September is the end of Summer and the beginning of Fall. Kids are back in school and parents are struggling to get back on schedule. Football is just kicking off and baseball is closing in on the playoffs. This season of change is a good opportunity to go over some of the basic definitions associated with estate planning.
Administrator: An individual named by a Probate Court to represent a decedent’s estate when there is no Will.
Agent: Someone appointed to act for another through a Power-of-Attorney.
Decedent: The individual that has died.
Executor: An individual appointed by a Will to represent a decedent’s estate.
Fiduciary: An individual that owes a legal and or ethical responsibility to another because of the nature of their relationship. For example, an Executor owes a duty to protect an estate for the heirs, or an Agent appointed by a Power-of-Attorney owes a duty to protect the finances of the principal.
Healthcare Representative: A legal document that appoints an individual to make medical decisions for the principal if they are unable to do so on their own.
Living Will: A legal document that details end of life medical care including whether to retain or terminate certain life maintaining care such a respiratory, cardiopulmonary, and hydration.
Power-of-Attorney: A legal document authorizing an individual to act on behalf of the Principal in most matters other than health care decisions. A Durable Power-of-Attorney will continue in force if the Principal becomes incapable of making their own decisions.
Principal: The individual granting certain powers to another either through a Power-of-Attorney or Healthcare Representative.
Probate: The process administered by the Probate Court that leads to the final disposition of an estate. Each town in Connecticut is assigned to a specific Probate District.
Trust: A legal agreement where one individual, known as the Trustee, holds and manages assets for the benefit of another, that individual is known as the beneficiary.
Will: The Last Will and Testament is a legal document that outlines the distribution of an individual’s assets after they pass. In Connecticut, the document must be witnessed by two individuals and acknowledged by a notary or attorney.
A conservatorship is a legal concept that allows an individual to manage the affairs of someone that is incapable to doing the same for themselves.
The conservator is the Court appointed individual that manages those affairs. In Connecticut, a Probate Court is the only Court that can appoint a conservator. This occurs after a hearing. At the hearing, the Court will hear evidence, including an examination of a physician’s medical evaluation, that demonstrates the potential conserved individual is incapable of managing their affairs. The Court will also look to see that there are no other less restrictive means such as a Power-of-Attorney or Health Care Representative that would accomplish the same goal. Once the determination is made that a conservator should be appointed, the Court will determine the person that should act as conservator. Often a conservator is a family member that has volunteered to undertake this responsibility. However, the Court may also appoint an independent party such as an attorney to act in this role. The Court will look to see that the proposed conservator is familiar with finances and the responsibilities of a conservator.
Additionally, an individual can voluntarily apply for a conservatorship. When this occurs, the Court will appoint a conservator. However, the Court must ensure that the individual is aware of what it means to be conserved. A voluntarily conserved person can also terminate the conservatorship at any time.
A conservator can be responsible for either an individual’s finances or their person and medical needs. A conservator may also be responsible for both aspects of the individual’s life. There may also be two separate individuals to handle each of these aspects. The Court requires financial accountings and reports about the personal needs of a conserved person. This oversight helps to ensure that a conserved person is not exploited.
Applying for a conservatorship should be a last resort. It is an extraordinary measure that significantly alters the conserved individual’s relationship to the community. An attorney experienced in the Probate Court can assist with this difficult and important process.
An unforeseen event, such as a stroke, can make it impossible for you to make medical decisions or communicate your desires regarding your treatment. Your family, loved-ones, or even complete strangers or Court appointed representatives will have to make decisions about your medical treatment and whether to sustain your life. Without guidance, such a decision can be unbearably difficult for them to make. You can take that burden away by making that decision in advance.
Of all your Estate Planning tools, the Advance Directive is the most helpful for your loved-ones. Certainty a Power-of-Attorney is necessary to ensure your financial needs can be meet in the event of incapacity. Everyone should have a Last Will and Testament. But, the potential for a catastrophic medical event requires that your put into place your Advance Directives.
Commonly known as a Living Will, your Advance Directives outline instructions for certain medical treatments. Most frequently these legal documents will direct whether you want artificial life sustaining measures. These measures include but are not limited to nutrition and hydration, respiration, and cardiopulmonary resuscitation.
These documents will ensure that your desires for treatment or met, but more importantly this will be a great relief of your loved-ones. You will be making the end of life decision on your own. You will not burden your family with that decision and the lasting guilt that they may have to suffer. Making this decision will also prevent a potential conflict over your actual desires.
Protecting your family is easily accomplished by meeting with an attorney to discuss your Advance Directives.
This entry is dedicated in loving memory of Nancy Esposito.
A Fair Hearing
To say the Medicaid application process can be frustrating would be a great understatement. Receiving a letter with the statement “NOTICE OF DENIAL” can be defeating.
This letter informs applicants that they are not eligible in whole or in part for long-term care. There are many reasons for a denial, but most relate to the amount of assets of either the applicant or their spouse. The immediate concern is certainly: “I know I should qualify, what do I do and how can I fix this.”
Under the law, you are entitled to a hearing to contest the denial. The Connecticut Department of Social Services (DSS) will hold this hearing upon the applicants request to review the decision. This hearing is called a “Fair Hearing.” Once you request a hearing, DSS will send a letter with the date of your hearing and will also send a document outlining the reason for the DSS denial along with supporting evidence.
At the actual hearing, the applicant should present their position and the reason they should have been approved along with supporting evidence. The DSS caseworker that issued the decision will also present the reason for the DSS denial. A hearing officer presides over the hearing and will issue a decision. Most often the hearing is held through video-conference with the hearing officer sitting at another location. The decision will not be made at the hearing. A final written decision will be mailed to the applicant.
It is important to be prepared for these hearings. You must come with all the relevant evidence to support your argument. The hearing officer will examine your evidence and your statements to determine if an error or oversight was made that resulted in the denial. Legal representation is not required, however, attorneys that work in this field, have experience in these proceedings and understand the Uniform Policy Manual and relevant State and Federal laws.
There is also an opportunity to resolve your matter before the hearing. You can provide the DSS caseworker with new evidence prior to your hearing. The caseworker will evaluate this evidence. If the caseworker or their supervisor agrees with your position, they will retract the denial and recalculate your benefits.
Of course the best way to avoid all of this is to hire an experienced attorney at the beginning of the application process.
Real Estate Season
The old saying tells us April showers bring May flowers….but they also tend to bring real estate transactions. Spring is often the kick-off of the true real estate season. If you are considering buying a new home or selling your current home there is one tip I always recommend to clients. Be patient!
Real estate transactions have become increasingly more complicated. They take longer than in the past and the amount of stress involved seems higher. Below are just a few of the reasons that you should take my advice and be patient.
Regulations have made the mortgage process more frustrating and time consuming. Have patience with your broker. Get them the documents they ask for as quickly as you can. Some of the request may seem repetitive and even ridiculous, but always remember that the bank makes the rules. You must abide by those rules if you want your mortgage approved. As a seller, you should also expect that your buyer will ask for extensions of the dates in the contract. The buyer's ability to gain mortgage approval controls the entire transaction. This does not mean that the transaction will not happen. It just requires patience.
Old mortgages cause trouble. A title search is always part of a real estate transaction. The buyer’s attorney will conduct this search. It will provide information about the property such as when the current owner purchased the property, the name of the previous owner, and mortgages and liens against the property. It is not uncommon that an old mortgage, that has been paid off, will still show up as an active mortgage. The seller will have to prove that this mortgage was paid in full and obtain the appropriate paper work…even if it was from a previous owner. This process can take time and may delay the closing or require money to be held in escrow. All of this will be resolved over time. But it requires patience.
Municipal searches are now a requirement. This is another search conducted by the buyer’s attorney. This search will ensure that there are no open permits for work done to the property. These searches were not required nor were they common just five years ago. As a result, you may have purchased a house that was subject to open permits. The seller will have to work with the town to close those permits before the sale can proceed. This can be a nuisance to both parties, it too requires patience.
There are many aspects of a real estate transaction that can cause stress and delays in the process. Whether you are the buyer or seller you need to be patient. You should have faith that the transaction will occur. If you have a good team and trust in your realtor, mortgage broker, and attorney everything will work out. You just need to be patient.
The Comprehensive Plan
Developing an estate plan can be a challenge. Ensuring your loved ones know your wishes can be overwhelming. There are many times when clients will ask if their Will or Living Will should include information about the nursing home they would prefer or their desired funeral arrangements. This type of information is better conveyed to your loved ones in person or in a separate document so that they fully understand your end of life desires.
The legal documents of your estate planning are incredibly important. They will help your family effectively deal with the legal issues that may arise. However, there are many items that will not be included in your legal documents. There are many aspects to consider when faced with planning for your final days. You may or may not want to be involved in medical decisions. You may or may not want to have treatment of certain symptoms. You may want to meet with all of your family members or only a select few. You may want to meet with a religious figure. You may want specific flowers, music, or readings at your funeral. These are the types of decisions that are not encompassedin your legal documents. But, if these items are important to you, you should communicate your desires to your loved ones.
In our practice, we encourage clients to write down their wishes in a separate document or letter. If you are considering this type of end of life planning but struggling to start there are a number of online resources available. One such source is the Conversation Project. The Conversation Project is a non-profit organization that provides materials to help you begin thinking about, planning, and ultimately communicating your desires. Their website provides free guides to get you started in the right direction to ensure your wishes and desires are fulfilled. You can download these documents from their website http://theconversationproject.org/
Beware of the MOON
Next month Medicare beneficiaries will become aware of the MOON. Starting in March all hospitals will be required to notify Medicare beneficiaries of their patient status and the consequences of that status. This process is known as the Medicare Outpatient Observation Notice or MOON. The MOON will be provided to Medicare beneficiaries that have received 24 hours of care in a hospital in either an outpatient or observation status.
Currently, a hospital may classify a Medicare beneficiary’s status as either inpatient, outpatient, or observation. This status can have a serious financial impact on the beneficiary. Due to cost cutting and audits, hospitals are more frequently classifying patients in an outpatient or observation status. In fact, from 2006 to 2014 the number of treatment days classified as outpatient or observation more than doubled. More simply, Medicare beneficiaries are arriving at hospitals, including the emergency room, and receive treatment without being fully admitted as an inpatient. Outpatient care is paid through Medicare Part B. Medicare Part B generally covers only 80 percent of the costs of treatment. Additionally, some medications including those that are self-administered are not covered while in an outpatient or observation status. Most concerning, when a Medicare beneficiary is in an outpatient status they will not qualify to receive Medicare coverage for 100 days at a skilled nursing facility after discharge from the hospital regardless of whether they need to be admitted to a nursing facility.
The updated MOON will require both a written and verbal explanation to the Medicare beneficiary of their status and the financial impact of that status. This is a step in the right direction but, unfortunately, many individuals are too overwhelmed by their medical needs to fully understand the long-term impact of this notice. That is why it is crucial to have a Health Care Representative that actively follows your treatment and communicates with your doctors. It is also important to notify friends, family and your primary care physician that you have been hospitalized.
New Year, New Laws
January brings the New Year and the implementation of new laws passed by the Connecticut General Assembly.
One of those laws has a direct impact on all businesses including those with only one employee. “An Act Concerning Fair Chance Employment” codifies the policy known to employment attorneys and human resources professionals as ‘Ban the Box.’ The law bans an employer from forcing a potential job candidate from checking a box on an application that would indicate a criminal history. More specifically, the law prohibits an employer from asking a potential employee about “prior arrests, criminal charges, or convictions” on the initial employment application. Failure to abide by this prohibition can result in a fine for each violation. Employers may still ask about a candidates’ criminal background after the initial application, however the goal of this law is to promote the hiring of individuals that may have been arrested.
If you are an employer it is important to ensure you are meeting your legal requirements. You should have an attorney review your current application and application process. It is also important to educate your employees, especially those involved in hiring, on this change in law. While you are reviewing these matters it is also a good time to speak with an attorney to ensure you are following other local ordinances and federal laws and regulations.
The holidays are a joyous season. This time of year provides us with an opportunity to express gratitude for your family, friends, and loved ones. This year, as you give thanks for those people, consider their needs.
During the holiday season we generally spend quality time with our family and friends. This time of year provides you with many opportunities. If you are considering changing your Will or beginning the estate planning process you have a chance to discuss this with the people it may impact. You can talk to your family members about changes you are considering, consult them to see if they are interested in becoming a Power-of-Attorney or if they would like their name added to your home. You can also express your wishes and concerns for end of life decisions. If you have senior relatives it is a good time to assess their well-being. You can look to see how they are dressed and examine their cleanliness. Watch how they are ambulating. See if there appears to be cognitive or memory impairment. Discuss their current living conditions and see if there are new people involved in their lives. Make sure they do not seem isolated. As an attorney, I find more children and grandchildren call about their families members after the holidays. Take this opportunity to truly express your gratitude and include your family’s future in your thoughts.
Fighting Financial Exploitation
Financial exploitation is a serious threat to all seniors. A 2010 survey found that one out of every five seniors had been the victim of financial exploitation. The Department of Justice categorizes financial exploitation into two categories; those acts committed by Strangers and those acts committed by Relatives and Caregivers. The type of exploitation committed by Strangers often falls under the guise of a scam either through the phone, internet, or a door to door salesmen. Exploitation committed by Relatives and Caregivers involves manipulation or theft. This kind of exploitation is harder to identify and therefore harder to prevent. As the percentage of those over age 65 increases this problem will only continue to grow.
The State of Connecticut has been proactive in trying to prevent and respond to financial elder abuse. The Department of Social Services administers the Protective Services for the Elderly Program. The Program is meant as a safeguard for seniors that are being abused. Protective Services will investigate claims of abuse and in extreme circumstances will ask a Probate Court to intervene. Connecticut also recently increased the number of individuals known as Mandatory Reporters. These Mandatory Reporters are required to report potential abuse to Protective Services. This list places this requirement on many individuals including but not limited to doctors and medical providers, law and enforcement officers, and importantly individuals that work at municipal Senior Centers. While the State does provide safeguards, it is important that you also protect yourself.
At a recent event held by the Town of Stratford Department of Senior Services, the importance of relying on yourself was a central focus. A detective from the Stratford Police Department said that just like locking your house and car doors and wearing a seatbelt you should rely on your own common sense to prevent financial exploitation. There are legal tools that an attorney can help put in place to protect yourself. These tools include putting your affairs in order through a Last Will and Testament, a Power-of-Attorney, and a Conservator in Advance. However, the most important defense is to avoid isolation. If you are lonely you are vulnerable. Maintain relationships with your children, siblings, trusted friends, your attorney, or your financial planner. When you are considering making a gift, appointing a Power-of-Attorney, or changing your Will you should discuss this with those trusted individuals. Keeping a support network will help to prevent someone from taking advantage of you without your knowledge.
The Pooled Trust
A Pooled Trust is an important resource available to assist applicants of public assistance programs especially Medicaid, or Title 19 as the same is often called. A Pooled Trust is a potential necessity for some individuals especially those over age 65. A Pooled Trust allows an individual to set aside assets so that they are not counted as such when applying for and maintaining certain benefits. Additionally, the funds within the Trust can be used to provide for supplemental care above the public assistance.
The most common reason to create a Pooled Trust is to lower income and asset levels. Most public assistance programs have income and asset limitations that must be met before qualifying for benefits. Additionally, those same levels must be maintained in order to remain eligible for benefits. For instance, Title 19 has both asset and income limitations. Often an individual may not have enough resources to pay for their in-home or nursing home care but their asset or income levels are above those mandated by the State. A Pooled Trust provides a method to qualify for benefits while still using those assets for their general needs. A Pooled Trust allows an individual to place a lump sum or monthly contribution into the Pooled Trust. The Pooled Trust can hold those funds and make payments for the beneficiary. Most importantly, the assets in the Pooled Trust will not count as assets when applying for and maintaining eligibility for Title 19.
In Connecticut a Pooled Trust can only be created through PLAN of Connecticut. This organization is chartered by the State Legislature and manages all Pooled Trusts within the State. There are a number of legal documents that must be reviewed when applying for a Pooled Trust. PLAN of Connecticut also requires that all applicants meet with an attorney is on an approved list. If you are considering applying for public assistance, including Medicaid, you should consult a qualified elder law attorney that is also eligible to work with PLAN of Connecticut.
Updating Connecticut's Uniform Limited Liability Company Act
For the first time in nearly 13 years, Connecticut's law related to Limited Liability Companies (LLCs) has been updated. These changes modernize Connecticut's existing laws and bring them closer in line with the laws in a number of other states.
The new law does not completely revoke existing law. It does, however, make a number of substantive changes . These changes should make it easier for LLCs to operate in Connecticut. They will have more flexibility and certainty in their operations. They should also be very beneficial for smaller LLCs. Often, smaller LLCs will lack a formal statement of the roles and responsibilities of its members. The updated law will include a default 'Operating Agreement' so that members will have a more clear understanding of their roles and responsibilities. This will assist those LLCs that cannot immediately afford an attorney but would like to start operating. Additionally, the new law will provide greater protections for members of these smaller LLCs. Under the new law, LLCs should be able to continue operating when there is a dispute among the members. Disputes under existing law generally end with the LLC dissolving and harming all members. This change will allow LLCs to save money on litigation and prevent dissolution. The new law will take effect July 1, 2017. As you consider starting a business or creating an LLC it is important to have a full understanding of the new Uniform Limited Liability Act.
Planning for Everything
An estate plan should truly be a Plan. Plans include provisions for all contingencies, even the worst. In an estate plan the worst contingency is of course death. Your estate plan will likely contemplate the disposition of your assets at your death but it might not contemplate the costs associated with your death.
You can include these costs in your estate plan when you purchase a prepaid funeral service contract. These contracts allow you to pay for your funeral ahead of time. These contracts cover the basic costs of a funeral including the services and the preparation of remains. This can ease the stress and financial burden on your surviving family members.
There are both revocable and irrevocable funeral service contracts. A revocable contract is simply that, a contract that can be revoked at any time. An irrevocable contract becomes important when Title 19 is potentially in your future. Connecticut law allows you to keep an irrevocable contract even if you become a Title 19 recipient. This benefits your family as you may have limited or no assets at death. Importantly, effective July 1, 2016, the allowance for an irrevocable contract was increased for the first time in 19 years. The ceiling for an irrevocable contract was increased from $5,400.00 to $8,000.00. It is also possible to increase any existing contract to the new level.
Setting up a full estate plan can be complicated as well as emotional. Planning for everything will alleviate some of those same problems for your family. Meeting with a qualified elder law attorney can help you create a comprehensive estate plan.
Retaining a Life Estate
Many clients ask whether they should consider transferring their home to their children as part of their Estate Planning. They rightly assume that this will take the home out of their Estate and that the home will no longer be subject to the Probate Process. Those same clients are also nervous about giving away their home or are worried about the impact of this transfer on a potential Title 19 application. This is when I explain a Life Estate to my clients.
A Life Estate is technically an interest in property for the period of your life. You can transfer a future interest in your property while retaining your current interest. More simply, you can convey property to someone else, like your children, while reserving your right to use the property for your life. A simple deed that reserves a life use or life estate for you will accomplish this end.
There are many benefits to this type of transfer. First, the house will not become part of your Estate. The house will automatically belong to your children at your death.
Second, you continue to retain control over your property. Your children, or the person with the future interest, cannot remove you or sell the house from under you. Additionally, you also retain any real estate tax benefits you may currently receive from your municipality.
Third, the tax implication for your children is lessened. When you transfer a property while retaining your Life Estate, you continue to own the property for tax purposes. The value of the home attributed to your children will be from the time of your death. Without retaining the Life Estate the value of the home attributed to your children will be at the date of transfer.
Finally, your transfer may have a limited impact on a Title 19 application. It is important to discuss your situation, including the potential to apply for Title 19, with an attorney to determine if a Life Estate would be in your best interest.
Don't Lose Eligibility
Applying for assistance through programs such as Medicaid or Supplemental Security Income (SSI) is difficult enough. Maintaining eligibility for these programs can be daunting. Gifts, inheritances, or settlements from civil actions can have the unintended consequence of disqualifying someone from eligibility. These and other assistance programs are limited to those individuals that have minimal income or assets. These limits are set by law and the addition of even a small amount of assets may create a situation of temporary ineligibility. However, maintaining eligibility while reaping the benefit of these additional assets is possible.
A Special Needs or Supplemental Needs Trust (SNT) is an instrument that can achieve this end. A SNT is a trust designed to hold assets for a beneficiary so that they may maintain eligibility and continue to receive the benefits of Medicaid and SSI. The beneficiary is the person that is receiving assistance. The beneficiary's assets are held by the SNT and are ignored when determining eligibility for those programs. Additionally, the trustee of the SNT may use the assets for the benefit of the beneficiary while the beneficiary receives assistance. The law allows the trustee to pay for services or goods that are not provided by these programs.
Creating an SNT requires the help of a qualified attorney. There are many considerations when determining who can create the trust, when the trust should be created, and choosing the appropriate trustee. Additionally it is important to understand the breadth of discretion provided to the trustee. If you have a child with disabilities or you are an adult currently receiving assistance and are worried about your eligibility a SNT may be an important asset for you to consider.
Trust in Your Will
"Is it true that I can use a Trust to avoid Probate?" This questions comes up in every estate planning conversation I have. The answer is...not really.
A trust can be a wonderful tool for estate planning. A trust can serve a number of purposes; its basic function is to hold assets for your beneficiaries until your death. However, a trust must still be reported to the Probate Court in Connecticut. The entire value of the trust will be used to calculate a statutory fee which will be the responsibility of your estate.
That is why you should trust in your Will. A Will accomplishes the same goal of distributing your estate to the beneficiaries of your choosing. A Will is simple, relatively inexpensive, and allows you to own and use your assets throughout your life. Additionally, a Will can be easily amended if your circumstances change. If you own less than $2 million in assets a Will is likely your best option.
Are You the Responsible Party?
Placing an elderly parent in a nursing home can be an incredibly stressful and emotional event. Unfortunately, it is at this juncture that you may be as vulnerable as the senior you are trying to help.
Nursing homes often allow a child to sign documents to admit their parents to their facility. These 'admissions agreements' are lengthy, detailed, and potentially overwhelming. While you are signing these documents there is one provision the nursing home wants you to sign. Doing so could be disastrous.
Nursing homes will include a provision within the admissions agreement that makes you sign as the 'Responsible Party.' This singular provision will make you personally liable for any outstanding expenses owed to the nursing home. This even includes expenses incurred by the facility if you have failed to appropriately and timely apply for assistance from the State in the form of Title 19.
Federal law prohibits a nursing home from requiring you to sign as the Responsible Party, but many homes ask you to 'voluntarily' take on that responsibility. The stress and time constraints surrounding admitting your parent to a nursing home can make it impossible for you to fully comprehend the admissions agreement. It is important that you have a qualified elder law attorney review any prior to signing you should avoid signing anything that will make you the Responsible Party or guarantor for payment.
If you have already found yourself in this situation you should also contact an attorney to determine your obligations. The admissions agreement will lay out the express requirements of the Responsible Party. You must familiarize yourself with those requirements to protect your own assets. While you are caring for your parents it is important you find a lawyer that can care for you as well.
Its Often too Late
Frequently, people call in search of a Power-of-Attorney for their parents. In many instances, this need arises after a holiday visit when the children see how poorly their parents are doing first-hand, or worse, after a parent has been hospitalized. However, it is often too late.
The Power-of-Attorney, commonly referred to as a 'POA,' allows one person to give another person the power to act on his or her behalf. The person granted that power becomes the Attorney-in-Fact. A POA is necessary for someone who cannot manage their own affairs. Some common examples of when POA is needed include interactions with a nursing home or assisted living facilities, selling a home, and accessing funds to pay for care.
A POA is important. It is for planning and preparing for the future. It is established before it is actually needed because the person signing a POA must have the mental capacity to understand what the document means and what he or she is actually signing. When a child asks an attorney for a POA for a parent it is often too late. The parent likely does not have the capability to sign and grant a POA.
Many Attorneys-in-Fact have found that banking institutions, mortgage lenders, and retirement funds and pension have been hesitant to accept valid POAs. A new Connecticut law is intended to remedy that problem. This new law provides you with an opportunity to review your current POA or establish your first and to ensure you and your loved ones are protected in the future.