Estate Planning and Retirement Considerations for Late-in-Life Parents

Older parents are becoming more common, driven in part by changing cultural mores and surrogate motherhood. Comedian and author Steve Martin had his first child at age 67. Singer Billy Joel just welcomed his third daughter. Janet Jackson had a child at age 50. But later-in-life parents have some special estate planning and retirement considerations.

The first consideration is to make sure you have an estate plan and that the estate plan is up to date. One of the most important functions of an estate plan is to name a guardian for your children in your will, and this goes double for a parent having children late in life. If you don't name someone to act as guardian, the court will choose the guardian. Because the court doesn't know your kids like you do, the person they choose may not be ideal.

In addition to naming a guardian, you may also want to set up a trust for your children so that your assets are set aside for them when they get older. If the child is the product of a second marriage, a trust may be particularly important. A trust can give your spouse rights, but allow someone else — the trustee — the power to manage the property and protect it for the next generation. If you have older children, a trust could, for example, provide for a younger child's college education and then divide the remaining amount among all the children.

Another consideration is retirement savings. Financial advisors generally recommend prioritizing saving for your own retirement over saving for college because students have the ability to borrow money for college while it is tougher to borrow for retirement. One advantage of being an older parent is that you may be more financially stable, making it easier to save for both. Also, if you are retired when your children go to college, they may qualify for more financial aid. Older parents should make sure they have a high level of life insurance and extend term policies to last through the college years.

When to take Social Security is another consideration. Children can receive benefits on a parent’s work record if the parent is receiving benefits too. To be eligible, the child must be under age 18, under age 19 but still in elementary school or high school, or over age 18 but have become mentally or physically disabled prior to age 22. Children generally receive an amount equal to one-half of the parent's primary insurance amount (PIA), up to a “family maximum” benefit. You will need to calculate whether the child's benefit makes it worth it to collect benefits early rather than wait to collect at your full retirement age or at age 70.

Costs of Some New Long-Term Care Insurance Policies Going Down in 2018

While long-term care insurance costs are up in general, some policies are going down in 2018, according to the 2018 Long Term Care Insurance Price Index, an annual report from the American Association for Long-Term Care Insurance (AALTCI), an industry group.

A married couple who are both 60 years old would pay an average of $3,490 a year combined for a total of $333,000 of long-term care insurance coverage when they reach age 85. This is down from 2017, when the association reported that a couple could expect to pay $3,790 for the same level of coverage. Jesse Slome, the AALTCI’s director, cites two reasons for the change: “There are fewer insurers offering traditional long-term care insurance policies currently and some of the higher priced insurers sell so few policies that we excluded them from this year’s study as they really were not representative of the market conditions.”

Rates for single men and women have gone up in 2018, however. A single 55-year-old man can expect to pay an average of $1,870 a year for $164,000 worth of coverage, up from $1,665 in 2017. The same policy for a single woman averages $2,965 a year, up from $2,600 in 2017. Overall, women still pay more than men.

One thing that remains the same year to year is the importance of shopping around. The survey shows that costs for virtually identical policy coverage vary significantly from one insurer to the next.

This year’s index compares policies sold in Illinois and was conducted in January 2018.

For the association's 2018 index showing average prices for common scenarios, go here: http://www.aaltci.org/news/wp-content/uploads/2018/01/2018-Price-Index-LTC.pdf

 

Estate Tax and The Tax Cuts and Jobs Act

Estate Tax: Prior to the Tax Cuts and Jobs Act passed by Congress and signed by the President just prior to Christmas, the Federal Estate Tax exemption amount was scheduled to be $5,600,000 for persons dying in 2018. For married couples, the exemption would be $11,200,000. These numbers are derived from the amount of five million dollars stated in the law plus an adjustment for inflation each year. The new tax law doubles this five million exemption plus the same inflation adjustment. This results in an increase to $11.18 million (estimate) and $22.36 million (estimate), respectively, indexed for inflation. The tax rate for those few estates subject to taxation remains at approximately 40 percent. Residents of Ohio do not need to worry about a State estate tax since Ohio repealed its estate tax effective in 2013.

Perpetual Dynasty Trust

“I saw behind me those who had gone, and before me those who are to come. I looked back and saw my father, and his father, and all our fathers, and in front to see my son, and his son, and the sons upon sons beyond.
And their eyes were my eyes.”
Richard Llewellyn

During the holidays we spend time with our family and extended family. We see our family’s past in the faces of the older members and our family’s future in the faces of the young children. Estate planning is about families. We all have different family relationships and perhaps some chosen beneficiaries may not even be family members. However, your estate plan necessarily involves looking to the future after you have passed away. The most common estate plan is of course to make a full distribution of the estate to the children or other chosen beneficiaries. However, there is no reason you can’t also make some provision for grandchildren or other younger generations in your estate plan. The Perpetual Dynasty Trust can be a valuable part of your estate plan to provide for the future of your grandchildren. This trust can assure that there are funds available for the benefit of future generations. It can provide incentives to encourage education or the achievement of other goals. It can also provide a safety net in case of emergencies where funds are needed simply for basic support and health. For more information please go to  http://www.michaelmillonig.com/practice-areas/trusts/#Dynasty

Ohio Medicaid Figures 2018

The Ohio Department of Medicaid just published the new inflation adjusted figures for 2018 that are important for Medicaid determinations. These new figures are shown below. For a more detailed explanation see http://www.michaelmillonig.com/ohio-medicaid/

Community spouse resource allowance maximum: $123,600
Community spouse resource allowance minimum: 24,720
Community Spouse monthly income allowance max : 3090
Special income level (for income eligibility and
Miller trusts): 2250
Home Equity Limit: 572,000

Planning for a Child with Special Needs

Americans are living longer than they did in years past, including those with disabilities. According to one count, 730,000 people with developmental disabilities living with caregivers who are 60 or older. This figure does not include adult children with other forms of disability nor those who live separately, but still depend on their families for vital support.

When these caregivers can no longer care for their children due to their own disability or death, the responsibility often falls on siblings, other family members, and the community. In many cases, expenses increase dramatically when care and guidance provided by parents must instead be provided by a professional for a fee.

Planning by parents can make all the difference in the life of the child with a disability, as well as that of his or her siblings who may be left with the responsibility for caretaking (on top of their own careers and caring for their own families and, possibly, ailing parents). Any plan should include the following components:

  • A plan of care that carefully establishes where the child with special needs will live, who will be responsible for assisting the person with special needs with decision making and who will monitor the person with special needs’ care.  It will help everyone involved if the parents create a written statement of their wishes for their child’s care. They know him better than anyone else. They can explain what helps, what hurts, what scares their child (who, of course, is an adult), and what reassures him. When the parents are gone, their knowledge will go with them unless they pass it on.
  • At least one type of special needs trust.  In almost all cases where a parent will leave funds at death to a disabled child, this should be done in the form of a trust. Trusts set up for the care of a disabled child generally are called “supplemental” or “special” needs trusts.  Trusts designed to aid a person with special needs are commonly known as “special needs trusts”.  There are three main types of special needs trusts: the first-party trust, the third-party trust, and the pooled trust. All three name the person with special needs as the beneficiary, but they differ in several significant ways, and each type of trust can be useful in its own way.  Choosing a trustee is also an important issue in supplemental needs trusts. Most people do not have the expertise to manage a trust, even if they are family members, and so a professional trustee may be a wise choice. For those who may be uncomfortable with the idea of an outsider managing a loved one’s affairs, it is possible to simultaneously appoint a trust “protector,” who has the power to review accounts and to hire and fire trustees, and a trust “advisor,” who instructs the trustee on the beneficiary’s needs. 
  • Life insurance.  A parent with a child with special needs should consider buying life insurance to fund the supplemental needs trust set up for the child’s support. What may look like a substantial sum to leave in trust today may run out after several years of paying for care that the parent had previously provided. The more resources available, the better the support that can be provided the child. And if both parents are alive, the cost of “second-to-die” insurance–payable only when the second of the two parents passes away–can be surprisingly low.

For more on special needs trusts and special needs planning, visit our SpecialNeedsAnswers Web site at www.specialneedsanswers.com. While some ElderLawAnswers attorneys practice in this area of the law, all attorneys listed on SpecialNeedsAnswers devote a significant part of their practices to working with individuals with special needs and with their families to plan for the future.

Three Reasons Why Giving Your House to Your Children Isn't the Best Way to Protect It From Medicaid

You may be afraid of losing your home if you have to enter a nursing home and apply for Medicaid. While this fear is well-founded, transferring the home to your children is usually not the best way to protect it.

Although you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, the state could file a claim against the house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called “estate recovery.” If you want to protect your home from this recovery, you may be tempted to give it to your children. Here are three reasons not to:

1. Medicaid ineligibility. Transferring your house to your children (or someone else) may make you ineligible for Medicaid for a period of time. The state Medicaid agency looks at any transfers made within five years of the Medicaid application. If you made a transfer for less than market value within that time period, the state will impose a penalty period during which you will not be eligible for benefits. Depending on the house’s value, the period of Medicaid ineligibility could stretch on for years, and it would not start until the Medicaid applicant is almost completely out of money.

There are circumstances under which you can transfer a home without penalty, however, so consult a qualified elder law attorney before making any transfers. You may freely transfer your home to the following individuals without incurring a transfer penalty:

  • Your spouse
  • A child who is under age 21 or who is blind or disabled
  • Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
  • A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home
  • A “caretaker child,” who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's institutionalization and who during that period provided care that allowed the applicant to avoid a nursing home stay.

2. Loss of control. By transferring your house to your children, you will no longer own the house, which means you will not have control of it. Your children can do what they want with it. In addition, if your children are sued or get divorced, the house will be vulnerable to their creditors.

3. Adverse tax consequences. Inherited property receives a “step up” in basis when you die, which means the basis is the current value of the property. However, when you give property to a child, the tax basis for the property is the same price that you purchased the property for. If your child sells the house after you die, he or she would have to pay capital gains taxes on the difference between the tax basis and the selling price. The only way to avoid some or all of the tax is for the child to live in the house for at least two years before selling it. In that case, the child can exclude up to $250,000 ($500,000 for a couple) of capital gains from taxes.

There are other ways to protect a house from Medicaid estate recovery, including putting the home in a trust. To find out the best option in your circumstances, consult with your elder law attorney. 

GOP Tax Plan Could Deal Blow to Seniors Paying for Long-Term Care

The tax plan put forward by the Republican-led House of Representatives would eliminate many current deductions, and getting rid of one of them in particular could deal a serious financial blow to seniors and individuals with disabilities. The plan proposes eliminating the medical expense deduction, a change that will especially affect those needing long-term care.

Currently, taxpayers can deduct certain medical expenses from their income taxes if the expenses add up to more than 10 percent of adjusted gross income. These expenses can include health insurance premiums, deductibles, nursing home fees, home health care costs and even assisted living fees, if a doctor certifies that the individual must live in the facility due to health care or cognitive needs.

While most taxpayers don't have health care expenditures exceeding 10 percent of their income, many seniors and others with disabilities do. According to the IRS, 8.8 million households — almost 6 percent of tax filers — claimed medical deductions in 2015. The AARP estimates that 74 percent of those who take the deduction are age 50 or over and half have incomes of $50,000 or less. 

“It tends to be mostly … older people who do not have long-term care insurance, and end up in a nursing home,” Richard Kaplan, a professor who specializes in tax policy and elder law at the University of Illinois College of Law, told CNBC. “For people who are receiving long-term care and are paying for it themselves, this is going to be a huge deal.”

For them, having the deduction can mean that they do not run out of funds and have to rely on Medicaid, or are at least able to postpone applying for Medicaid. Eliminating the medical expense deduction will likely mean that more people will spend down their assets more quickly, requiring them to apply for Medicaid. In addition, adult children who pay for their parents' care can sometimes use the deduction. For more information about how ending the medical deduction might affect you, click here.

In addition to eliminating the medical expense deduction, the tax bill cuts corporate tax rates. The bill’s proponents argue that the tax changes will unleash huge economic growth that will result in higher tax revenue. However, if the bill’s supporters are wrong and the growth in tax revenues is not as large as hoped, the reduction in tax revenues will likely cause sharp cuts in government spending or an increase in budget deficits, or both. A reduction in spending could affect seniors and individuals with disabilities through cuts to Medicaid, Medicare, Section 8, Meals on Wheels, and food stamps.

The tax proposal would benefit a small number of wealthy seniors by eliminating the estate tax. Under the proposal, the estate tax exemption will be increased from $5.45 million to $10 million for individuals dying in 2018 through 2023. After 2023, the estate tax will be eliminated completely. The Tax Policy Center estimates that only about 0.2 percent of estates pay any federal tax under current rules.

The House’s tax plan is not final, and the Senate plan preserves the medical expense deduction.  The two bills, if passed, must be reconciled.

For an AARP fact sheet on Medicare beneficiaries who spend at least 10 percent of their income on out-of-pocket medical expenses, click here.

HOME FUNERAL RIGHTS IN OHIO

Funerals can be very expensive. You can avoid the greatest expense by simply not having a service at a funeral home. However, there are other things that need to be done that require the services of a funeral home. The law makes it very difficult to avoid using a funeral home. The first problem will be to decide where to transport the body of the deceased. If you cannot immediately arrange for a burial, which requires you to have a death certificate and burial or cremation permit, the body needs to go somewhere. This is generally done by a funeral home which will have facilities to store the body temporarily. The family will be under some pressure to move the body since most locations (e.g., nursing facility, home or other community location) cannot just keep the body for any period of time. A hospital or nursing facility might have a refrigeration unit for storage. A funeral director is authorized by Ohio law to arrange for the issuance of the death certificate. It is very difficult to do both of these things by yourself.

The procedure below outlines how you can make all these arrangements yourself under Ohio law. See my webpage on funeral planning for other suggestions on how to save money on a funeral. Click here http://www.michaelmillonig.com/practice-areas/funerals-burial/

1. The funeral director or “other person in charge of final disposition” must register the death with Ohio County Bureau of Vital Statistics. The death certificate form is issued and must be signed by the attending physician or coroner. O.R.C. §3705.16. If a funeral home is not preparing the death certificate, then you need to contact the Ohio Dept. of Health, Vital Statistics, in Columbus to get the death certificate. You cannot contact the local County Dept.

2. Call the County Coroner to report the death if the person died as a result of a crime, casualty, suicide, child under age 2, developmentally disabled person, or death in any suspicious or unusual manner. O.R.C. §313.12. If no funeral home is involved and/or you are going to have a home funeral, it is probably best to call the Coroner or ask the hospital or nursing home to call the Coroner.

3. Call a funeral home for transport to a cemetery or crematory. If you do not want to use a funeral home, call an Ambulance Service which may be willing to transport the body to a cemetery or crematory. You will need to have the burial or cremation permit.

4. Obtain a burial or cremation permit from the County Bureau of Vital Statistics. O.R.C. §3705.17 & O.R.C. §4717.22. The death certificate must be issued first.

5. Make cemetery arrangements for burial or cremation.

6. Plan a memorial service at a community facility or family residence or a grave site/cemetery service. You do not need to use a funeral home. The right for a home funeral is preserved in Ohio law. O.R.C. §4717.12.

Consumer Reports: Who Will Care for You?

The October issue of Consumer Reports has its cover story entitled “Who Will Care for You?” The article focuses on elder care decisions at the assisted-living level. See https://www.consumerreports.org/cro/index.htm

It is generally an instructive and helpful article. I am going to add my own comments and information to go along with this article.

The first obvious answer to the question posed by the article is missed by Consumer Reports. Many people would answer this question by saying that a family member will take care of them. That is not necessarily the best option but is often the plan for many people. More importantly, it is an important issue to be addressed in this context. It is very difficult to care for a family member 24/7 year after year. This may work out for some period of time if the person’s needs are not that demanding. However, at some point in time it simply becomes too much and a person does need to move to a nursing facility. I never discourage any of my clients to at least not try to care for a family member at home but the practical realities and the difficulty of doing so need to be addressed.

The article very accurately points out that the dividing line between an assisted living facility and a skilled nursing facility is not clear. This is true as a matter of the legal definitions and in practice. The first step in determining what type of care a person needs is to obtain a level of care assessment. This is usually done by a social worker, nurse or other personnel from a nursing facility. Is not usually done by doctor although it certainly could be.

As the article points out, some persons are in an assisted living facility longer than they should be. Conversely, some persons are told to leave and go to a skilled nursing facility when they really are not ready for that level of care yet. In these situations is very important for the resident to have a family member or other person monitoring their care and making sure they are not involuntarily transferred out of the assisted-living facility.

The article refers to use of an aging life care expert. This is the new terminology for what used to be referred to as a geriatric care manager. This person is usually a social worker or nurse by training. They can provide invaluable advice and advocacy for families and residents of nursing facilities. Our office had a geriatric care manager for over eight years. Our experience was that not too many clients saw the need for this service. Many people naively assume that the nursing home will take care of their loved one and that you should not need any additional help. In an ideal world this would be true. However, nursing facilities just do not have sufficient staff to be on top of every possible need or request of every resident. A geriatric care manager can make up for this shortfall and also provide valuable advice and training for the family members in dealing with the nursing facility. Our clients we helped with their loved ones greatly appreciated our assistance and expertise. However, most people just didn’t seem to see the need for this service which is why I no longer offer it. You can find an aging life care expert in your area at https://www.aginglifecare.org/ I also refer my clients to a local aging care life expert. http://www.1specialcare.com/

The article also wisely points out the empty promise made by many marketing representatives that “We will take care of your mother for the rest of her life.” “We will never kick her out.” This is pure sales talk and is probably not supported by any of the legal clauses in the resident’s contract. The resident will be kicked out if they run out of money and don’t pay their bill. The resident will also be kicked out if their medical condition worsens such that the facility is not capable of taking care of them. The marketing person perhaps doesn’t fully understand this or chooses to ignore that reality. Promises are also often made that there is some type of fund that can be used for residents who run out of money. Do not believe this. What this really means is that if the person runs out of money they will be able to apply for Medicaid which will pay the nursing home bill.

The article also gives good advice by saying you should never agree to a mandatory arbitration clause. However, simply crossing off a clause on the standard form may not be sufficient. Most nursing facilities will not allow you to do so but is worth a try.

I think the underlying theme and general point of the article is that you should get professional advice and as much reliable information as possible before making these elder care choices.