FAQs

FAQs

Frequently Asked Questions

ESTATE PLANNING

No. This is probably the most common estate planning misconception that we come across.  There are 3 ways to avoid probate:  (1) joint ownership, (2) beneficiary designation, and (3) a trust.  You have to look at each asset and make sure it is avoiding probate in one of these three ways.

A Ladybird Deed is a Quit Claim Deed that has language in it that allows you to name a person, persons, or trust that you want your property transferred to upon your passing.  The benefit of the Ladybird Deed is that you retain the right to sell, mortgage, lease, or gift the property up until the time you pass, allowing it to act like a beneficiary designation.

The additional benefit of a Ladybird Deed is that upon your passing, your beneficiary will receive a step-up in basis for tax purposes, allowing them to sell the property without paying any capital gain tax. 

A Durable Power of Attorney is a document that you sign to appoint someone to make financial decisions for you.  This document will contain many paragraphs that detail what your agent can do for you.  No Durable Power of Attorney is the same.  If it does not have the proper language in it, you may not be as protected as you think.  

At SSR Law Office, we have spent many years perfecting our Durable Power of Attorney to ensure our clients are always covered.  Because we are also Elder Law Attorneys, our Durable Power of Attorney also includes language that will ensure that your agent can do the proper planning to protect your estate from the ever rising costs of long-term care. 

No.  Your agent under your Durable Power of Attorney allows you to act along side that person, unless you have signed a “Springing” Durable Power of Attorney.  Have a “Springing” Durable Power of Attorney requires your agent to get two physician statements that say you are unable to make your own decisions before the agent is able to act.  At first glance, you may think this is the better way to go; however, when the time comes, it can be burdensome to get these two physician statements and you should not be picking someone that you do not trust to be your agent.  Either way, the decision is yours, you just want to make sure you have all the information to make that decision.  For example, many of our clients, as they age, they want one of their children to start helping them, not because they are mentally incompetent but because they child is able to do the running around for them so they do not have to.

No.  Everyone needs some form of estate plan, even if it does not include a trust.  The Attorneys at SSR Law Office will sit down, review any documents you already have in place and how you have your assets titled, talk about your wishes and concerns, and Once we sit down and discuss what your goals are beyond the grave, we can start discussing what legal documents get you what you want in the most effective way.  Clients often have similar goals, for example many want to avoid probate, protect their homes, protect their liquid assets from increasing medical costs, control beneficiary distribution, or maybe even ensure that special needs children receive their inheritance without losing their current benefits.  Whatever your goal, there are legal documents to achieve it.  The bottom line is the amount of money you have in the bank does not always dictate whether or not you need a trust.

A Designation of Patient Advocate is a document that you sign to appoint someone to make medical decisions for you.  This is a document that everyone should have, even for your spouse and children.  

It is important to have this document reviewed to ensure it has the required language.   Not to long ago, there was a law change that requires a HIPAA Release within your Patient Advocate.  This language will allow doctors to release information about your care, treatment, and condition to the person you have designated without violating your privacy rights.

Additionally, this document will say whether or not you want to be on life support if you are terminally ill with no chance of recovery or in a comatose state.  This should not be confused with a Do No Resuscitate Order (DNR).  

It is important to note, this document must be signed while the person still has the mental capacity to understand what they are signing.  Once someone is incompetent, it is to late, and a guardianship is necessary through the Probate Court.  

Yes, at any time by signing a new Durable Power of Attorney and Designation of Patient Advocate.   Be sure to notify your old agent so they stop acting under the old documents.

You and your Attorney should review estate plan documents periodically to make sure they are still accomplishing your goals.  We suggest you review estate plans every few years or any time you experience a life changing event such as: marriage, divorce, or remarriage of you and/or your children, death or the disability of a beneficiary, marriage of a child to an untrustworthy spouse, the birth of an additional family member, a new diagnosis from your doctor, your own disability or inability to continue working, or retirement of you or a beneficiary.

ELDER LAW

An Elder Law Attorney is an attorney dedicated to providing support and assistance for senior citizens who are in need of long-term healthcare, estate planning, and other legal services.  Elder Law Attorneys are advocates for the elderly and their loved ones.  Most Elder Law Attorneys handle a wide range of legal matters affecting an older or disabled person, including issues related to health care, long term care planning, guardianship/conservatorship, retirement, Social Security, Medicare/Medicaid, and other important matters.

No.  Medicare starts when you turn 65, even if you retire before then.  You may be able to continue medical insurance coverage through your employer or purchase it from a private insurance company until you become eligible for Medicare.

Yes, but be careful.  Many times our clients are fortunate enough to be able to receive care within their home.  Additionally, sometimes they may even be entitled to VA Benefits to pay for the cost of in-home care.  Often this care will be provided by a child instead of an actual in-home care company.  This is fine as long as you take the proper steps to set up a care contract so that those payments will not be considered a gift for Medicaid, if the need arises in the future.  

Medicaid rules very specifically state that care provided by a family member may only be performed after a proper care contract has been signed between the patient and the caregiver.  The care contract must be dated and notarized and accompanied with a certificate from the patient’s physician that says the services are “necessary to prevent the transfer of the client to a residential care or nursing facility.”

Additionally, the care contract must not include companionship and must show the type, frequency and duration of such services being provided to the client and the amount of consideration (money) being received by the provider.

The care contract must be signed by the client or legally authorized representative, such as an agent under a Durable Power of Attorney, Guardian, or Conservator. If the agreement is signed by a representative, that representative cannot be the provider or beneficiary of the care contract.

As long as all these criteria are followed, you will have no problem.  However, because the result of not following these rules can be so devastating, it is best to consult with an Elder Law Attorney to have your care contract executed.

No.  Your home is an exempt asset.  The state cannot make you sell your home to pay for the cost of the nursing home.

For a single person, the same is true; however, because most of your income will go to the nursing home as your patient pay amount, they do not leave you any money to keep up the house.  Other family members would have to pitch into pay the mortgage, taxes, insurance, utilities, etc.

Maybe.  Under Michigan’s Estate Recovery Act, the state can file a lien on the deceased’s probate estate to recover funds paid out for the Medicaid recipient’s nursing home bill.  This is, however, not a lien on the actual home.   Therefore, as long as you avoid probate, the state cannot take the house.   Because the person was on Medicaid, the only way to do this is with a Ladybird Deed, which transfers the property immediately upon death.  A regular Quit Claim Deed transfers the property during the person’s lifetime and is then considered a gift that would be penalized.

VETERANS BENEFITS

Yes.  Although there is a requirement that the Veteran served one day during wartime, there is no requirement that the Veteran had to have left the U.S.  As long as he was active duty, one day during a wartime period, and meets the other criteria, he can qualify.

Generally, No. However, in circumstances of extreme mental cruelty or physical abuse, the VA has been known to consider these circumstances and consider the application. However, there would have to be unquestionable evidence and documentation to support the claim of abuse. Even with this evidence, the VA may choose not to consider the application.

Yes, for asset transfers that occurred before October 18, 2018, there is a 3 year look-back.

Yes.  The veteran or surviving spouse  may use a family member caregiver.  The family member caregiver is not required to be licensed by the state. However, under no circumstance may the spouse  be considered a caregiver.  The VA alway considers that care provided by a spouse to be done so out of love and affection for the veteran because they are married.

 Additionally, in order to have the family member caregiver services count as an “Allowable Medical Expense”, the provider MUST be paid for their services.  The family member caregiver will also be required to sign an Attendant Affidavit  for the VA which certifies what services that the family member caregiver is providing and how much that the family member caregiver is receiving for providing said services.  

No.  No one is can sign the VA application for the claimant, unless the Veterans Administration has previously appointed a Fiduciary.  Unfortunately, the VA does not recognize a Durable Power of Attorney.  Therefore, even if the claimant’s signature is very poor, it will be accepted by the VA.  If the claimant cannot sign their name, he or she may mark the document with an “x”, but then the signature needs to be witnessed by two unrelated people.

No.  If you are already receiving benefits from a service connected disability, you cannot also receive benefits from a non-service connected disability. However, if you apply for the Aid and Attendance Pension, and are awarded more than your service connected disability benefit, the VA will pay you whichever is greater.