Your most valuable property may be your home, which is true for many people, and you likely want your children to inherit that value when you pass away.
However, you may also have concerns about planning for the future, especially if your health declines and you need expensive long-term care. You may be aware that Medicaid can pay for these services. Though, Medicaid rules say you can own no more than around $2,000 in assets to be eligible – so now what?
Medicaid Planning Using an Irrevocable Trust
One viable solution is to take your home out of your name while reserving your right to live in it. This is possible with a carefully drafted irrevocable trust, sometimes known as a Medicaid Asset Protection Trust.
Putting the house in the ownership of a Medicaid Asset Protection Trust could prevent Medicaid penalties and ensure reimbursement of health expenses. It all depends on whether your health continues to keep you out of long-term care for the next five consecutive years.
A Medicaid Asset Protection Trust has numerous other advantages, one of which is to avoid probate proceedings. Trusts are private agreements that usually require no court supervision. So, signing away valuable property can feel like a major step, but it keeps your living situation unchanged and can pay off in the long run.
Avoiding Capital Gains Taxes
But suppose you later decide to sell the house and move into a smaller place. That could pose a capital-gains tax problem. If the trust hasn’t been carefully drafted, and it (not you) sells the home, the personal residence exemption would be lost. Capital gains tax could be prohibitive if the house has appreciated in value since the date of purchase.
A similar problem arises when it comes time for your children to inherit. If the trust is not carefully drafted to cover this eventuality, your heirs will lose the basis-adjustment tax break, which could cost them dearly. The basis adjustment allows the inherited value of the home, for capital-gains purposes, to be calculated not from the date you originally purchased the home but from the date your heirs inherit the property.
For example, imagine you paid $100,000 for your house in 1980, and it was well-maintained; when you pass away, the house is worth $300,000. Now, suppose the home is titled in the trust name, but the trust wasn’t written carefully to preserve the basis adjustment that would otherwise be allowed for inherited property. If the children sell the home for $350,000 in those circumstances, they would have made a taxable profit of around $250,000.
With the basis adjustment, however, profit would be calculated from the $300,000 mark as of the date of inheritance. This would leave your children with a tax bill on the $50,000 profit, not $250,000. This tax advantage comes from “stepping up” the taxable basis to the market price at the time of inheritance. As a result, your family receives more value by having to pay less taxes.
Protecting Your Assets for Heirs with a Medicaid Asset Protection Trust
First, the irrevocable trust takes the home out of your name and, instead, titles it to the trust. Medicaid rules view the owner of the property as the trust, not you, and that’s why you want to reduce your assets and qualify for Medicaid assistance.
Next, to preserve the personal residence capital-gains exemption, an irrevocable trust creates what’s known as grantor trust tax rules. Current tax rules allow property owned by this kind of trust to remain part of your estate for tax purposes and exempt from capital gains up to specified value limits, depending on your state and whether you file single or jointly as a married couple.
Even though the Medicaid Asset Protection Trust has ownership, you are still allowed to take the personal residence exemption. For capital gains, the IRS disregards the trust. However, as of 2023, assets transferred to an irrevocable trust before your death that are not subject to estate tax will not receive a step-up in basis.
To minimize your heirs’ exposure to capital gains tax in the future, the trust also provides a limited testamentary power of appointment. The appointment power permits you to designate someone with the authority to disburse your assets to chosen beneficiaries, provided those beneficiaries are limited to family or charities.
The limited power of appointment allows your assets to pass down to beneficiaries while preserving eligibility for both the tax basis adjustment and Medicaid.
The right estate planning strategies neatly solve Medicaid planning and tax issues by:
- Transferring the house title to the irrevocable trust while retaining your right to live in it, avoiding Medicaid penalties or reimbursement problems after five years
- Creating grantor trust status to preserve the residence exemption, avoiding capital gains tax on the sale during your lifetime
- On your death, the adjusted-basis tax break is preserved by designating a person or entity to administer the assets in the trust
The attorneys at Elville and Associates carefully draft these trusts to comply with current rules regarding ownership and taxes to prepare for Medicaid eligibility and protect your assets for your family.
Consult With Your Estate Planning/Elder Law Attorney
You may have a will, but it may not be able to protect your assets unless it becomes part of an estate plan that includes an irrevocable trust.
Your estate planning/elder law attorney may find that your will or estate plan isn’t Medicaid-qualified or that it lacks provisions for a grantor trust or the necessary powers of attorney. However, this is not a reason to worry, as an irrevocable trust can be changed.
Trusts that fail to account for various contingencies can happen if your attorney is not qualified to draft more complex documents nor if they don’t discuss your goals and plans with you through the estate planning process. Many states have passed legislation permitting the alteration of trusts for tax reasons, even if the trusts are nominally irrevocable.
Set a consultation with the attorneys at Elville and Associates to discuss if a Medicaid Asset Protection Trust is right for your family and your situation. They’ll work with you to understand your situation, answer your specific questions, and create solutions and a path forward for you.
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Today, more than 18 million American military veterans are living in the United States. To address the needs of this population, the U.S. Department of Veterans Affairs (VA) has expanded health, education, home loan, and other veteran benefits over the years.
VA disability payments are one of the most common entitlements veterans overlook. However, they are often one of the most essential to their well-being. Among the reasons that veterans miss out on VA disability benefits are the following:
- Confusion about the types of benefit programs and how to qualify
- Complexity of the application process
- Previous claim denial
Understanding How to Qualify as a Disabled Veteran
One misconception is that combat operations involvement is a requirement to be eligible. To qualify for VA compensation or disability, a veteran does not need to have seen combat. They also do not have to have an orthopedic condition such as missing limbs or damaged muscles.
Any veteran whose service received an honorable discharge from active-duty military service may qualify for VA compensation or disability benefits. Those who are eligible also include individuals in the National Guard or Reserve mobilized or activated for service.
You may currently cope with a condition or an illness that affects your mind or body and links back to your military service. In that case, you may have criteria qualifying you to receive a VA Disability Rating. Even common conditions like back or knee pain, GERD, PTSD, and more may relate to your military service.
Your service may cause problems that develop years later, like exposure to environmental toxins or Agent Orange. Even without active-duty medical records, these medical conditions can be service-connected by your physician and attorney. Whether your military service directly caused or only aggravated your disability, it is worth determining whether you merit service-connected disability benefits.
Have Your Attorney Handle All the Paperwork
Undergoing a claims process for VA disability benefits can be lengthy and daunting. Sadly, many veterans give up once they see the application. Free government services exist that help guide veterans through the proper paperwork. However, meeting with these service providers can sometimes be difficult because of high caseloads.
A negative first experience may cause significant delays, turning a veteran away from the process and much-needed benefits. A VA-accredited attorney with Elville and Associates can prove essential to your application’s success. They can be responsible for filling out the application correctly, attaching necessary documents, and submitting them ahead of deadlines.
Disability Claim Denial
It can be disheartening to receive an application denial. However, denials are often a result of filing incorrect forms or missing important application deadlines. It isn’t easy to know which documents are appropriate, especially if you have previously faced a denial of benefits.
A general appeal form to amend an initial denial contains various options that can further complicate your appeal. Your attorney will understand the highly sensitive nature of disability claims and the timing for Intent to File, Presumptive Period, and other appeal or supplemental claims. Failure to meet claim deadlines can result in continued denial of benefits.
Compensation and Pension (C&P) Exam
After overcoming complex claims paperwork and submitting all requirements, veterans may face another hurdle. The VA may schedule a Compensation and Pension (C&P) Examination.
The VA may require a veteran seeking disability benefits to have this medical exam, which assesses the severity of the veteran’s condition. The VA can deny a veteran’s application if they do not attend the evaluations. Results of the C&P Examination become part of your file, and attendance is crucial for claim approval.
Confusing Disability With Other VA Benefits
VA disability benefits do not prohibit employment. Veterans may confuse disability benefits with a VA program called Total Disability Individual Unemployability (TDIU). To qualify for TDIU, a veteran must be unable to keep or obtain a job. Veterans with a VA rating for a disability can receive benefits and still maintain employment without limitation.
Often a veteran will confuse Social Security Disability benefits with VA service-connected disability benefits. These are two separate programs, and you can be eligible for both. Qualifying for Social Security disability benefits will not automatically make a veteran eligible for VA disability benefits, and vice versa.
Mental health claims and treatment can also create confusing issues for veterans regarding their legal rights. A VA mental health rating and mental incompetence are not the same things. A VA rating for mental health will not put a veteran at risk of losing constitutionally protected rights. There are instances where an individual can be mentally incompetent without the presence of depression, anxiety related to chronic pain, or PTSD.
Mental health benefit claims are as important and valid as physical claims. Before you discount these powerful claims, consult with your attorney. They can help you understand your situation and protect benefits that may be due to you.
Filing VA claims can be stressful, particularly when you have a limited understanding of the forms, procedures, and deadlines. Other complex legal issues can also lead to benefits claim denials. Be sure to take a practical approach to processing applications that maximizes your ability to qualify and secure approval. US military veterans seeking VA disability have a much better chance at success with the guidance of an attorney, so be sure to seek guidance and counsel from the attorneys at Elville and Associates for peace of mind and a more seamless process from start to end.
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Elder law encompasses a wide range of legal matters that affect older individuals and families. Attorneys who practice elder law advocate for seniors and execute legal plans to assist them in living better lives.
Their expertise may encompass estate planning, as well as planning for retirement, Social Security, and long-term medical care. This specialty of the legal profession remains crucial for the well-being of this ever-increasing population.
According to the U.S. Census Bureau, more than 54 million seniors live in the U.S. This accounts for more than 16 percent of the total population. The number of American seniors is on track to grow to roughly 98 million by 2060.
Contemplating financial matters and making long-term life decisions via estate planning can be an emotional journey yet, at the same time, a rewarding one. Managing your assets wisely as you age is crucial as you plan to provide for the family members who will survive you. Qualified Maryland elder law attorneys, such as the attorneys at Elville and Associates, know how to plan strategies that address such concerns.
Keeping Records and Detailed Instructions
Many people want to ensure orderly asset protection, management, and eventual administration while having flexibility if circumstances change. Wealth preservation is the main priority, and it requires accuracy.
For example, over time, you may come to have assets in multiple states. You want to be sure to document the status of any community or tenant-occupied property. An inventory of small business assets and their dispersal may also be necessary. You’ll be discussing financial information and highly personal matters with your Maryland elder law attorney, so trust is critical.
Individuals often want to take steps to ensure their loved ones will inherit their estate. They may also seek to name their children as legal guardians in the event they become unable to handle their own affairs. Putting together detailed instructions can help reduce conflicts and minimize legal expenses. In turn, this may even help reduce taxes as well, ensuring heirs receive the full value of their portion of the estate.
Qualified Maryland elder law attorneys can provide guidance on each of these fronts.
Shaping an Estate Plan
No matter your estate’s size, creating a comprehensive estate strategy is critical, nor is estate planning a “set it and forget it” process. Family needs, as well as new issues regarding state laws and regulations, are always evolving. Periodic reviews of existing documents with a Maryland elder law attorney will keep your planning current in an ever-changing world.
Executing a will or acting as trustee of an estate frequently requires the support of a professional. Finding a Maryland elder law attorney whose primary focus is estate planning will give you options to achieve your goals. With knowledge of Maryland statutes, Elville and Associates’ attorneys can develop an asset protection strategy, update your estate plan over time, and administer your estate with efficiency.
However, keep in mind that putting your affairs in order requires more than creating a will.
Comprehensive estate plans may include other foundational documents, including trusts and health care directives. Long-term care planning provisions and specific durable powers of attorney are crucial, too. If you have minor children or a loved one with special needs, you can identify a guardian to care for them.
Your estate plan may include retirement housing preferences, long-term care plans, and how to cover those costs. Maryland elder law attorneys can also assist with decisions concerning probate and gift, income, and estate tax matters.
Designating Agents to Make Decisions on Your Behalf
While you are still healthy, work with an attorney to choose people you trust to make future financial and medical decisions on your behalf. If you ever become unable to handle your own affairs, these appointees will be there to support your best interests.
Should you ever face a dementia diagnosis, it may still be possible for you to sign legal documents. Capacity requirements for each legal document may vary, however. An experienced elder law attorney can help you understand and complete the proper legal documents in these cases.
10 Things to Look for in a Maryland Elder Law Attorney
- Provides a warm, empathetic approach and caring environment.
- Attorney is a counselor and not just a technician.
- Clients are provided with a unique estate planning or elder law planning experience, and not just a transaction.
- Provides an interactive planning process in partnership with clients — emphasis on client’s goals (not a paternalistic approach).
- Ensures Financial Advisor/ CPA — collaborative approach with the goal of an inclusive advisory team effort; works in good faith with Financial Advisors and/or CPAs to implement all appropriate solutions in the best interests of the client.
- Timely and structured process — encourages clients to complete the planning process and discourages procrastination.
- Asset alignment — planning attorney and firm’s asset alignment coordinator oversee and ensure proper asset alignment with all estate and elder law plans (client not abandoned with unfunded plan).
- Client education and understanding — to the extent possible, the attorney ensures that client understands and has at least a working knowledge of their planning documents and choices.
- Follow up — maintains ongoing contact with clients via annual continuing education and Client Care Programs to encourage clients to meet with attorney at least bi-annually and facilitates client-attorney contact. throughout the years via newsletter and other communications.
- Value-added services — provides client access to Client Care Program as the primary path towards achieving “perfection in planning” and access to the latest in contemporary estate planning ancillary solutions for “complete” estate planning, elder care planning, and special needs planning.
Selecting an attorney is an important decision and one you want to consider being a lifetime relationship. Partner with someone who offers clear communication, options, and ideas that align with your family’s and your values.
To schedule a consultation and learn how Elville and Associates can help you achieve your planning goals, visit us here, or contact Community Relations Director Jeff Stauffer at jeff@elvilleassociates.com or 443-393-7696 x117.
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Webinar – Guardianship What Is It, When Is it Appropriate, and What Are Some Alternatives?
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A power of attorney designates a trusted individual to make decisions or conduct transactions on your behalf. They could be related to personal finances, business operations, or medical needs and used for a single immediate purpose or an ongoing situation.
This may sound pretty straightforward. You might be tempted to download a free power of attorney form to take care of it when looking for services online. But will that be enough to ensure the document is legally recognized, important matters are handled quickly, and your specific instructions are followed? More than likely – no.
Understanding Powers of Attorney
Implementing Power of Attorney (POA) documents is an integral part of your estate planning process. All states recognize powers of attorney, but rules and requirements will differ from state to state. The POA document gives one or more individuals the legal authority to act as your agent on your behalf.
Depending on which POA you choose, you may limit the agent’s power to a particular activity. This might include things like real estate sales or broader applications.
A power of attorney may give permanent or temporary authority to the agent you appoint. You can set the POA up to invoke immediately. Or, you can have it activated when a future event, such as a physical disability, occurs. The latter is a “springing” power of attorney.
Other types of powers of attorney include limited, durable, and general POAs.
For example, a general POA permits the agent to deal with any matters on your behalf that state law allows. Under such an agreement, the agent may sign checks, handle bank accounts, sell property, manage assets, and file taxes when you are unable. This POA has a wide latitude of authority. Therefore, there needs to be coordination between you and your agent to ensure your best interests are always represented.
The better-known powers of attorney are durable and take effect if you are incapacitated. The word “durable” means the powers will remain intact even when you can no longer manage your affairs. There are two types of durable POAs; one handles financial matters, and the other manages medical affairs, often called a health care directive.
You also may rescind powers of attorney. However, most states will require written notice of revocation to the named individual or entity.
Consider the following scenarios when free, online powers of attorney don’t prove as helpful as you may have hoped.
Financial Power of Attorney
Suppose a business colleague wants you to take care of their business operations. You become responsible for making critical decisions while they are out of the country.
They give you POA by using a free online legal document that promises to contain everything you need to comply with state law. The document seems noticeably concise. You wonder why legal documents need to be so lengthy and expensive in the first place.
When you go to your friend’s bank to transfer funds, the bank denies you access. You discover why: The bank requires different forms and rules for a power of attorney. Your friend had no knowledge of these requirements, and now you won’t be able to contact them for several weeks.
When you track them down, they must fill out additional forms with the bank and get them notarized before you attempt any more transactions. The legal document failed.
Health Care or Medical Power of Attorney
You receive a call about a good friend who has suffered a head injury and needs urgent nursing home care. He is looking at long-term care costs between $5,000 and $8,000 a month for rehabilitation. However, you know he lives on a fixed income of only $2,500 a month from Social Security. Medicare doesn’t cover long-term care services, and his income is too high to qualify for assistance from Medicaid.
On top of facing a financial crisis, someone needs to make decisions about the level and cost of care he can afford. Your friend doesn’t have the capacity to make them in his current situation.
You know what he has expressed in the past about specific treatments and efforts to prolong his life. You even witnessed the online form he used for a healthcare power of attorney.
However, his family members contest the document. Meanwhile, the doctors won’t listen to you without more specific advanced health care directives and a signed HIPAA release form. Another legal document failure.
The Dangers of Free Online Documents
How can online documents be legally approved for use by the public but insufficient when you need to use them? The free power of attorney documents that you may have believed would prove helpful in the scenarios above only offered general information for the most basic needs. With so many variables in finances, business, and medical situations, the language is often not specific enough to address the unique problem.
When you get a POA through an estate planning firm, each document contains wording regarding several circumstances and refers to other critical documents, like living wills and trusts. Additional details instruct the person you’ve chosen to act on your behalf when dealing with decisions regarding banking and medical institutions or personnel. For example, it may permit them to set up another trust, reorganize assets, open and close banking or investment accounts, and require healthcare professionals to comply with your medical wishes.
Connect With an Estate Planning Attorney
A free online power of attorney could cost you valuable time, money, and frustration. Many other legal considerations determine how your power of attorney will work.
As opposed to a free power of attorney document online, the best way to establish powers of attorney is to contact the experienced estate planning attorneys at Elville and Associates. Your attorney can go over common pitfalls and discuss options on how to avoid them. They also understand the criteria for identifying the individuals or agents to represent your interests, help you identify your goals, answer your specific questions, and help create solutions and a path forward for you.
When you rely on legal documents to get an important job done or simplify decisions in an emergency, it more than likely won’t work as promised or intended. Consult with a qualified attorney at Elville and Associates to ensure you are prepared to handle any situation. Contact us here or reach out to us at 443-393-7696.
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The Essentials of Estate Planning and Elder Law
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For nearly a decade, people with disabilities have had the option to accumulate savings in a special tax-free account – without risking their means-tested public benefits. In 2024, the annual limit on how much money one can deposit into these savings vehicles, known as ABLE accounts, will rise, allowing individuals to add up to $18,000 per year.
What Is an ABLE Account?
Many people across the disability community rely on such government assistance as Medicaid, Supplemental Nutrition Assistance Program (SNAP) benefits, or Supplemental Security Income (SSI). Yet having too many assets to their name can disqualify them from receiving these often critical benefits. For example, in most states, the resource limit to qualify for Medicaid is just $2,000. In 2014, Congress signed the Achieving a Better Life Experience (ABLE) Act into law to help address this issue.
Individuals with an ABLE account can save up to a total of $100,000 – tax-free – while remaining eligible for public assistance programs. Family members, friends, and others can make contributions to the account, too. The disabled person can then use these funds to help maintain their independence by spending them on disability-related expenses, including assistive technologies, education, transportation needs, vacations, legal fees, and health care.
Unlike a special needs trust (SNT), an ABLE account can be opened by the individual with the disability. This offers them more control over the account funds compared with an SNT. ABLE accounts and special needs trusts often work in tandem as part of a well-developed special needs plan. You’ll want to consult with your special needs planning attorney at Elville and Associates to discuss how these tools work together to help achieve the best results for your loved one with disabilities.
Starting in 2024, the annual limit on contributions to ABLE accounts will be $18,000, up from $17,000 in 2023. Through the end of 2025, ABLE account owners who work can contribute their employment income to these savings vehicles even beyond the per-year deposit limit. (Learn more about these rules under the ABLE to Work Act.)
The idea for these accounts derived from the concept of a 529 college savings plan. Similar to a 529 plan, funds in an ABLE account grow tax-deferred over time. In addition, each state administers its own ABLE account program.
To qualify, you must meet the Social Security Administration’s strict definition of “disabled.” You also must have incurred your disability before age 26. (Note that the age cutoff will shift to age 46 come 2026. According to estimates, this age adjustment will result in roughly 6 million more individuals becoming eligible to open these types of savings accounts.)
Why Open an ABLE Account?
People with disabilities are among those most at risk for financial disaster. According to research, just 10 percent of people of working age who are living with a disability are financially healthy.
ABLE Accounts, or 529A accounts, can serve as a form of future financial support for these individuals. Yet the vast majority of those who could benefit from these accounts remain unaware of them. As of 2022, 8 million people were eligible for this type of account, yet a mere 120,000 had one in place.
Get Support With ABLE Accounts
To learn more about setting up this type of savings account, consult with the special needs planning attorneys here at Elville and Associates – and also learn how an ABLE account can be part of a comprehensive estate and special needs plan for yourself of your loved one with a disability. Initial consultations are typically free and the most ideal way for your attorney to understand your individual or family’s situation, answer your specific questions, and create solutions and a path forward for you.
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