Long Term Care — Planned For It?

Typically, the first time someone calls me it is because they need a Will or other estate planning documents.

In the course of our initial consultation, I ask lots of questions, some of which is intended to draw out what their plans are for making sure their care needs are taken into consideration as they age – no matter where that may be — at home, with family or in a facility.

The second situation in which I’m usually called is when there is already a medical emergency or event and it is basically to late to do any planning for long term care – it’s a matter of stanching the flow of money and resources and that is sometimes just not possible.

Recently, the New York Times published a great piece on Long Term Care Insurance and you should read it whether you have Long Term Care Insurance or not.  This is relevant if you are yourself reaching an age when you are concerned about your care, if you are a “planner” and need some insight into how these things work, or if you have aging parents and are trying to figure out how you are going to finance their care.

One shortcoming in the NYTimes piece is that it doesn’t cover the role that an attorney can play in planning for long term care. For that, you will have to call me.


Will? or Trust?

I’m often asked by people of all social strata about the need for a Trust.  Why would someone need a trust rather than a will?

Like Jeff Foxworthy of “you might be a redneck if….” fame,  my short answer is:

You might need a trust if you have:

appropriate for trust?
  • a very large estate (right now > 5 million, subject to change by the end of 2012)
  •  complicated tax issue
  •  business succession issues as part of your estate
  •  a child or adult dependent with special needs
  • a need to protect a “spendthrift” from themselves
  • a need to plan for long term care

Inevitably, when I ask why my client thinks they need a Trust, I’m told that she wished to “Avoid Probate” (a phrase forever captured in the title of that perennially bestselling book: “How to Avoid Probate!” )

But very few people seem to understand why they might wish to avoid Probate at all.

The fact is, most states now offer a means of by-passing probate for small estates (in Virginia, currently < $15,000)   Often that can be accomplished without need for drawing up a Trust through the use of joint ownership of property and accounts, named beneficiaries, creation of life estates, pay on death accounts and the like.

When I discuss Trusts with a client, I try to explain that basically, from an estate planning perspective, Trusts and Wills are just two different approaches toward accomplishing the same thing. Both are intended to pass property to someone else. The former – a Trust – does it during your lifetime; the other – a Will – does it when you die.   Perhaps the most important thing to know (and one many people never do figure out until it’s too late) are the tax consequences of one method over the other.  Also, creating a trust during your lifetime tends to require both some sophistication in administering a trust and/or paying someone who can administer it for you.

I tell people to imagine that both a Trust and a Will can be thought of as “buckets.” That is, buckets which hold your stuff – property, accounts, stocks, assets, jewelry – whatever you decide to put in it.

With a trust, you transfer that stuff “into” the bucket during your lifetime and effectively, you no longer “own” or hold title to it, the Trust does. You can name yourself as Trustee and still control the assets in some cases. You can also be the “beneficiary” of the Trust which means that if you have assets – for example, rental properties – that produce income, you may be receiving that income as the named beneficiary. (as another example, you could have income from investments in stocks that may be paid to you while the stocks are an asset of the Trust).

On the other hand, with a Will, you only fill your “bucket” with your stuff when you kick it. The bucket that is.  You create a “probate estate” only after you die, and your executor (or personal representative) presents your Will for probate.  During your lifetime you maintain full ownership and control of everything. If you sell or otherwise use up those things before you die, the bucket just doesn’t get filled up.

There are many and varied ways to set up Trusts – from relatively simple to extremely complicated. I have very few clients for whom it pays to set up a Trust.

Wills too can be complicated, but generally it is a pretty straightforward document to draft. Sometimes the hardest part is determining who you trust enough to carry out your wishes as executor.  What I spend more time doing is making sure that I keep as many assets out of the “probate bucket” as I can so that the Will is not the vehicle used to pass the property at all. For example, between husbands and wives it is common to hold real property “by the entireties” with survivorship. That means that whoever remains alive, keeps the whole ball of wax.  You can set up property ownership between people who are NOT married as “joint tenants” with rights of survivorship which basically would work the same way. This is extremely important for people who for whatever reason, are not, or cannot get married but who wish to leave real property to another.  In this way, the property passes OUTSIDE the Will (or “probate bucket”) and it passes immediately. This is also true for automobiles and other “titled” property.

There are many goals when planning your estate. One of them is making sure your LIFETIME needs are met.  Most people don’t think of it that way. But when I talk to people about their current financial status, I want to make sure they are comfortable and well taken care of through their entire life. That often means planning for long term care. This is another whole post which I’ll write about another day.  But simply “avoiding probate” is not enough. In fact, that’s relatively easy.

Another goal is making sure that gifts you wish to make, get to your loved ones. And that both you and they pay the least amount over to the government along the way.

It’s true that both death and taxes are certain. How and how much is still an open question.


Elder Law Mobile – Goes Where You Are

People often ask, where are your offices? Well, my office is whereever you are.  I understand that my clients sometimes have a difficult time getting out, or have restricted ability to drive or just plain don’t want the hassle and headache of going to some fancy downtown office.

Elder Law Mobile
Look for Attorney Gelbman all over Central Virginia – Charlottesville, surrounding counties of Albemarle, Fluvanna, Louisa, Nelson, Greene, Augusta. Also Lynchburg and Bedford Counties.

So, while you are welcome to come meet with me in my offices just outside Charlottesville (with plenty of free parking and handicapped accessible) – I’m also willing to travel to you where-ever you are: at home, in a nursing facility, with a family member, in the hospital.  Look for me all over Central Virginia in the “Elder Law Mobile”!  You can’t miss it.

Added bonus? The money I save by not working in expensive downtown office space… I pass on to you!


The Power of Memory (or “Smell-o-vision”)

I was addicted to tobacco for many years. Gave it up finally in 2002.  Have been addicted to coffee now since I was about nine years old. Yep. Nine!

Recently, I was sitting on my porch as I almost always do in all kinds of weather, having my first morning coffee. And, as I generally do, I inhaled deep draughts of the SMELL of coffee before I take that first delicious sip. I love the smell probably more than the taste.

A moment later, below me, on the neighbors porch, I heard that distinctive scratch of a striking match and in a moment, up wafts that lovely whiff of a freshly lit cigarette. Even now, ten years later, I love that smell.

I wondered why that is. I think I know. I link both those smells with my grandfather, Grandpa Jones.  It was his morning routine too — though not on my lovely apartment deck. He got up earlier than everyone else and I would creep down their creaky old stairs to find him in his white cotton undershirt and work pants belted too high up on his waist, sitting at the little white formica-topped table (with the gold flecks in it) in my grandmother’s bright yellow tiled kitchen. He would be quietly fiddling with his “weather band” radio looking for the local report to determine if today was a fishing day or a fixin’ day.  I didn’t care. It was fun to tag along with grandpa whether we were fishing or taking something apart on his workbench.  But the smells!  That’s what I remember even today. Grandpa’s freshly lit Pall Mall cigarette and his steaming, creamy coffee!  Oh sure, I remember the early morning light on his full head of snow-white hair and the scratchy whiskers he rubbed on my cheek when I climbed in his lap of his long, lanky six foot+ frame.  But I remember that sweet smell of burning leaf and brewed goodness with a clarity that I remember nothing else.

My grandfather lost his ability to do any of those things. Alzheimer’s robbed him of the ability to fish, fix, fiddle with the radio. He also sang a deep melodious bass in the church choir, recited endless funny nursery rhymes to us as children, and played the mandolin.  None of the man I recall remained in the end.

I was out of the country when he was robbed of these joys and he died soon thereafter in a nursing home where my grandmother and aunt had to place him because they could no longer care for him at home. This gentle man reduced to behaviors and outbursts that none had ever seen from him before. Gratefully, I never saw or experienced that Grandpa Jones.

My Grandpa Jones for me is forever that sweet smell. He is evoked for me every morning over coffee and my neighbors cigarette.

I’m walking in this years Alzheimer’s Walk to End Alzheimer’s for my Grandfather. And for my grandmother and Aunt who struggled so hard for so long to care for him. I’m walking for all the other families and caregivers. Because I still can.


Mental Capacity — Losin It?

Click below to view the presentation I recently gave at the Charlottesville Senior Center on Mental Capacity and Surrogate Decisions Makers.

It was a fun day, too bad you can’t see the audience, they were very engaged and active.

Many thanks to Elizabeth Swider, of Care is There for doing the video/sound for me!


Gotta Take Dad’s Keys Away From Him!

If I’ve heard it once, I’ve heard it a thousand times:

“Dad shouldn’t be driving! He’s going to kill someone. We have to get him off the road.”

“Mom’s dangerous on the road! I have to make her stop driving.”

hands on the wheel
Seniors Driving

“I have to take Pop’s car keys.”

Inevitably, a huge war ensues.  Its a pitched battle because the driver, whatever their actual ability to drive may be, feels their final freedom, the independence of going where they want, when they want, is being challenged.

Truth be told, in Virginia anyway, only one authority can revoke a person’s privilege to drive and that’s the folks that gave it to them originally. Yup. The Department of  Motor Vehicles (DMV).

Fortunately, for all the worried adult children (or spouses or other loved ones) out there that want their parents safely off the road, there is a way to alert DMV that attention needs to be paid to a potentially dangerous driver.

You can file a “Medical Review Request” with DMV and they will see that the driver is made to have a medical review and his or her doctor will have to report to DMV on the driver’s fitness to drive.  Best of all, you can submit the request to DMV anonymously!

The form is available in PDF format online and you download it here: www.dmv.state.va.us/webdoc/pdf/med3.pdf

Or if for some reason that link doesn’t bring it up, try googling:  Virginia DMV  MED3

One thing is for sure. The harder you try to take someone’s keys away, the harder they’re going to dig their heels in to retain their driving privileges.  Preserve the peace in your house and let the DMV be the bad guy!


BREAKING: New “Nursing Home Compare” System released by Medicare.gov

This has always been a useful tool, but it has recently be substantially upgraded and now provides much better data in easily navigatible screens. You can search for nursing facilities by any number of means, state, county, within a specific zip code or by name. You can compare several at a glance and you can “drill down” to very detailed information INCLUDING the most recent survey and inspection reports! Extremely useful tool, Check it out here: http://www.medicare.gov/nursinghomecompare/search.aspx


ObamaCare and Medicare — what’s the REAL Impact?

Medicare — as we know it

Now that the dust is beginning settle, and hopefully, some of the political posturing will subside, its time to look at what is actually in “Obamacare” (or, more officially, the Affordable Care Act) Most of us in the field of Elder Law are concentrating our energies on what the law does with regard to Medicare. Way back in February of 2011, then-adminstraor of CMS (Centers for Medicaid/care) Dr. Donald M. Berwick testified before congress as to what the implementation of the law would do and gave special attention to Medicare and the improvements we could expect.  Here’s a transcript of Dr. Berwick’s testimony. Very readable. I recommend it!