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Geriatric Care

The Growing Need for Geriatric Care Managers

The Growing Need for Geriatric Care Managers

The name can be misleading as professional geriatric care managers tend to a senior’s unique health care situation needs rather than being responsive to a particular age. The truth is aging is a complex, highly individualized process, and a geriatric care manager (GCM) may be appropriate at age 65 or 105 and any age in between. A geriatric care manager is a highly-skilled advocate for older adults and is specially trained to help identify resources to make managing your loved one’s daily life easier. A GCM is sometimes referred to as “aging life care professional” or “senior care manager,” as some find the term geriatric to be outdated. When is it appropriate to employ a care manager for your aging parent or loved one?

You live far away

Even if you leverage in-home technology and the internet of things to monitor and assess your loved ones well being, it isn’t easy to manage your older adult’s care if you do not live near to them. If you cannot frequently visit, a geriatric care manager can supervise care, alert you to potential or real problems, and work with you to arrive at the best decision for any issues that may prevent themselves.

Your loved one refuses to discuss their health with you

Many seniors, especially parents, do not want to burden their adult children with worries or problems. If you get the feeling your loved one is not telling you the full story about things affecting their health and well-being, hiring a geriatric care manager to check on them is a prudent strategy. Often, a senior is more willing to share their concerns with an expert outside of the family system.

There is a complex behavioral issue to address

Serious behavioral issues can manifest themselves in many ways, such as constant verbal abuse or being physically combative. These issues typically present themselves during the onset of dementia, and the root cause of the problem can be difficult to pinpoint. A geriatric care manager can connect you to an appropriate specialist to diagnose the problem.

You need to solve a problem in the senior living community

You might sense your parent needs more individualized care in their assisted living community, but the community’s administrator will not permit you to hire a private aide. A geriatric care manager understands how these communities work, the relevant state laws that may apply to the situation, and can negotiate on your behalf.  Because a GCM is an industry insider, they are more likely to find a solution in your loved ones’ best interest.

You do not know how best to help your loved one

There comes a time in your older family member’s care where you might feel utterly lost and unsure about what to do. A GCM can help you get unstuck by providing available options, tradeoffs, and costs. An initial assessment by a GCM can help navigate complex funding care options or uncover unknown resources for funding care.

Geriatric care managers can provide many services, including:

  • Evaluating, arranging for, and monitoring in-home care needs and the personnel that provide it
  • Coordinating medical appointments and arranging transportation to them
  • Identifying available programs and social services that can help your loved one
  • Making referrals to medical, legal, or financial professionals and suggesting ways to avert problems
  • Explaining difficult or complex topics to family members or care recipients
  • Creating short and long-term care plans that may include changes in living arrangements
  • Acting as a liaison to families who live far away from their loved one
  • Addressing and answering questions and emotional concerns of caregivers and their loved ones
  • Arranging for respite care providing relief to stressed-out caregivers

Medicare and Medicaid do not pay for a geriatric care manager’s services, so count on paying out of pocket. The initial assessment cost may range from 300 dollars in more rural settings to 800 dollars or more in larger urban areas based on a survey from 2017. After an initial assessment, a GCM bills by the hour and sometimes on a case-by-case basis. A reputable, certified GCM will have required degrees in one or more health care fields as well as several years of hands-on experience caring for the elderly. They will help assess, plan, coordinate and monitor your loved one’s insurance and entitlements, financial and legal matters, medical issues, involvement in activities, and family communication.

The National Institute on Aging (NIA), through the US Department of Health & Human Services, provides links on its webpage to locate geriatric care managers, as do many other organizations specializing in senior care like AgingLifeCare, and caring.com. You can also learn what to ask a potential GCM at caregiversamerica.com and other websites that provide senior information.

There is much to consider about your aging family member’s health and welfare, whether aging in place or an assisted living community. An experienced geriatric care manager, along with trusted legal counsel, can provide the best overall planning for a loved one. If you have questions or would like to discuss further how a GCM may help you or a loved one, please don’t hesitate to reach out.

Read more related articles at:

How Can a Trust Help You Avoid Nursing Home Costs?

Top 5 Strategies for Protecting Your Money From Medicaid

Also, read one of our previous Blogs at:

How Do I Keep My Assets from the Nursing Home?

Click here to check out our On Demand Video about Estate Planning.

Estate Plan

Plan, Don’t Wait, for an Emergency

Plan, Don’t Wait, for an Emergency!

That sounds like something your mother might say, right? And how often have you wished that you’d followed mother’s good advice?

 

Nobody really wants to think in advance about accidents or illness. But if no advance planning has been done, and if an elderly parent has broken a hip, say, and is about to be discharged from the hospital, the family must make crucial decisions in a highly stressful situation. There may be little, if any, time to figure out which living option is the best.

 

So, listen to mother. Plan ahead with your parents, if possible, so you will have your strategy ready when it’s needed.

 

Would your parents want to stay home? Move to a retirement community? Relocate to be closer to children?

 

Research the options. You might be surprised at how attractive many retirement communities are. There are increasing opportunities for independent or assisted living. Some facilities also offer transition into memory care, if that becomes needed.

 

Look into Caring.com, or call 800.973.1540. This is a comprehensive resource that offers information and guidance nationally, for living options and caregivers. Then, when you have researched what’s out there, talk with your parents about the pros and cons of the various choices.

 

Most people want to stay home for as long as possible. In-home care might be an option.

 

To connect with caregiving services for older adults and families, consult Eldercare Locator, a service of the U.S. Administration on Aging, on-line at eldercare.acl.gov or at 1.800.677.1116. The Eldercare Locator also provides information on local Area Agencies on Aging. These can be very helpful.

 

A care manager might be an option. These people have the experience and expertise to coordinate the many elements involved in elder care: medical providers, financial planners, elder-law attorneys, and rehabilitation specialists. Or, such people can work on an hourly basis, to pick up prescriptions, accompany your parent to doctors’ appointments, and coordinate communication with long-distance family. Find care managers through the Aging Life Care Association, aginglifecare.org, or at 520.881.8008.

 

If possible, urge your parents to get their legal documents in order while they are still in good health.

 

That is the best time to make sure that your parents have done the necessary legal documents. They may want to visit our office by themselves, but suggest to them that they provide you with copies of the documents. That way you will have the papers ready when you need them, and you won’t have to search for them under time pressure.

 

You can hope for the best, or you can plan for your parents’ well-being.

 

Do both. Call us now at (904) 880-5554! Or Book a Call Here!

 

Read more related articles at:

Millennials, It’s Time To Talk Estate Planning With Your Parents from Financial Advisors Mag

Are You A Millennial? Talk to Your Parents About Estate Planning

Also, Read one of our previous Blogs at:

The Estate Planning Conversation To Have with Your Parents

April is Parkinson’s Awareness Month Get Your Estate Plan in Order NOW!

Every month of April, the global Parkinson’s community engages to support awareness of Parkinson’s disease (PD), a disease whose cause remains largely unknown although treatment options exist. This year the Parkinson’s Foundation campaign theme is #KnowMorePD. The goal of raising awareness can help make lives better for people with Parkinson’s disease, generate ideas to improve care, educate, and fundraise to help advance research toward finding a cure.

Effectively, Parkinson’s is a disease where nerve cells that normally deliver the neurotransmitter dopamine to other cells experience a reduction in numbers. The more cell death spreads to larger areas of the brain, the greater the body is affected. Symptoms of Parkinson’s typically develop slowly throughout the years, with symptom progressions varying from person to person because of the diversity of the disease. The neurodegenerative disorder can manifest itself through tremors, bradykinesia (slowness of movement), limb rigidity, and gait and balance problems. Dopamine reduction can also produce nonmotor symptoms, often preceding a PD diagnosis. These symptoms can include REM sleep behavioral disorder, automatic dysfunction, depressions, visual impairment, attention deficit, reduced sense of smell, and difficulties planning and acting on ordinary tasks. Parkinson’s disease is not in itself fatal; however, disease complications can be serious.

The PD Foundation website has offerings by state. Local impact, education, and support are hallmarks of the foundation’s work. Individuals can plug in their zip code on the website Parkinson’s Foundation in your area for their closest PD chapter to become involved. Whether your interest is in exercise classes, therapy services, research trials, or caregiving support, visiting a local PD website in any state can point you in the direction you need.

California’s large and diverse population makes it an ideal state to study and expand our understanding of Parkinson’s disease. The state’s Department of Health has a chronic disease surveillance and research branch (CDSRB) that collects data to measure PD’s incidence and prevalence. This research brings awareness to the disease through the California Parkinson’s Disease Registry. Statistics about how the disease is distributed among different population groups and whether the disease patterns are changing over time may lead to insights about PD about which we know surprisingly little.

In 2021, about one million people live with Parkinson’s disease, with approximately 600,000 receiving a PD diagnosis each year, with men 1.5 times more likely to have Parkinson’s than women. Estimates are that direct and indirect costs of Parkinson’s, including treatment, lost income, and social security payments account for nearly 52 billion in US expenditure annually. Just the medication averages about 2,500 dollars per year, and the cost of therapeutic surgery can be upwards of 100,000 dollars per individual.

The terms incidence (new cases arising in a population over a given time) and prevalence (a measure of all individuals affected by the disease at a particular time) are often cited when discussing who suffers from Parkinson’s disease. Does prevalence vary by study, population group, and geography? Statistics generated by studying larger and more diverse populations can address these questions. Considering the last major prevalence study was in 1978, Parkinson’s disease studies are long overdue.

The statistics matter as the Parkinson’s Foundation continues to attract state and federal government and the pharmaceutical industry to address the urgent, growing need to understand and hopefully prevent PD. As a nation, we need to understand better who develops Parkinson’s and why. Much of the research focuses on ways to identify PD biomarkers, leading to earlier diagnosis and tailored treatments to slow down the disease process. While all current therapies can slow the process and improve symptoms, they do not slow or halt the disease progression. Idiopathic Parkinson’s disease progression tends to be variable and slow, making research all the more difficult, particularly when comorbidities are present.

On social media platforms and other online forums such as Facebook, Twitter, YouTube, Instagram, Reddit, Linkedin, WhatsApp, and more, #KnowMorePD for this April’s Parkinson’s Awareness theme helps to promote the foundation’s campaign cross-platform. The goal is to have conversations among loved ones, family, friends, neighbors, care teams, and the community will lead to more education, action, funding, and understanding of Parkinson’s disease.

If you or a loved one has been diagnosed with Parkinsons’ disease, there are a number of ways we can help. For example, we can create a comprehensive legal plan to make sure you or your loved one has the proper documents in place to cover care decisions, financial decisions, and what to do in the event of a disability. We welcome the opportunity to speak with you in a confidential setting to determine how we might help.

Read more related articles at:

Exercise May Slow Cognitive Decline in At-Risk Patients With Parkinson Disease

Exercise May Slow Cognitive Decline in Some With Early Parkinson Disease

Also, read one of our previous Blogs at:

The Latest Treatments for Alzheimer’s Disease

Click here to check out our On Demand Video about Estate Planning.

Easter Egg hunt

Is Your Estate Plan Like an Easter Egg Hunt?

Is Your Estate Plan Like an Easter Egg Hunt?

Every Easter, kids have a blast searching their home, backyard, or church property for small plastic eggs hidden with goodies. This type of scavenger hunt is enjoyable, but it won’t be as fun for your kids later on if they’re hunting for important estate planning documents once you’re gone.

To help your loved ones avoid the “hunt”, be sure to keep your original estate planning documents (such as your will), stored in a safe and accessible place. A home safe or filing cabinet is suitable if someone trustworthy has the combination or key, otherwise a bank safe deposit box may be used. If you do use a safe deposit box, be sure to put it in the name of your Revocable Living Trust, so your successor trustee will immediately be able to gain access without needing a court order. You may also add a trusted joint owner to the safe deposit box to carry out your estate planning wishes.

If you haven’t updated your estate plan since your last major life event (marriage, birth, or death in the family), it may be time to update it. If you still do not have an Estate Plan ,there is no better time then the present. Estate Planning is for Everyone!

Read some related Articles at:

Keeping Your Estate Planning Documents Safe

Where To Store Your Estate Planning Documents

Also read one of our previous Blogs at :

Estate Planning Is For Everyone

Click here to check out our On Demand Video about Estate Planning.

 

Faith based Estate Planning

Easter Can Bring up Thoughts about Religion and Estate Planning

Easter Can Bring up Thoughts about Religion and Estate Planning

Easter is upon us and Christians everywhere consider this the Holy Week. Some are inclined to think about things like Estate Planning around Christian Holidays. But Christianity is not the only Religion who holds firm beliefs about  inheritances and other religious decisions based upon their chosen religion. Most religions have specific quotes in their books of faith that direct them in ways to plan their affairs. In the bible there is a quote: Proverbs 13:22: “A good man leaves an inheritance to his children’s children.” (NKJV) The Holy Koran  4:176 :They ask you for a decision of the law. Say: Allah gives you a decision concerning the person who has neither parents nor offspring; if a man dies (and) he has no son and he has a sister, she shall have half of what he leaves, and he shall be her heir she has no son; but if there be two (sisters), they shall have two-thirds of what he leaves; and if there are brethren, men and women, then the male shall have the like of the portion of two females; Allah makes clear to you, lest you err; and Allah knows all things. Showing sensitivity to a client’s religious concerns should be an integral component of estate planning.

From an article from WealthManagement.com

Integrate your client’s religious concerns into the drafting of many common legal documents

Martin M. Shenkman | Sep 27, 2016

Showing sensitivity to a client’s religious concerns should be an integral component of estate planning. Religious goals can be achieved by integrating a client’s religious concerns into the drafting of many common legal documents. Addressing the myriad religious, philosophical, cultural and related issues in practice is not only beneficial to those clients for whom this is important, but also can be intellectually rewarding and may lead to a deeper relationship with the client.1

This topic, and many others, will be discussed at the 42nd Annual Notre Dame Tax & Estate Planning Institute that will be held Oct. 27 and 28, 2016 in South Bend, Ind.2

Selecting Fiduciaries

One of the most important decisions for a client seeking to imbue estate planning documents with religious values or to transmit a particular religious heritage to a child or other heir is the selection of fiduciaries who have some of the following characteristics:

  • Knowledge of the particular faith
  • Affiliation or observance of that faith themselves
  • Sensitivity to the specific needs of the heirs in light of the client’s religious goals and objectives

In many instances, the individual who best fits these criteria won’t be best suited to handle investment and other fiduciary responsibilities, so that a combination of an individual fiduciary sensitive to religious concerns and an institutional co-fiduciary may be called for. It might be possible to name the individual with the religious sensitivities as a trust protector and someone who can fulfill general trustee duties as trustee.

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Distributions

Agents and fiduciaries might be given guidance, and granted legal authority, to disburse funds for religious education (for example, supplemental religious education or private school), religious travel (pilgrimages to holy sites), charitable giving (to inculcate core religious values in heirs) and other purposes consistent with the client’s religious goals.

Charitable Giving

Many religions advocate the virtues of charity, and charitable giving can be tailored to reflect the unique nuances of a particular faith. Although many religions mandate tithing a certain percentage of income or assets to charity, others provide more specific standards. Yet others, such as the Mormon faith, while providing guidance, leave much to personal discretion. For example, charitable giving is an essential part of the Baha’i faith, as it demonstrates devotion to Baha’u’llah and represents the ideal of charity. Baha’is are expected to give a certain percentage of their incomes and assets to Baha’i charitable organizations through a mandatory donation referred to as “Huququ’llah” (“The Right of God”). It’s common for clients who are religious to make bequests in their wills to charity, permit agents under financial powers of attorney to make charitable gifts and, perhaps, include charitable beneficiaries in trusts.

Disposition of Assets on Death

A secular will may have to be modified to reflect the Baha’i, Jewish, Islamic or other religious laws of inheritance. Both the Quran and Old Testament include detailed provisions on how inheritance must be handled. Although similar, they’re typically applied in quite different manners in will drafting. These provisions need to be coordinated with tax, estate, financial and succession planning, as well as ethical issues. For the Orthodox Christian, if the believer doesn’t provide for their family and relatives, it’s as if they’ve disowned the faith and is worse than a nonbeliever. For Catholics, general guidelines of charity and justice should be respected.

Dispute Resolution

For all faiths, issues of a religious or spiritual nature are perhaps best resolved through mandatory arbitration before a designated religious body, not a secular court. Both Buddhism and the Baha’i faith incorporate principles that affect how to address disputes. The disinheritance of an heir, the use of in terrorem clauses and perhaps the use of arbitration provisions need to be evaluated. The Buddhist theory of karma provides that everything done in a particular life, as well as in past lives, influences and affects future lives. Undertaking to disinherit an heir out of anger can be viewed as creating a negative influence that may be carried on through rebirth to the next life. Buddhism advocates that believers take action out of compassion and not anger.

Investment Standards

The Prudent Investor Act and the investment provisions of the governing document should be tailored to permit a religious or socially oriented investment strategy, if that’s appropriate for the client.

General Directions to Adhere to Religious Considerations

If a client who’s involved in a particular business desires to tailor the operations of that business to certain religious precepts, then the governing documents for that entity should include a general directive that operations should conform to those religious principles. A threshold step to address a client’s religious concerns is to add a recital clause to each relevant legal document stating the client’s desire that the operation of that entity and business endeavor shall be conducted with consideration to the specific religious requirements.

Dispute Resolution Adhering to Religious Law

If a religious provision is included in any legal document, consider having any dispute or interpretation of that clause resolved by a religious body rather than a secular court. A number of faiths raise issues with dispute resolution and may require (or prefer) all disputes be brought before an appropriate religious body. This issue may be of concern for clients who are Buddhist or Baha’i. Also, for some faiths, the client may have a preference for a clause that calls for arbitration before a private religious body, a Beth Din or Jewish court for an Orthodox Jewish client, than to leave the parties to resort to suit in a secular court. The provision may be in the form of a mandatory arbitration clause in accordance with religious standards or before a religious body. For some clients, a mandatory, non-appealable religious arbitration may be appropriate. How this is handled can vary considerably, even within the same faith.

Interest

Judeo-Christian tradition raises prohibitions and restrictions on the charging of interest. Although these have generally been ignored in modern commerce, these issues are of importance for a meaningful number clients. Thus, in structuring a real estate transaction for a Muslim or Jewish client, issues of how the transaction can be structured to re-characterize or avoid interest charges should be addressed when the client desires.

Under Shari’ah (Islamic legal doctrines derived from the Quran, the teachings of the Prophet Mohammed and interpretations by Islamic scholars), Muslims are prohibited from paying or receiving interest, called “riba,” for the use of money. Although the term “riba” may be translated as “usury,” tradition interprets the restriction to apply to all interest. This restriction doesn’t prevent a modern commercial transaction; rather it will affect the documentation and structure of the transaction. Riba means unearned profits that aren’t reflective of business risk.

Both Islamic and Jewish law prohibit charging interest. These concepts can be incorporated into powers of attorney, wills and trusts. Under Islamic law, scholars view what constitutes interest or riba differently, so that for different clients, different provisions may be warranted depending on the views of their advisors.

Endnotes

  1. Bear in mind that this discussion is only a sampling of considerations to alert practitioners to the need and context for raising these issues with clients. It isn’t a comprehensive listing.
  2. For more information: http://law.nd.edu/alumni/tax-estate.

Read more related articles at:

Christian Estate Planning Basics

A Guide to the Islamic Living Trust

Basic Principles of Estate Planning Within the Context of Jewish Law

Also read one of our previous Blogs at:

Holiday Gatherings Can Reveal Declining Capacity in Aging Family Members

Click here to check out our On Demand Video about Estate Planning.

denied power of attorney

Can a Power of Attorney be Refused?

Can a Power of Attorney be Refused?

A power of attorney, or POA, is one of the most commonly used legal documents because of the numerous purposes a POA can serve. At some point in your life you will likely execute a POA, making you the “Principal” as well as be appointed as an “Agent” under a power of attorney executed by someone else. Considering how often POAs are used you might think that the authority of an Agent under a POA is never questioned; however, the truth is that third parties refuse to honor the authority of an Agent under a POA with some frequency.  Banks, for example, are notorious for refusing to honor, or at least questioning, the authority of an Agent when presented with a power of attorney. If you have been appointed as an Agent under a valid POA you need to know whether a third party can legally refuse to honor a power of attorney, and, if so, under what conditions.

What Is a Power of Attorney?

A power of attorney is a legal agreement whereby the Principal (the person granting authority) grants authority to an Agent to act on behalf of the Principal in legal matters. The extent of the authority granted to an Agent by a Principal will depend on the type of POA the Principal executed. Under a general POA an Agent has virtually unfettered authority to act, meaning the Agent can use the POA to do things such as withdraw funds from the Principal’s bank account, enter into a contract in the Principal’s name, and even sell assets owned by the Principal. On the other hand, an Agent with a limited, or special, POA only has the authority specifically enumerated in the POA agreement. A parent, for instance, might grant a caregiver a limited POA that allows the caregiver (Agent) to consent to medical treatment for a minor child in the parent’s (Principal’s) absence. In addition, because the authority granted under a traditional POA terminated upon the death or incapacity of the Principal, the “durable” power of attorney was created. An Agent’s authority under a “durable power of attorney” survives the incapacity of the Principal.

How an Agent Uses the Authority Granted in a POA

Once an Agent has been granted authority under a POA, using that authority should be relatively simple. Legally, a POA gives the Agent the authority to act on behalf of the Principal. Consequently, all an Agent should have to do is provide a third party with proof of the Agent’ authority by providing an original, or certified copy, of the POA agreement in order to exercise the Agent’s authority. Sometimes, however, it is not quite that easy to use the authority granted by a POA.

Common Reasons for Refusing to Honor a POA

Despite the clear authority granted to an Agent in a POA, third parties (particularly banks and other financial institutions) sometimes refuse to honor the Agent’s authority. Some of the most common reasons given by third parties include:

  • The POA is “old” – a very common excuse given by third parties for refusing to honor a POA is that the authority granted therein is “old” because the agreement was executed some time ago. Legally, this is not a valid reason to refuse to honor the POA; however, because trying to use an old POA so often leads to problems, it is a good idea to have the Principal update the POA every three to five years just to avoid problems.
  • Not on the proper form – financial institutions, in particular, often refuse to honor a POA if it is not on their own POA form. Legally, a third party usually is required to accept anyvalid POA; however, if the Principal is available it is often easier to just execute a new POA on the third party’s form than to argue the issue. Of course, you should have your estate planning attorney review the form before agreeing to sign it though if you are the Principal.
  • No proof of incapacity – if the POA is a “springing POA” it means the Agent’s authority only “springs” into action upon the occurrence of a triggering event, usually the incapacity of the Principal. Sometimes, therefore, a third party may question whether the event has occurred. In this case, you may need a letter from a physician declaring the Principal to be incapacitated.

Although third parties do sometimes refuse to honor an Agent’s authority under a POA agreement, in most cases that refusal is not legal. If you find yourself facing a refusal, that is not easily resolved, you may need to seek a court order that will force the third party to honor your authority. In that case, the law allows you to collect attorney’s fees if the third party unreasonably refused to accept the POA. It is a good idea to seek the legal counsel of an Estate Planning or Elder Law Attorney.

Read more related articles at:

Power of Attorney: who has the power?

What to Do When the Bank Refuses a Financial POA Document

Also, read one of our previous Blogs at:

The Wrong Power of Attorney Could Lead to a Bad Outcome

Click here to check out our On Demand Video about Estate Planning.

Medicaid Work requirements

The Current State of Medicaid Work Requirements

The Current State of Medicaid Work Requirements

Former President Trump made it very clear during his presidency that he supported Medicaid work requirements. Indeed, the former Administrator for Centers for Medicare & Medicaid Services (CMS), Seema Verma, under Trump’s administration, issued policy memoranda on how states could submit Section 1115 waivers in search of work requirement approval.

Thereafter, several states submitted such waivers, including Arkansas, Arizona, Iowa, Indiana, New Hampshire, Kentucky, Kansas, Maine, North Carolina, Mississippi, Ohio, Utah, Oklahoma, and Wisconsin. Kentucky was the first to attempt to implement such work requirements. Under that waiver program, each Medicaid recipient would be required to work, look for work, or participate in volunteer work for 80 hours each month. If the requirement wasn’t met, Medicaid coverage would be lost for 6 months. There were several exceptions to the rule, such as for pregnant women, full-time students, primary caregivers to dependents, the elderly, and the disabled.

However, days before the new work requirements were to become effective, a federal judge blocked the new rule. Similar litigation ensued in other states. Kentucky re-drafted their waiver application, and it was once again approved. During the litigation process, however, a different governor was elected and Kentucky subsequently rescinded the waiver.

Arkansas was the first state to actually implement such work requirement policy. They had their program in place for about a year before a federal judge halted it. A study conducted on the year-length program found that the work requirements did not increase employment and those that lost Medicaid coverage had adverse consequences, such as resulting medical debt and delayed medical care.

So, what is the current state of Medicaid work requirements? The Supreme Court of the United States had granted certiorari in Cochran v. Gresham; arguments were to commence on March 29. However, earlier this month, the Court removed the case from their docket. The current-acting CMS Administrator, Elizabeth Richter, sent letters to various states indicating that CMS was beginning a process of determining whether to withdraw the Section 1115 waivers seeking Medicaid work requirements, as the agency no longer believes work requirements supports the overall objectives of the Medicaid program. Because no states currently have Medicaid work requirements and President Biden’s administration and CMS both do not support work requirements, the Supreme Court has considered the case moot. For now, work requirements are a non-issue and the Supreme Court has declined to move the case forward.

Read more related articles at:

Medicaid Work Requirement Experiments at the Supreme Court: What Happens Now?

Did Medicaid Work Requirements Achieve Their Goals in Arkansas?

Also, read one of our previous Blogs at:

Dark Side of Medicaid Means You Need Estate Planning

Click here to check out our On Demand Video about Estate Planning.

big News for trust taxation

Big News for Trust Taxation

Big News for Trust Taxation

authorIcon By Jill Roamer, J.D.

Big News for Trust Taxation. Few of us feel delight when we hear the term “tax code”. However, there has been some recent excitement in the area of trust taxation and administration that we all should direct our attention to. Trust income, like an individual’s income, will be taxed in states with income taxes. The focus of the recent developments concentrates on the taxation of an out-of-state trust’s undistributed income, not what income is actually received by the trust’s beneficiaries. There is no uniform treatment of trust taxation between the states – the process is state specific. Some states have developed statutory schemes that permit the taxation of an out-of-state trust when a future beneficiary happens to reside within its bounds. However, other states have found that such policies violate due process. This circuit split has led to the Supreme Court of the United States (SCOTUS) to accept a case that will determine the constitutionality of such state taxation structures. This case, N. C. Dept. of Revenue. v. Kaestner Family Trust, No. 18-457 (N.C. filed Oct. 9, 2018), will define a benchmark for the taxation of undistributed income on trusts with out-of-state beneficiaries.

Kaestner Questioned

This case involves a North Carolina statute used to tax a New York trust, solely on the fact that a future beneficiary resided within the state of North Carolina. Here, the original trust was created in New York, then split into three separate trusts. The trustee resides in Connecticut and the trust is managed by a company in Massachusetts. There were no assets situated, nor disbursements made, within the state of North Carolina; the only connection between the trust and the state was that the beneficiary resided within the state. The question for the SCOTUS is whether such taxation violates the Due Process Clause of the U.S. Constitution.

Taxing Out-of-State Trusts

Unconstitutional Taxation

This issue has been tackled in various states so far, with differing results. The Minnesota Supreme Court recently decided a case regarding a trust originally created within the state, by a state resident, for the benefit of four beneficiaries (one living within the state). Here, the trust was subsequently managed by an out-of-state trustee with no trust interests in assets within the state in the tax year at issue – and thus, Minnesota’s connections with the trust were eliminated. The court found that taxation of the trust by the state exceeded the scope of constitutional taxation. (Fielding v. Comm’r of Revenue, 916 N.W.2d 323, 2018 WL 2447690 (2018).) The court opined that the historical contacts with the state were not relevant to the current status of the trust in the questioned tax year.

Similar results were found in New Jersey, Illinois, and Pennsylvania. [Residuary Trust A U/W/O Kassner vs. Dir. Div. of Taxation, 28 N.J. 541 (N.J. 2015); Linn v. Department of Revenue, 2 N.E. 3d 1203 (Ill. 2013); Robert L. McNeil, Jr. Trust ex rel. McNeil v. Com., 67 A.3d 185 (Pa. 2013).]

State Taxation Based Upon Beneficiary’s Residence

Eleven states have had laws that would tax trust income based upon a beneficiary’s residence within the state: Alabama, California (challenged and found constitutional), Connecticut (challenged and found constitutional), Georgia, Missouri (challenged and found unconstitutional), Montana, North Carolina (now being questioned), North Dakota, Ohio, Rhode Island, and Tennessee. Kaestner creates major questions in both challenged and unchallenged states. This is Big News for Trust Taxation!

Predictions

It is now time for the SCOTUS to step in and have the final say. Based on the direction of recent cases, it would be reasonable to expect that our highest court will find that a state attempting to tax out-of-state trusts, based on beneficiary residency, is an unconstitutional overreach. Several of these state opinions have said that trusts are separate entities, like individual citizens. Further, such states would eventually get their piece of the pie once the beneficiary actually receives assets from the trusts. The state is attempting to tax an out-of-state trust even though no increase in wealth is derived within the state. North Carolina is ultimately attempting to tax the income of a trust based on an in-state beneficiary simply because no other state is taxing it.

North Carolina’s reply brief in the Kaestner case does make an interesting argument towards the fairness of taxing the Kaestner trust under the present circumstances. The trust’s provisions indicate that when Kaestner turned 40, the trust would dissolve and the assets would be distributed. Instead of taking the distribution upon Kaestner’s 40th birthday, she opted to shift the assets into another trust. North Carolina argues that these actions were taken to avoid state taxation of the assets that should have been distributed to her during her residency within the state. Additionally, North Carolina argues that prior precedent declares a trust to not be a distinct legal entity, but merely a fiduciary relationship.

Conclusion

It is likely that the SCOTUS will lean towards the unconstitutionality of taxing out-of-state trusts based upon a beneficiary’s residence – but it may be a close call based on North Carolina’s argument pointing out the ultimate unfairness of tax shelters resulting from upholding the Kaestner decision. Allowing taxation based upon a beneficiary’s residency within the state would create a significant complication. What will be the result of taxation upon multiple beneficiaries that reside in separate states? Could this result in another potential Due Process argument that double taxation would result? What would the implications be on “quiet trusts,” in the few states that allow them, where beneficiaries are not even aware of the trust created for their benefit? But, then again, why should states not be able to tax trusts when its beneficiaries benefit from state resources?

Arguments will be heard Tuesday, April 16, 2019. This decision will be monumental in the future of trust creation and management. Trusts and Estates attorneys everywhere will be on pins and needles, eagerly awaiting the SCOTUS’s final judgment. But that is the Big News for Trust Taxation.

Read more related articles at:

2020 year-end tax planning for trusts can yield major savings

Taxation of Estates & Trusts

Also read one of our previous Blogs at:

As a Trust Beneficiary, Am I Required to Pay Taxes?

Click here to check out our On Demand Video about Estate Planning.

house taxes

What are My Taxes on a House I Inherited?

Say your mom transferred the deed of the house over to you in November 2014 with a life estate for her. She dies in 2016. Mom paid about $18,000 for the home in 1960. This is the son’s primary and only residence. He wants to put the house on the market for $375,000. Will he have to pay capital gains tax?

The son probably won’t owe any tax on the sale of the house. Nj.com’s recent article entitled “Will sale of inherited home cause a tax liability?” explains that the profit can be calculated, by subtracting the cost basis from the sales price. That cost basis is the original purchase price plus any capital improvements.

As far as the son’s repairs, he should look at capital improvements, which is somewhat nebulous. The IRS definition is “add to the value of your home, prolong its useful life, or adapt it to new uses.” Any improvements must be evident when you sell. If you replace a few shingles on your roof, it is a repair. However, if you replace the whole roof, that’s a capital improvement. If you don’t have receipts for the capital improvements, you can use reasonable estimates. However, the IRS may not accept them, if you’re audited.

Inherited property receives a “step up” in cost basis to the fair market value as of the date of death. This means that the original purchase price of the property and any capital improvements prior to the date of death are no longer relevant.

If a property is sold after it is inherited, the profit is calculated by deducting the date of death value from the sales price with an adjustment for any capital improvements made to the property after the date of death.

As far as the mom’s life estate in the home, this is a special type of real estate ownership, where the owner retains the exclusive right to live in the property for as long as she’s alive. However, a remainder interest is given to someone else, like a child. This “remainderman” automatically becomes the owner of the property upon the death of the life tenant.

Even with the life estate, the home receives a full step-up in cost basis upon the death of the life estate owner. The first $250,000 of profit on the sale of a primary residence is also exempt from tax, as long as the seller owned the home and lived in the home for two out of the last five years.

As such, the basis of the home will be the fair market value of the home in 2016, when the son inherited it as the remainderman of the life estate deed, plus any capital improvements he made since then.

In this situation, because the son has owned and lived in the house for two out of the last five years, he can exclude up to $250,000 of profit. With estimated sale price of $375,000, he shouldn’t owe any capital gains tax.

Reference: nj.com (Dec. 31, 2020) “Will sale of inherited home cause a tax liability?”

Read more related articles at:

How Taxes Can Affect Your Inheritance

How to Avoid Paying Taxes on Inherited Property

Also, read one of our previous Blogs at:

What Exactly Is the Estate Tax?

Click here to check out our On Demand Video about Estate Planning.

Background checks

Pennsylvania Creating Uniform Background Check Process for Those Working with Older Adults

Pennsylvania Creating Uniform Background Check Process for Those Working with Older Adults

Pennsylvania’s Department of Aging is looking to update the Older Adults Protective Services Act. This law was enacted originally in 1987 to protect older people who are most vulnerable.

WKBN’s recent article entitled “PA working to decrease elder abuse by updating background check process” reports that Carolyn Green, a spokesperson with the Pennsylvania Department of Aging, said when the law was originally drafted it had a section that regulated criminal background checks for employees. However, that part of the law can no longer be enforced.

“The commonwealth court determined that the employment ban provisions in the Older Adults Protective Services Act was unconstitutional, so we are not able to enforce that portion of the act,” she said.

“Right now, facilities are interpreting it the best they can, so updating this act would allow for more uniformity and a clear understanding of what crimes should prohibit people from working with older adults.”

These criminal background checks assist senior care facilities in eliminating the applications of those persons who might commit elder abuse.

Elder abuse is on the rise.

The Pennsylvania Department of Aging says that cases of suspected elder abuse increased 80% over the previous five years.

Most of that, they say, goes unreported.

According to the Pennsylvania Department of Aging’s 2019-2020 annual report, women make up about 64% of victims. Their primary abusers? It’s usually a female caregiver.

“We see a lot of scams happening to older adults but, unfortunately, we do see family members taking advantage or caretakers taking advantage of older adults. Background checks could help eliminate staff that could currently be working with but have committed crimes the facility isn’t aware of,” Green said.

Changes are in the works, Green says.

Reference: WKBN (Feb. 12, 2021) “PA working to decrease elder abuse by updating background check process”

Read more related articles at:

State Requirements for Conducting Background Checks on Home Health Employees

STATES’ CRIMINAL BACKGROUND CHECK FOR LONG-TERM CARE WORKERS

Also, Read one of our previous Blogs at:

Where are the Worst Nursing Homes in America?

Click here to check out our On Demand Video about Estate Planning.

 

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