A Brief Overview of Wills and Trusts

For many people, their only knowledge of estate planning comes from what they see in movies and television shows. I am reminded of a scene from Harry Potter and the Deathly Hallows where Harry, Ron and Hermione sit patiently waiting to learn what was bequeathed to them in Dumbledore’s Will.  Though entertaining, the portrayal of estate planning in movies is oftentimes inaccurate and simplistic. For one thing, Harry Potter gives no insight into the Ministry of Magic Probate Court, but also, Dumbledore probably would have preferred to have a Trust in his estate plan, given his propensity for secrecy and privacy. Jokes aside, in this post, we discuss some of the differences as well as advantages and disadvantages of two of the most common estate planning documents – Will and Trusts.

There is no one-size-fits-all in terms of estate planning. A Will might be perfectly suitable for one person while a Trust might be more appropriate for another. Below are some of the differences between Wills and Trusts and considerations when you decide which best suits your needs.

 A Will is a legal document which sets forth your wishes regarding the distribution of your property when you die.  A Will is effective when you die and, if your estate has certain types of property or there is a certain amount of assets in your estate, your property will pass to your heirs through legal proceedings called probate. Some of the advantages of having a Will include the ability to appoint a guardian for your minor children in the event you or your spouse pass away, simplicity during your lifetime regarding how your assets are titled, and Wills are typically less expensive than a Trust.

Some potential disadvantages for some people are the fact that Wills become public record through the probate process and probate can be a long, arduous, and expensive process for your heirs. In most cases, your heirs will not receive any assets for at least 6 months after opening the estate.

A Revocable Living Trust is a type of trust created to hold ownership of an individual’s assets and determine how your assets will be handled in the event of your incapacity and then after you die. During your lifetime, you can take any action you choose, as to the assets in the Trust. Unlike a Will, a Revocable Living Trust can become effective immediately. Some of the advantages of a revocable living Trust include the fact that, if properly prepared and funded, the assets in a Trust avoid the probate court, the Trust can (and should) contain provisions for determining when you no longer have capacity outside of guardianship court and instruct the Trustee on how to take care of you and your finances in case of incapacity. Additionally, unlike a Will, the administration of a Trust is private and not a public record.

Some potential disadvantages of a Revocable Living Trust are that they are typically more expensive than a traditional Will and they require lifetime management of the Trust assets by a Trustee.

Whether you are interested in a Will or a Trust, it is important to make sure your estate planning documents are properly drafted and accurately reflect what you want done with your assets. The attorneys at The Law Office of Kate Curler LLC are ready to answer any of your estate planning questions and put together an estate plan that suits your needs. 

If you have questions about Wills, Trusts or estate planning generally, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

Medicaid in a Skilled Nursing Facility (Part 2 of 2)

Our last article focused on Medicare coverage in a skilled nursing facility. This post is focused on Medicaid eligibility and coverage in a nursing home. As people age, it may become unsafe for them to remain at home or live on their own. Nursing homes or other long-term care facilities can provide the level of care that such individuals need, though they often come with a hefty price tag and can be a struggle for the senior to pay. Medicaid can help the senior pay for the level of care they need.  

For background, Medicaid is a state and federal program which pays medical costs for low income adults with or without children. Medicaid also covers people aged 65 and older, blind, disabled, or pregnant and cannot pay their medical bills.

But most people do not realize that Medicaid also pays for nursing home care as well. For seniors who require long-term care and meet the financial eligibility criteria, Medicaid has a program which covers long-term care and pays for almost 100% of their nursing home costs. As an elder care attorney, I often work with clients applying for Medicaid, hoping to appeal a Medicaid decision or interested in Medicaid planning for the future.

In 2020, in Illinois to qualify for Medicaid long-term care benefits, applicants must have less than $2,000 worth of non-exempt assets. Married couples applying together have a higher limit, but if only one spouse is applying, the “community spouse”, can have their own income and retain up to $109,560.00 in non-exempt assets. The question here becomes, what assets are exempt and what assets are non-exempt?

Medicaid provides certain protections for the “community spouse” to ensure that they have the necessary support to continue living in the community while their spouse is receiving long-term care benefits.  In addition to the $109,560.00 in non-exempt assets, some of the other exempt assets which do not count against your Medicaid asset limitations include, but are not limited to*: the applicant’s home as long as the community spouse is living there, household goods such as furniture and appliances, one vehicle, life estate interests in real estate, prepaid funerals and personal items such as clothing and jewelry, among other exempt assets.

You should not wait until you have only $2,000.00 in assets to contact an elder law attorney about Medicaid planning. This planning should be done years before you or your loved one needs nursing home care. If you are facing a shorter deadline for a need for this care, it is then more urgent that you contact an elder law attorney about Medicaid planning services. At the Law Office of Kate Curler LLC, we work with clients at all stages of eligibility for benefit programs. In a future post, we will discuss some specifics of Medicaid planning and how a “spend-down” works.

This post is meant to give you basic information about Medicaid coverage and eligibility. Yet, there are many more nuances that are not included here. If you have questions about Medicaid, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

*This list is not exhaustive, and you should not rely solely on this to complete your own Medicaid application.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.

Medicare v. Medicaid in a Nursing Home

The majority of people in the United States are familiar with “Medicare” and “Medicaid” by name, however, many are unable to tell you the difference between the programs. The next two posts will give you a brief overview of Medicare and Medicaid in a nursing home setting to become better informed and to learn about your options.

Medicare is a federal health insurance program which provides coverage for individuals over the age of 65 and people under 65 who are disabled. Medicare comes in four parts, Parts A, B, C, and D. As an elder law attorney, I most frequently counsel clients about Medicare Part A - coverage in a skilled nursing facility or SNF.   

Medicare Part A covers up to 100 days of “skilled nursing” care per spell of illness. A patient discharged to a skilled nursing facility can receive up to 100 days of skilled nursing care, which most importantly, includes speech, occupational and physical therapy.

The conditions to qualify for these 100 days are strict so it is important to know the rules. The main requirements are:

• The Medicare recipient must enter the skilled nursing facility no more than 30 days after a hospital stay which lasted for at least three days, not counting the day of discharge. This is sometimes referred to as “three overnights” in the hospital to be eligible. Important:  You must be in the hospital as an inpatient. “Observation status” does not count. In my practice, I often see clients who did not know they were not inpatient and then are denied Medicare Part A coverage.

• A physician certifies that the patient needs care in a skilled nursing facility;

• The patient must go to a facility that is Medicare certified; and

• The patient needs the skilled services for a medical condition that is either:

  • A hospital-related medical condition treated during your 3-day inpatient hospitalization (even if different from reason you were admitted to the hospital); or

  • A condition that started while you were getting care in the nursing home for a hospital-related medical condition.

Medicare Part A coverage can be ended by the facility as soon as the skilled nursing facility determines the individual no longer needs skilled nursing care. For residents, this means an end to coverage at the skilled nursing facility and possibly a lost chance to rehabilitate and go back home. In my practice, I often counsel clients on how these decisions are made and how they can be appealed when they are unfair. 

This post is meant to give you basic information about Medicare coverage in a skilled nursing facility. Yet, there are many more nuances that are not included here. If you have questions about Medicare or coverage in a skilled nursing facility, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free consultation.

The contents of this blog post are intended to convey general information only and not to provide legal advice or opinions.

The Power of the Power of Attorney and other Advanced Directives for Health Care (Part 2 of 2)

Our last post focused on the Healthcare Power of Attorney and the powers that it gives your agent. As opposed to a Healthcare Power of Attorney, a Living Will is a legal document, as part of your estate plan, which spells out your end-of-life healthcare wishes. While we saw in the last post that only one-third of the American population had a designated healthcare power of attorney, less than one-third of the population had completed a Living Will that contains end-of-life care wishes.

Your Living Will applies when you are alive, but unable to communicate. It can “speak” for you if your Agent under your healthcare directive is not available or you do not have one appointed. The National Institute on Aging poses the following questions when formulating an advanced care plan, “Is your main desire to have the most days of life? Or, would your focus be on quality of life, as you see fit?” These questions require you to think about your values and your desires for the end of your life. Some of the other questions you should consider are:

• Whether you want treatment to extend your life in any situation?

• What would you want to happen if you can no longer breathe on your own or feed yourself?

• What types of pain management medications or procedures would you want?

• Are you comfortable with a ventilator if you are unable to breathe on your own, and for how long?

• What type(s) of palliative or comfort care do you prefer? and

• Do you want to a DNR (do not resuscitate) order for your care?

Additionally, your Living Will can also include instructions for after death including whether you want your organs and tissue donated, or whether you want to donate your body for science.

Of course, no advanced directive can predict every possible scenario and the questions provided here are not exhaustive. For that reason, it is very important to take the time to think about your end-of-life wishes and about the person whom you trust to make decisions which align most closely with your values and wishes. While this self-introspection is certainly not easy, advanced care planning can help honor your end-of-life wishes while providing clarity for your loved ones during an unsettling time.

If you are interested in drafting your Living Will or have any questions about estate planning or elder law, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free 30 minute consultation.

The Power of the Power of Attorney and other Advanced Directives for Health Care (Part 1 of 2)

A 2017 article in the journal “Health Affairs” cited a University of Pennsylvania Perelman School of Medicine study regarding advanced directives. The study of more than 795,000 Americans found that only one-third of the population had designated a healthcare power of attorney. As an elder law attorney, I often counsel clients with legal issues relating to not having this important document drafted and signed.

While we all hope to age gracefully with sound mind and body, for many people there comes a time where they are unable to make their own healthcare decisions. In these situations, it is very important to have a document in place so someone you trust can make decisions for you and enforce your end-of-life wishes.  These estate planning documents are called Advanced Directives. Without an advanced directive, you run the risk of a county agency or a Judge making decisions for you through guardianship proceedings, which can be expensive, time-consuming and add stress to your family during a health crisis.

Advanced directives are not just for older adults. Anyone over 18 should have an advance directive completed. Advanced directives cover more than end of life decisions. In fact, a well-written and properly executed advanced directive can enable the person you name (your “Agent”) to make a wide range of healthcare decisions for you, if you cannot. The two most common advanced directives are Powers of Attorney for Health Care and Living Wills. In this post, we discuss the important Power of Attorney for Health Care.

A Power of Attorney for Health Care has far more power than just allowing your Agent to make end-of-life decisions for you. In fact, the decisions that your Agent can make include:

-          To admit or discharge you from a hospital or nursing home to home;

-          Powers to move you from a bad nursing home to a better facility;

-          Which treatments or medicines you receive;

-          Whether you are buried or cremated;

-          The authority to seek a second opinions from a healthcare provider, and

-          Control over who has access to your medical records.

You should choose someone you trust as your health care agent. When determining who you want to appoint as your agent, it is important to think about who you would want to make decisions and fight for you to get the best care if you cannot advocate for yourself.

Our next post will focus on a different, but equally important type of advanced directive – the Living Will.

If you are interested in drafting a Power of Attorney or have any questions about estate planning or elder law, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free 30 minute consultation.

Now is the Perfect Time to Make Your Estate Plan

In today's world, as we are continuously receiving new information, it is difficult to have certainty about the future.  In this environment, it is important to focus on the things we can control.

The topic of “estate planning” is often dismissed as something to think about “down the road.”  However, this thinking can unfortunately result in a missed opportunity for effective and meaningful planning. Estate planning is more than just creating a Will. Rather, estate planning forces you to think about how you want to live and what will happen to your assets when you are no longer able to make those decisions. A well-executed estate plan ensures that at incapacity or death, people can advocate for you, your wishes are honored, and your loved ones have less to worry about after you are gone.

While every estate plan is different and can be carefully curated to fit your unique needs, below is a brief overview about four essential estate planning documents everyone should consider:

1.      Will - The Last Will and Testament is what most people think of when they hear the phrase “Estate Planning”. At minimum, everyone needs a current and properly executed Will to determine where your assets will go at the time of your death and who you want to care for your minor children. Your Will names an individual to administer the distribution of your assets. Without a Will, the division of your assets to relatives will be determined by the laws of the State of Illinois.. Importantly, your Will is revocable, meaning it can be changed at any time before your incapacity or death. As even the easiest Wills can be the subject of family fights or mistakes in the writer’s intention, it is important to hire an attorney who has a practice focused on Estate Planning to help you draft and properly sign this document.

2.      Power of Attorney for Health Care (“POA”): A POA for Health Care is a legal document which empowers a person (your “agent”) you trust to make crucial healthcare decisions on your behalf at any time you choose and if you become unable to make them for yourself. You must create the Power of Attorney while you are still able to make decisions for yourself; once you lost your capacity, it is too late to sign a POA. Some of these decisions may include, but are not limited to:

• Admitting you to a hospital;

• Getting you out of a bad nursing home;

• Obtaining a second opinion about your health needs;

• Discharging you from a hospital;

• End of life decisions; and

• What happens to your body after death.

Your Power of Attorney document can also limit the decisions your agent can make for you if, for example, some types of treatment are against your personal beliefs. A POA for Health Care can be revoked or amended by you at a future date. However, it is important to always amend or revoke a POA with the help of an attorney.

3.   Power of Attorney for Property (“POA”): A durable POA for Property document gives legal authority for your trusted agent, such as a family member or friend, to act on your behalf in financial and legal matters at any time you choose and if you become unable to make them for yourself. This authority can include, but is not limited to:

• Filing or fighting for benefits such as Medicaid, Medicare and Veteran’s Aid and Attendance

• Hiring caregivers to keep you at home;

• Hiring services to take care of your pets if you are out of the home;

• Paying your mortgage to avoid foreclosure;

• Negotiating and signing a senior living or nursing home contract; and

• Filing a lawsuit on your behalf or defending you against a lawsuit;

A Power of Attorney for Property can also be amended or revoked by you at a future date, as long as you have the capacity to still make your own decisions. The document is considered “durable” because your agent can act for you, even after you lose your ability to handle your affairs. Like a POA for Health Care, it is important to always consult an attorney before it is signed, revoked or amended.

4. Revocable Living Trust: A Revocable Living Trust is often used to avoid court probate by giving another person (a "trustee") current or future authority over the trust property. A Trust also  keeps your estate private. A revocable living trust is a trust which can be amended or revoked as long as you have capacity. Additionally, a revocable living trust can act act as the main document for the distribution of your assets as you “fund it” with the assets you want distributed upon your death. This is another document that should be carefully drafted and reviewed by an attorney, including any actions to revoke or amend the Trust. 

While these estate planning documents will help you create a basic estate plan, this list is not exhaustive, and you should consult an experienced elder law and estate planning attorney to put together a unique estate plan that suits you and your loved ones’ needs. The more you plan for the inevitable, the more security you and your loved ones will feel.  

If you have additional questions or wish to get started on your estate plan, please contact Attorney Lauren Kaplan at lkaplan@curlerlaw.com or (312) 952-1077 for a free 30 minute consultation.