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Elder Law

Wednesday, November 19, 2014

Important Medicare Part D and Part C Updates

The Annual Coordinated Election Period (ACEP) for Medicare Advantage and Medicare Part D prescription drug plans is set to start on October 15th and end on December 7th. Thus, Medicare beneficiaries have to weigh their options and make a decision by December 7, 2014.

During the ACEP "Open Enrollment," Medicare beneficiaries who do not have a Part D plan can enroll in one. Individuals who currently have Part D coverage will have an opportunity to change plans. Beneficiaries can opt for either a Standard Medicare or a Medicare Advantage (MA) plan (generally run by private companies with similar coverage options).

Individuals already enrolled in Medicare will be automatically re-enrolled.  However, the best plan for one year may not be the best plan for the following year. Part D and MA plans may have made changes to their coverage, provider networks and other plan features. However, all changes and plan information for 2015 will be available on the Medicare Plan Finder at www.medicare.gov. Essentially, the Medicare Plan Finder is an online plan comparison tool, which allows users to enter all their medications and dosages, compare multiple plans at a time, and enroll in a plan online. For individuals who prefer not to use this online medium, similar resources are available by contacting 1-800-Medicare, or their State Health Insurance Assistance Program (SHIP).

It is extremely important to be aware of the relevant dates and deadlines as beneficiaries who miss the ACEP deadline (December 7th, 2014) may have to wait until next year to enroll in Part D. Furthermore, beneficiaries who miss the deadline may potentially face a "lifetime" late enrollment penalty subject to limited exceptions.

Lastly, beneficiaries will again have an opportunity to un-enroll from a Medicare Advantage Plan during a limited period beginning on January 1, 2015 and ending on February 14, 2015. This period is known as the Medicare Advantage Disenrollment Period (MADP). During this period, beneficiaries will be permitted to drop their Medicare Advantage plan, enroll in traditional Medicare, and pick up a Part D plan. However, the MADP does not permit beneficiaries to switch from one Medicare Advantage Plan to another; beneficiaries who wish to change from one MA plan to another must do so during the aforementioned period between October 15, 2014 and December 7, 2014.

For any additional information about retirement or end-of-life planning, please contact an experienced elder law attorney

.  At Maroney Associates, PLLC, we give families the personalized attention they need to plan for the future. 


Tuesday, June 28, 2011

Five Reasons to have a Last Will and Testament

In previous blogs, we have discussed a number of aspects of a last Will and Testament.  Below is a quick summary of those discussions and why, if you haven’t established a Last Will and Testament, you should do so without delay: 

  1. Establishes your beneficiaries to inherit your estate after death.
  2. Establishes who will act as the fiduciary to settle your estate after death.
  3. Establishes the guardian for your minor children in the event of an untimely death.
  4. Create Trusts in your Will so as to avoid estate taxes, care for a special needs individual without jeopardizing his or her government benefits, and to avoid a minor from having access to an inheritance at 18 years of age.

And the most important reason:

       5.  Avoid the government making decisions “1 through 4” above for you.

 

Tuesday, March 8, 2011

Incapacitated Without a Plan; What happens now? (Part II)

Guardianship

In the previous blog, we spoke about the advisability of having a Health Care Proxy and Durable Power of Attorney in place.  Not having these documents in place begs the question, how does anything get done if a person becomes incapacitated?
 
The answer is a Guardianship Proceeding.  This is when some caring individual, or a health care facility when someone does not have anyone in the world available to them, brings a petition to the court seeking a Guardianship for the incapacitated person.  A Guardianship Proceeding is prolonged and time consuming and therefore very expensive from a legal fee standpoint.  Even when the Guardianship is unopposed, it is nevertheless a major court process which requires significant court intervention, and the fees to go with that intervention.
 
In a Guardianship Proceeding, the court will generally assign an Attorney for the Incapacitated Person (AIP).  This trained attorney will seek out the incapacitated person to see whether they object to, and/or even understand what is happening to them.  If the person says that they do not want a guardian, or do not want the person petitioning for guardian to be their guardian, the attorney has a duty to stand up and fight for the rights of the alleged incapacitated person.
 
The court will also assign what is called a Court Evaluator (CE), who will act as the eyes and ears of the court, spending time with the alleged incapacitated person as well as the petitioner for guardianship and any other interested persons.  The Court Evaluator will take a complete picture of the situation and report his or her recommendations back to the court. Neither the attorney for the alleged incapacitated person or the court appointed Court Evaluator is working for free. The court will award them attorney fees and those fees will come out of the alleged incapacitated person’s estate.
 
If the alleged incapacitated person objects to being appointed a guardian, and/or another loved one steps forward and says that they wish to be the guardian or at least oppose the petitioner being the guardian, the proceeding becomes an even more time consuming and expensive litigation type situation.
 
From an emotional standpoint, our firm has experienced that often times when someone suffers incapacity it is often at first not a total and complete incapacity.  They are often “in and out of capacity”.  When the alleged incapacitated person is brought to court for a Guardianship Proceeding, it is a very emotionally draining and difficult process if they happen to be with capacity when they are on the witness stand.  In this situation, they become very aware that someone is petitioning to become their guardian because they do not have capacity to manage their own affairs anymore.  This is a very emotionally charged and depressing situation for them because they realize that in essence their liberties are being taken away.
In short, the lesson here is that failing to plan is planning to fail.  To avoid a gut-wrenching, expensive, and time consuming guardianship application, all one needs to do is prepare a Durable Power of Attorney and a Health Care Proxy, and/or a Trust, wherein they appoint a trustee.
 
If you don’t have these very important estate planning documents, please contact us at Maroney Law.  We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.
 
 

Monday, February 21, 2011

Incapacitated Without a Plan

 

What Happens Now? (Part I)

What happens if you become incapacitated without a proper plan and/or protective documents in place?  Your loved ones will be unable to make decisions, major, minor or critical, relative to your financial and personal health care needs/desires, unless or until a Guardian is appointed.
 
Doctors and other medical personnel may have listened to and acted upon comments from the spouse of the patient who has for years attended doctor visits, and even spoken for their spouse at those visits, because the more silent spouse could speak up for him or herself if they did not agree with the direction of his or her care.  All of that would stop, however, when and if one of the spouses became incapacitated.  If the incapacitated person is unable to speak for himself or herself, and does not have a Health Care Proxy in place, health care providers are precluded from doing anything except what they think is medically necessary for the ill person.  Even if the ill person would rather not have:
  • Surgery
  • A breathing tube
  • An infusion
  • A transplant
  • A diagnostic procedure;
The doctors will do whatever they think is medically necessary to treat the patient.  If a Health Care Proxy is in place, the well spouse or another trusted individual can step in and advise the medical personnel as to what he or she thinks best for the ill person and, even more importantly, what the ill person wants for himself or herself.
 
A Living Will is also a critical document for any incapacity plan.  The Living Will is often known as a Do Not Resuscitate (DNR) order.  It is a person’s written and explicit wishes to their health care providers as to whether they do or do not wish to remain on life support if they are in a permanently brain dead or vegetative state.
 
This document is similar to a Health Care Proxy and, in fact, most Health Care Proxies contain Living Will language as well.  The difference is that the Living Will can only take place if the person is in a permanently brain dead or vegetative state.  The Health Care Proxy, on the other hand, will trigger when the person is incapable of making their own decisions, but may be far from a permanently brain dead or vegetative state.
 
Likewise, with respect to financial or business matters, incapacity will bring your bank account, personal accounts, business accounts, property and other business transactions to a standstill, unless a Durable Power of Attorney is in place.  Even your spouse cannot act for you relative to business and financial matters, if the asset that is the subject of the intended action is in your own name and not jointly held with your spouse. Without the Durable Power of Attorney, your business and financial matters will be in limbo because no one can act for you.
 
All of this can be avoided, if while you have the capacity, you prepare a Health Care Proxy and a Durable Power of Attorney. These two forms will allow you, while of sound mind and body, to designate who you would like to be making your decisions for you when and if you become incapacitated.  Likewise, if your estate plan involves a Living Trust, the person you designate as your trustee will be able to immediately step in and take over the management of the assets held in the trust.  However, the Living Trust only applies to the assets held in the trust, so making a Health Care Proxy and Durable Power of Attorney are still very important in any estate plan.
 
If you don’t have these very important estate planning documents, please contact us at Maroney Associates.  We can walk you through the process and help you protect your estate and health care choices should you become incapacitated sometime in the future.
 
In our next blog, we will discuss the consequences of not having these documents which is a Guardianship Proceeding.
 


Saturday, February 5, 2011

Medicaid Then, Now & in the Future

 
Elder law can be best described as estate planning for the middle class. Rather than planning so as to avoid estate tax implications, those who use an elder law plan generally are those people trying to avoid losing all of their assets to the devastating cost of long term care.
 
Long term care is unfortunately an event that many of us or our loved ones will ultimately face.  In the NY metropolitan region, a nursing home on average costs $15000-$18,000 per month at current rates.  These rates are only going to go up.
 
There are 3 ways to pay for long term care: 
  • Private pay
  • Long term care insurance
  • Medicaid
Medicaid is an asset and income based government program.  One must have his or her assets at or below a very low threshold (approximately $13,800) and must have a very low income level in order to qualify for Medicaid.  If the potential beneficiary of Medicaid benefits has a higher income, the excess will go toward the cost of his or her care. 
 
With respect to qualifying for Medicaid, one must be aware there is a five-year look back or transfer period, wherein the Department of Social Services will search to see whether or not the applicant made any transfers of assets within 5 years of applying for Medicaid.  (There are certain exceptions to the rule including, but not limited to, a transfer to a spouse.)
 
One common tool that we use is to prepare an irrevocable asset protection or “Medicaid” trust.  Provided assets are transferred into such a trust at least 5 years before the applicant applies for Medicaid, the principal of those assets will be protected for purposes of leaving an inheritance to the beneficiaries or loved ones.  Any income earned from such assets, however, will have to go toward the cost of the applicant’s care.
 
Medicaid is a constantly changing field and further changes are sure to come, especially since New York has a new governor who has committed to visiting the issue of Medicaid.  For these reasons, we believe it critical that our clients and/or potential clients listen to their trusted advisor relative to how to plan for Medicaid as opposed to listening to the neighbor over the back fence who tells them what they should and should not do, based on the advice of a distant relative, friend, cousin, etc., who had some prior bad experience.  Medicaid planning is fact sensitive to each individual, and is equally fact sensitive to the time frame within which the application is made.  What was then may not be today and will likely not be tomorrow.
 




Based in Melville and Garden City, New York, the attorneys at the Law Offices of Maroney Associates, PLLC assist clients throughout Nassau County, Suffolk County, Queens, and the cities of Mineola, Hempstead, New Hyde Park, Franklin Square, Williston Park, Queens Village, Melville, Huntington, Farmingdale, Patchogue and Uniondale, NY.



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