Welcome to My Blog

Attorney Michael MillonigHi,

I’m Michael Millonig, and you’ve managed to find your way to my blog.

As an attorney who specializes in elder law, I know that there are a lot of elder care issues facing adults with elderly parents that don’t necessarily either require, or get covered by, a lawyer. There are also many changes in elder law, especially Ohio’s Medicaid program, that happen quickly which make it difficult for me to keep you up to date with my email newsletter or seminars. That’s why I’ve started this blog.

Over time, I have no doubt that the topics will evolve, and that we’ll meander a little bit. Occasionally, I’m sure there will be some difficult discussions; but I hope that equally there will be some light-hearted ones. And regardless of the nature or tone of the topics, I’m looking for input from you, my dear readers. So, if there’s something you have a question about, something you’d like to know more about, or simply something you’d like to share, please don’t hesitate to reach out and let me know.

In the meantime, I’m going to get rolling and start writing about things like caring for aging parents, role reversal, supporting siblings with elderly parents, Ohio’s Medicaid program, revocable living trusts, powers of attorney, retirement communities, home-care, elder care and any other topic I can think of that might be useful to you.

Hopefully you enjoy what you find here, learn some things, and join the conversation.

Once again, welcome to my blog.

Michael  J.  Millonig
Certified as an Elder Law Attorney
by the National Elder Law Foundation since 1998
OSBA Board Certified Estate Planning
Trust and Probate Specialist
937-438-3977

Any legal information communicated in this blog is a general statement of the law.  It is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. These communications are not intended to create an attorney-client relationship. Please contact my office for an appointment if you have any legal questions.

Ohio Medicaid 2019 figures

Ohio just released the 2019 inflation adjusted figures for Medicaid eligibility determinations. Some of the more important numbers are as follows:

CSRA maximum $126,420
CSRA minimum $ 25,282
Special income level $2313/mo
Income standard $2313/mo.
(for QIT/Miller trusts)
MMMNA cap $3161/mo.

For a fuller explanation of the above, go to http://www.michaelmillonig.com/ohio-medicaid/

VA law transfer rule changes

The seminar described below on November 7 will present the recent changes to VA law affecting eligibility for the Aid & Attendance benefit. The most dramatic change is the enactment of a VA rule penalizing transfers. The transfer penalty period is similar to the Medicaid transfer rule but with some differences. This and other VA changes went into effect on 10/18/18.

For more information or to request a registration form, please send an email to sbmmlaw@swohio.twcbc.com

Continuing Education Seminars

The following continuing education seminars are scheduled for insurance agents, financial planning professionals and CPA’s. These seminars are continuing education seminars for credit and are not for consumers or clients.

ASSET PROTECTION PLANNING
FOR NURSING HOME COSTS
Wednesday, November 7, 2018 @ 8:30 AM – 11:45 AM

 

OHIO TRUST CODE
Wednesday, November 7, 2018 @ 1:15 PM – 4:30 PM

The above seminars have been approved for CE credit by the Ohio Department of Insurance. Michael Millonig LLC is registered with the Accountancy Board of Ohio as a Continuing Education Sponsor.

OHIO LONG TERM CARE PARTNERSHIP TRAINING
Thursday, November 8, 2018 @ 8:00 AM – 12:30 PM

Long Term Care Four Hour Partnership Training (Clear Cert Course #49509) Presented by Attorney Michael J. Millonig and Randy Gallas, Owner of the Long Term Care Insurance Agency in Kettering, Ohio.

For more information or to request a registration form, please send an email to sbmmlaw@swohio.twcbc.com

It’s Now Harder for Veterans to Qualify for Long-Term Care Benefits

The Department of Veterans Affairs (VA) has finalized new rules that make it more difficult to qualify for long-term care benefits. The rules establish an asset limit, a look-back period, and asset transfer penalties for claimants applying for VA pension benefits that require a showing of financial need. The principal such benefit for those needing long-term care is Aid and Attendance.

The VA offers Aid and Attendance to low-income veterans (or their spouses) who are in nursing homes or who need help at home with everyday tasks like dressing or bathing. Aid and Attendance provides money to those who need assistance.

Currently, to be eligible for Aid and Attendance a veteran (or the veteran’s surviving spouse) must meet certain income and asset limits. The asset limits aren’t specified, but $80,000 is the amount usually used. However, unlike with the Medicaid program, there historically have been no penalties if an applicant divests him- or herself of assets before applying. That is, before now you could transfer assets over the VA’s limit before applying for benefits and the transfers would not affect eligibility.

Not so anymore. The new regulations set a net worth limit of $123,600, which is the current maximum amount of assets (in 2018) that a Medicaid applicant’s spouse is allowed to retain. But in the case of the VA, this number will include both the applicant’s assets and income. It will be indexed to inflation in the same way that Social Security increases. An applicant’s house (up to a two-acre lot) will not count as an asset even if the applicant is currently living in a nursing home. Applicants will also be able to deduct medical expenses — now including payments to assisted living facilities, as a result of the new rules — from their income.

The regulations also establish a three-year look-back provision. Applicants will have to disclose all financial transactions they were involved in for three years before the application. Applicants who transferred assets to put themselves below the net worth limit within three years of applying for benefits will be subject to a penalty period that can last as long as five years. This penalty is a period of time during which the person who transferred assets is not eligible for VA benefits. There are exceptions to the penalty period for fraudulent transfers and for transfers to a trust for a child who is unable to “self-support.”

Under the new rules, the VA will determine a penalty period in months by dividing the amount transferred that would have put the applicant over the net worth limit by the maximum annual pension rate (MAPR) for a veteran with one dependent in need of aid and attendance. For example, assume the net worth limit is $123,600 and an applicant has a net worth of $115,000. The applicant transferred $30,000 to a friend during the look-back period. If the applicant had not transferred the $30,000, his net worth would have been $145,000, which exceeds the net worth limit by $21,400. The penalty period will be calculated based on $21,400, the amount the applicant transferred that put his assets over the net worth limit (145,000-123,600).

The new rules go into effect on October 18, 2018. The VA will disregard asset transfers made before that date. Applicants may still have time to get through the process before the rules are in place.

Veterans or their spouses who think they may be affected by the new rules should contact their attorney immediately. 

To read the new regulations, click here.

Aretha Franklin’s Lack of a Will Could Cause Huge Problems

According to court documents, legendary singer Aretha Franklin did not have a will when she died, opening up her estate to public scrutiny and potential problems. Failing to create an estate plan can cause lots of headaches for heirs, in addition to unnecessary costs.

Franklin, who died August 16, 2018, at age 76, left behind four sons, but no guidance on how to distribute her reported $80 million estate. According to The New York Times, her sons filed paperwork in Oakland County, Michigan, indicating that she died intestate — that is, without a will. The sons nominated Franklin’s niece to serve as the personal representative of the estate. When someone dies without a will, the estate is divided according to state law. Under Michigan law, an unmarried decedent's estate is distributed to his or her children. (Franklin had been married twice but long since divorced.)

Even if the “Queen of Soul” had wanted her estate to go solely to her children, by not having a will or trust, her estate will have to go through a long public probate process, which will likely cost her estate considerable money. If Franklin, who was quite private in life, had created an estate plan that included a will and a trust, she could have avoided probate and kept the details of her financial circumstances private.  Her eldest son reportedly has special needs, which presents other potential complications.  In addition, by not having a will, Franklin has opened her estate up to potential challenges that could drag out the probate process. Without a will to clearly state the decedent's intent, litigation resulting from family conflicts often eats into estates.

Also, because Franklin did not plan her estate, the estate will be subject to unnecessary estate taxation. Although she may not have been able to avoid estate tax entirely, there are steps she could have taken to reduce the amount her estate will have to pay.

“I was after her for a number of years to do a trust,” attorney Don Wilson, who represented Franklin in entertainment matters for the past 28 years, told the Detroit Free Press. “It would have expedited things and kept them out of probate, and kept things private.”

Estate planning is important even if you don't have Aretha Franklin's assets. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and when you want. It permits you to save as much as possible on taxes, court costs, and attorneys' fees; and it affords the comfort that your loved ones can mourn your loss without being simultaneously burdened with unnecessary red tape and financial confusion.

Contact your attorney to begin working on your estate plan now.

 

Fear of Losing Home to Medicaid Contributed to Elder Abuse Case

A California daughter and granddaughter's fear of losing their home to Medicaid may have contributed to a severe case of elder abuse. If the pair had consulted with an elder law attorney, they might have figured out a way to get their mother the care she needed and also protect their house.

Amanda Havens was sentenced to 17 years in prison for elder abuse after her grandmother, Dorothy Havens, was found neglected, with bedsores and open wounds, in the home they shared. Amanda's mother, Kathryn Havens, who also lived with Dorothy, is awaiting trial for second-degree murder. According to an article in the Record Searchlight, a local publication, Amanda and Kathryn knew Dorothy needed full-time care, but they did not apply for Medicaid on her behalf due to a fear that Medicaid would “take” the house.

It is a common misconception that the state will immediately take a Medicaid recipient's home. Nursing home residents do not automatically have to sell their homes in order to qualify for Medicaid. In some states, the home will not be considered a countable asset for Medicaid eligibility purposes as long as the nursing home resident intends to return home; in other states, the nursing home resident must prove a likelihood of returning home. The state may place a lien on the home, which means that if the home is sold, the Medicaid recipient would have to pay back the state for the amount of the lien.

After a Medicaid recipient dies, the state may attempt to recover Medicaid payments from the recipient's estate, which means the house would likely need to be sold. But there are things Medicaid recipients and their families can do to protect the home.

A Medicaid applicant can transfer the house to the following individuals and still be eligible for Medicaid:

  • The applicant's 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.

In addition, with a little advance planning, there are other ways to protect a house. A life estate can let a Medicaid applicant continue to live in the home, but allows the property to pass outside of probate to the applicant's beneficiaries. Certain trusts can also protect a house from estate recovery.

The moral is: Don't let a fear of Medicaid prevent you from getting your loved one the care they need. While the thought of losing a home is scary, there are things you can do to protect the house. To find out the best solution for you, consult with an elder law attorney. To find one near you, go here: https://www.elderlawanswers.com/USA-elder-law-attorneys.

To read the Record Searchlight article about the case, click here.

 

Medicare Extends Deadline for Relief from Part B Penalties

Medicare is extending its offer of relief from penalties for certain Medicare beneficiaries who enrolled in Medicare Part A and had coverage through the individual marketplace. Beneficiaries who qualify will be able to enroll in Medicare Part B without paying a penalty for late enrollment if they enroll by September 30, 2018.

Individuals who do not enroll in Medicare Part B when they first become eligible face a stiff penalty, unless they are still working and their employer’s plan is considered “primary.” For each year that these individuals put off enrolling, their monthly premium increases by 10 percent — permanently.

Some people with marketplace plans – that is, plans purchased by individuals or families, not through employers — did not enroll in Medicare Part B when they were first eligible. Purchasing a marketplace plan with financial assistance from the Affordable Care Act (aka Obamacare) can be cheaper than enrolling in Medicare Part B. However, Medicare recipients are not eligible for marketplace financial assistance plans. And because marketplace plans are not considered equivalent coverage to Medicare Part B, signing up late for Part B will result in a late enrollment penalty.

To address this problem, the Centers for Medicare and Medicaid Services (CMS) is allowing individuals who enrolled in Medicare Part A and had coverage through a marketplace plan to enroll in Medicare Part B without a penalty. It is also allowing individuals who dropped marketplace coverage and are paying a late enrollment penalty for Medicare Part B to reduce their penalty. CMS is now expanding the offer of possible relief to people who should have signed up for Part B during a special enrollment period that ended Oct. 1, 2013, or later but instead used exchange plans. It is also extending the deadline to September 30, 2018 (the earlier deadline was September 30, 2017).

To be eligible for the relief, the individual must:

Have an initial Medicare enrollment period that began April 1, 2013 or later; or

Have been notified on October 1, 2013, or later that they were retroactively eligible for premium-free Medicare Part A; or

Have a Part B Special Enrollment Period that ended October 1, 2013, or later

This offer is available for only a short time. To be eligible for the relief, individuals must request it by September 30, 2018. Gather any documentation you have to prove that you are enrolled in a marketplace plan. Individuals who are eligible should contact Social Security at 1-800-772-1213 or visit their local Social Security office and request to take advantage of the “equitable relief.”

For more information, click here.

For more information about Medicare’s late-enrollment penalties, click here.

The Little-Known Tax on Roth 401(k) Distributions

Employee retirement savings plans come in two main flavors: the traditional 401(k) and the Roth 401(k). The benefit of a Roth 401(k) over a traditional 401(k) after retirement is that distributions from a Roth 401(k) are tax-free, but there is a little-known situation where distributions can be taxed.

Contributions to a traditional 401(k) are made pre-tax, so while it reduces your taxable income in the year you contribute to it, you have to pay taxes on the money you withdraw during retirement. On the other hand, contributions to the Roth 401(k) are made after taxes. This means you won't have to pay any taxes when you withdraw the money.

Some employers offer to match any contributions you make to your 401(k) as an employee benefit. If your employer matches your Roth 401(k) contribution, the contributions will be made before the employer pays taxes on it. This means you will have to pay income taxes on the match and any growth associated with the match when you take distributions. In other words, the employer match is treated like a traditional 401(k).

The maximum amount you can contribute to a Roth 401(k) (in 2018) if you are younger than age 50 is $18,500 per year. If you are older than 50, you can contribute $24,500 (in 2018). Your employer can match as much of your contribution as it wants, but the total contribution to a Roth 401(k) (in 2018) cannot exceed $55,000 or 100 percent of your salary, whichever is less.

For more information on the tax on employer contributions to a Roth 401(k), click here.

Court Overturns Obama Rule Protecting Investors Saving for Retirement

A U.S. court of appeal has struck down a Department of Labor (DOL) rule that was intended to prevent financial advisers from steering their clients to bad retirement investments, but the Securities and Exchange Commission (SEC) has proposed new regulations to at least partially address the same problem.

Prompted by concern that many financial advisors have a sales incentive to recommend to their clients retirement investments with high fees and low returns because the advisors get higher commissions or other incentives, in February 2015 President Obama directed the DOL to draw up rules that require financial advisors to act like fiduciaries. A fiduciary must provide the highest standard of care under the law.

Several industry trade groups sued to overturn the so-called fiduciary rule, arguing that the DOL overstepped its authority in enacting the regulation. A federal court judge initially upheld the rule, but in March 2018, the U.S. Court of Appeals for the Fifth Circuit overturned it. According to the court, the DOL did not have the authority to enact the rule. The court criticized the DOL for overstepping its boundaries into an area that should be handled by the SEC. The Trump administration, which delayed the fiduciary rule at first but eventually allowed it to go into effect, has not appealed the decision.

While the fiduciary rule might be dead for now, the SEC has proposed new regulations that would require investment brokers to act in the best interest of their client when recommending an investment. It also requires brokers to disclose or mitigate conflicts of interest. The proposed regulations do not, however, define what “best interest” means, which may cause confusion for brokers and consumers. There is a long road ahead before these regulations are approved. The SEC is accepting comments on the regulations until August 7, 2018.

Even if the SEC's regulations are approved, they do not solve every problem. Consumers should always use caution when selecting a financial adviser. In particular, consumers should check their financial adviser's experience and credentials and beware of phony credentials.

To read the proposed SEC rule, click here.

To read an article about the proposed rule from Bloomberg, click here.