing to reinstate an old will rather than allowing your estate to pass intestate (according to state law). It is likely that your old will adheres more closely to your wishes than an intestate distribution. If the will is destroyed, it cannot be reinstated.

Making changes to a will
If you want to make changes to a will, do not mark up the will by hand, even if you have only small changes to make. A court could take a marked-up will as a sign that you intended to revoke the will. If you want to make a change, contact an attorney who can draft an amendment to the will (called a codicil).

Preventing a Will Contest

Emotions can run high at the death of a family member. If a family member is unhappy with the amount they received (or didn’t receive) under a will, he or she may contest the will. Will contests can drag out for years, keeping all the heirs from getting what they are entitled to. It may be impossible to prevent relatives from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out

Your will can be contested if a family member believes you did not have the requisite mental capacity to execute the will, someone exerted undue influence over you, someone committed fraud, or the will was not executed properly.

The following are some steps that may make a will contest less likely to succeed:

Make sure your will is properly executed. The best way to do this is to have an experienced elder law or estate planning attorney assist you in drafting and executing the will. Wills need to be signed and witnessed usually by two independent witnesses.

Explain your decision. If family members understand the reasoning behind the decisions in your will, they may be less likely to contest the will. It is a good idea to talk to family members at the time you draft the will and explain why someone is getting left out of the will or getting a reduced share. If you don’t discuss it in person, state the reason in the will. You may also want to include a letter with the will.

Use no-contest clause. One of the most effective ways of preventing a challenge to your will is to include a no-contest clause (or in terrorem clause) in the will. This will only work if you are willing to leave something of value to the potentially disgruntled family member. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.

Prove competency. One common way of challenging a will is to argue the deceased family member was not mentally competent at the time he or she signed the will. You can try to avoid this by making sure the attorney drafting the will tests you for competency. This could involve seeing a doctor or answering a series of questions.

Videotape the will signing. A videotape of the will signing allows your family members and the court to see that you are freely signing the will and makes it more difficult to argue that you did not have the requisite mental capacity to agree to the will.

Remove the appearance of undue influence. Another common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue your daughter took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive you to the attorney.