Welcome to My Blog

Attorney Michael MillonigHi,

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

I have been a certified specialist in elder law since 1998. [see https://www.michaelmillonig.com/cela-certification/ ]. There are frequent changes in elder law, estate planning, trust and probate law. The Ohio Medicaid program is constantly changing even at the county level. It is difficult for me to keep you up to date with my email newsletter, seminars or client appointments. That’s why I’ve started this blog.

I will try to keep you updated on new developments in elder law, estate planning, trust and probate. I will particularly be focusing on local issues in Dayton and Ohio law in general. Some specific topics I will cover are: caring for aging parents, nursing homes, assisted living facilities, home care, independent senior retirement communities, Ohio’s Medicaid program, protecting your estate from nursing home costs, revocable living trusts, avoiding probate, financial powers of attorneys, health care powers of attorney, living wills and other topics related to elder law.

Hopefully you enjoy what you find here and learn some things. 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.

Estate Planning & Elder Law Overview

June 24, 2021

Topics Covered: Wills, Trusts, Probate, Avoiding Probate, Estate Tax, Powers of Attorney, Health Care Powers of Attorney and Living Wills. Time & Place: RecWest Enrichment Center Dining Room, Washington Township Rec. Center, 965 Miamisburg-Centerville Rd., Centerville Ohio 45459 — June 24, 2021 @ 1:00 P.M. to 2:30 P.M.. Please call (937) 433-0130; select option 1, then select option 2 for reservations or register online https://webtrac.washingtontwp.org/wbwsc/webtrac.wsc/SPLASH.html

How You Can End Up in Medicare’s Donut Hole, and How You Get Out

Medicare prescription drug (Part D) plans can have a coverage gap—called the “donut hole”–which limits how much Medicare will pay for your drugs until you pay a certain amount out of pocket. Although the gap has gotten much smaller since Medicare Part D was introduced in 2006, there still may be a difference in what you pay during your initial coverage compared to what you might pay while caught in the coverage gap.

When you first sign up for a Medicare prescription drug plan, you will have to pay a deductible, which can’t be more than $445 (in 2021). Once you’ve paid the deductible, you still need to cover your co-insurance (also called co-payment) amount (depending on your drug plan), but Medicare will pay the rest. Co-insurance is usually a percentage (for example, 20 percent) of the cost of the drug. If you pay co-insurance, these amounts may vary throughout the year due to changes in the drug’s total cost.

Once you and your plan pay a total of $4,130 (in 2021) in a year, you enter the coverage gap, aka the notorious donut hole. Previously coverage stopped completely at this point until total out-of-pocket spending reached a certain amount. However, the Affordable Care Act has mostly eliminated the donut hole. In 2021, until your total out-of-pocket spending reaches $6,550, you’ll pay 25 percent for brand-name and generic drugs. Once total spending for your covered drugs exceeds $6,550 (the “catastrophic coverage” threshold for 2021), you are out of the coverage gap and you will pay only a small co-insurance amount. For more from Medicare on coinsurance drug payments, click here.

Once you are in the coverage gap, your yearly deductible and co-insurance payments count toward the amount you need to pay to reach catastrophic coverage. The amount of out-of-pocket costs that you have to pay to reach catastrophic coverage will vary, depending on the type of drugs you take. In the case of brand name drugs, you will pay only a certain percentage of the price, but the entire price will count toward the amount you need to qualify for catastrophic coverage. With generic drugs, only the amount you pay will count toward getting you out of the donut hole. For more information about the coverage gap, click here

Bear in mind that only payments for drugs that are covered by your plan count towards the out-of-pocket threshold. Your premium and the portion of the drug cost that Medicare pays do not count toward reaching catastrophic coverage, either. Also, any help with paying for Medicare Part D costs that you receive from an employer health plan or other insurance does not count toward this limit.

For more information about Medicare’s prescription drug benefit, click here.

Protecting Your Estate from Nursing Home Costs

Medicaid eligibility for nursing home costs, Trusts, risks of gifting to children and understanding Medicaid’s gift transfer rule. Presentation by Michael J. Millonig, Attorney At Law, Listed in Best Lawyers in America: Elder Law, Certified as an Elder Law Attorney by the National Elder Law Foundation, Ohio State Bar Association Board Certified Estate Planning, Trust and Probate Specialist.

Topics Covered
▸ Review of all new changes resulting from Ohio’s conversion to an SSI/1634 State
▸ New Medicaid income eligibility rule
▸ Miller Trusts (a.k.a. Qualified Income Trusts) now required for many applicants
▸ Medicaid eligibility
▸ Asset protection strategies
▸ Resource exemptions for the community spouse (spouse at home)
▸ Use of Trusts to protect estates
▸ Medicaid Annuities
▸ Risks of gifting to children
▸ Understanding Medicaid’s Gift Transfer rule
▸ New rule for Residence exemption for single persons & our success with exemptions
▸ Insurance for nursing home care
▸ Special Needs Trusts under Medicaid law for children with disabilities

Presented in association with the WashingtonTwp/Centerville Library. Date & online sign up: Wednesday, May 26, 2021 @ 3:00 PM to 4:30 PM. This is not an in-person presentation at the library. To sign up online for this virtual online presentation via Webex go to:

https://wclibrary.evanced.info/signup/EventDetails?EventId=13785&backTo=Calendar&startDate=2021/05/01

Bernie Sanders plan to increase federal estate tax

It has been said that no one is safe when the legislature is in session. Bernie Sanders has introduced a bill in Congress called the “For the 99.5% Act.” It would reduce the federal estate tax exemption amount (now $11,700,000) down to 3.5 million dollars. Rates would also be raised to 50%, 55% & 60%. Family Limited Partnership estate plans would be eliminated or at least made much more difficult. These FLP plans have been popular in the last 30 years to reduce federal estate tax and accomplish other estate planning objectives. The Dynasty Trust exemption from generation skipping tax would also be limited to 50 years. Dynasty trust plans are a great way to protect the estate for children, grandchildren and later generations. For more information of dynasty trusts see  https://www.michaelmillonig.com/practice-areas/trusts/#Dynasty

Medicaid Recipients Have a Little More Time to Spend Down Their Stimulus Money

The one-year deadline for nursing home residents on Medicaid to spend down their first round of stimulus checks is here, but they may have a little extra time.

In March 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act authorized $1,200 stimulus checks to most Americans, including Medicaid recipients. Another round of $600 checks was authorized in December 2020, and $1,400 checks were authorized in February 2021. The stimulus checks are not considered income for Medicaid recipients, and the payments have been excluded from Medicaid’s strict resource limits for 12 months.

While the one-year deadline for spending down the first round of checks is here, another COVID-19 bill gives beneficiaries more time. The Families First Coronavirus Response Act passed in March 2020 provides that if you were enrolled in Medicaid as of March 18, 2020, the state cannot terminate a recipient’s benefits even if there is a change in circumstances that would normally cause the benefits to be stopped. The law states that the recipient’s Medicaid coverage must continue through the end of the month in which the Secretary of Health and Human Services declares that the public health emergency has ended. The public health emergency is set to end April 20, 2021, but it will likely be extended.

While Medicaid recipients may have a little extra time, they shouldn’t delay too long in spending down the money if it has pushed them over the resource limit, which is $2,000 in most states. The following are examples of what a Medicaid recipient may be able to spend the money on without affecting their eligibility:

Make a payment toward paying off debt.
Make small repairs around the house.
Update personal effects. Buy household goods or personal comfort items. Buy a new wardrobe, electronics, or furniture.
Buy needed medical equipment, see a dentist or get eyes checked if those items aren’t covered by insurance.

While Medicaid recipients usually cannot gift money or assets and remain eligible for benefits, recipients in at least some states should be able to make gifts from the stimulus money. If you have questions about how you or a family member in a nursing home can spend the money, contact your elder law attorney. To find an attorney near you, click here.

How the $1.9 Trillion COVID-19 Relief Bill Aids Seniors

President Biden has signed the latest COVID-19 relief bill, which in addition to authorizing stimulus checks, funding vaccine distribution, and extending unemployment benefits, also provides assistance to seniors in a number of ways.

The $1.9 trillion American Rescue Plan Act (ARPA) delivers a broad swath of relief, covering families, employers, health care, education, and housing. The following are the provisions that most directly affect older Americans:

Relief checks. The ARPA provides $1,400 direct payments to individuals earning up to $75,000 in annual income and couples with incomes up to $150,000. The payments phase out for higher earners, and there are no payments for individuals earning more than $80,000 a year or couples making more than $160,000. Eligible dependents, including adult dependents, also receive $1,400. People collecting Social Security, railroad retirement, or VA benefits will automatically receive the payment even if they don’t file a tax return. The checks will not affect eligibility for Medicaid or Supplemental Security Income as long as any amount that pushes recipients above the programs’ asset limits is spent within 12 months.

Medicaid home care. The Act provides more than $12 billion in funding to expand Medicaid home and community-based waivers for one year. This funding will allow states to provide additional home-based long-term care, which could keep people from being forced into a nursing home. The additional money will also allow states to increase caregivers’ pay.

Nursing homes. Nursing homes have been hit hard during the pandemic. The Act supports the deployment of strike teams to help nursing homes that have COVID-19 outbreaks. It also provides funds to improve infection control in nursing homes.

Pensions. Many multi-employer pension plans are on the verge of collapse due to underfunding. The Act creates a system to allow plans that are insolvent to apply for grants in order to keep paying full benefits.

Medical deductions. If you have a large number of medical expenses, you may be able to deduct some of them from your taxes, including long-term care and hospital expenses. The Act permanently lowers the threshold for deducting medical expenses. Taxpayers can deduct unreimbursed medical expenses that exceed 7.5 percent of their income. The threshold was set to increase to 10 percent under the 2017 tax law.

Older Americans Act. The ARPA provides funding to programs authorized under the Older Americans Act, including vaccine outreach, caregiver support, and the long-term care ombudsman program. It also directs funding for the Elder Justice Act and to improve transportation for older Americans and people with disabilities.

What to Do With Your Stimulus Check if You Are in a Nursing Home

As the second (and maybe third) round of stimulus checks go out, it is important to know that nursing home residents are not required to turn their checks over to their nursing home. And Medicaid recipients need to spend the cash within a year if it puts them over Medicaid’s resource limit.

In December 2020, Congress approved $600 stimulus checks for individuals making less than $75,000 a year. And Congress is currently considering whether to approve another round of $1,400 stimulus checks. Those checks should be sent to everyone eligible, including individuals on Medicaid and in a nursing home or assisted living facility.

The Federal Trade Commission (FTC) is reminding nursing home and assisted living residents that their stimulus checks are for them, not their facility. With the first round of stimulus checks, there were reports that facilities were taking the checks without residents’ permission. The FTC says that if nursing homes ask for a resident’s check, the resident should contact the state attorney general and the FTC.

Medicaid recipients who receive a stimulus check that puts them above Medicaid’s resource limit will need to spend down the money within a year or risk losing benefits. The Social Security Administration has said that it will not consider stimulus payments as income, and that the payments will be excluded from a Medicaid recipient’s resources for 12 months. The following are examples of what a Medicaid recipient may be able to spend the money on without affecting their eligibility:

Make a payment toward paying off debt.
Make small repairs around the house.
Update personal effects. Buy household goods or personal comfort objects. Buy a new wardrobe, electronics, or furniture.
Buy needed medical equipment, see a dentist or get eyes checked if those items aren’t covered by insurance.

If you have questions about how you or a family member in a nursing home can spend the money, contact your elder law attorney.

Alzheimer’s – the other Pandemic

The Barron’s weekly February 8, 2021 publication had a comprehensive article on Alzheimer’s disease which they called The Other Pandemic. https://www.barrons.com/articles/the-coming-alzheimers-crisisand-what-to-do-about-it-51612543200?mod=hp_MAG It is a fairly basic article but good for those who are just beginning to struggle with this for a family member. A more advanced and interesting article discusses the new Biogen Alzheimer’s drug, aducanumab, in development. https://www.barrons.com/articles/biogens-big-bet-on-its-alzheimers-drug-what-happens-to-the-biotechs-stock-51612526499?mod=hp_LEAD_4 It has been 18 years since we have had any new approved drugs for treatment of Alzheimer’s disease. This article discusses the status of approval for aducanumab and other drugs.

Our website has very comprehensive information on asset protection planning for families dealing with Alzheimer’s, Medicaid eligibility in Ohio https://www.michaelmillonig.com/ohio-medicaid/ as well as basic estate planning important to be done in the early stages of the disease. In the middle or later stages the Alzheimer’s patient will not be legally competent to sign any legal documents.

What To Do With Your Stimulus Check if You Are in a Nursing Home

As the second round of stimulus checks go out, it is important to know that nursing home residents are not required to turn their checks over to their nursing home. And Medicaid recipients need to spend the cash within a year if it puts them over Medicaid’s resource limit.

In December 2020, Congress approved $600 stimulus checks for individuals making less than $75,000 a year. Those checks should be sent to everyone eligible, including individuals on Medicaid and in a nursing home or assisted living facility.

The Federal Trade Commission (FTC) is reminding nursing home and assisted living residents that their stimulus checks are for them, not their facility. With the first round of stimulus checks, there were reports that facilities were taking the checks without residents’ permission. The FTC says that if nursing homes ask for a resident’s check, the resident should contact the state attorney general and the FTC.

Medicaid recipients who receive a stimulus check that puts them above Medicaid’s resource limit will need to spend down the money within a year or risk losing benefits. The Social Security Administration has said that it will not consider stimulus payments as income, and that the payments will be excluded from a Medicaid recipient’s resources for 12 months. The following are examples of what a Medicaid recipient may be able to spend the money on without affecting their eligibility:

Make a payment toward paying off debt.
Make small repairs around the house.
Update personal effects. Buy household goods or personal comfort objects. Buy a new wardrobe, electronics, or furniture.
Buy needed medical equipment, see a dentist or get eyes checked if those items aren’t covered by insurance.

If you have questions about how you or a family member in a nursing home can spend the money, contact your elder law attorney. To find an attorney near you, click here https://www.elderlawanswers.com/elder-law-attorneys

Ohio Legacy Asset Protection Trusts

There are certain types of trusts that a person can create to protect their estate from lawsuits, bankruptcy, divorce settlements, government expropriation and other creditor claims against their property. Many persons have what is commonly referred to as a revocable living trust. These are usually set up in order to avoid probate. However, this type of trust offers no creditor protection. Traditionally, a person could not set up their own trust for their benefit and at the same time protect their estate from creditors. Trust law prohibited this type of trust. However, this has changed in many states.

Ohio is one of those states that has a special statute permitting a person to create this type of trust. The Ohio Legacy Trust Act was passed effective March 27, 2013 adding new provisions for the creation of an asset protection trust. The Ohio version of a domestic asset protection trust is known as an “Ohio Legacy Trust.” It is one of the best statutes in the country of this type. There are many other details that I can’t cover in this short biog. One important detail to be aware of is that you must plan ahead and create this trust prior to any actual creditor claims or other legal actions against you. The law prohibits any type of transfer of property to this trust if you have a pending creditor claim. As with all other estate planning, it is important to plan ahead.