Medicaid & Elder Law
The prospect of arranging for the care of a spouse, parent, or loved one can be difficult and expensive. This could include in-home care, assisted living, or nursing home care. If your family is paying for care, Pasquali Law Offices can help. Our team of attorneys and staff is dedicated to ensuring your loved one gets appropriate care, and planning to avoid spending a lifetime's worth of savings paying for it. In fact, if you or a loved one is paying out of pocket for care, Pasquali Law Offices can help.
It can be risky relying on the advice you receive from the nursing home, your accountant, or your friends about long term care. Instead, rely on a team of professionals that focus on the planning, implementation, and execution of a personalized care plan unique to your family, with an eye toward asset preservation. Benefits such as the MI Choice Waiver Program, Medicaid, and VA Aid and Attendance should all be analyzed to determine which, if any, are best suited to the needs of your family. In addition, personal care contracts, "Lady Bird" deeds, and Protective Orders are often invaluable planning tools to preserve what you have worked for.
"Estate planning" is a term we hear frequently, but is often misunderstood or ill-defined. Generally speaking, estate planning is the development and implementation of a plan using legal documents to provide for the management and distribution of your assets for the benefit of your family, loved ones, and charity. Your "estate" consists of everything you own, whether it be a home, car, bank accounts, investments, antiques, personal property, or business interests.
Doing nothing means that the State of Michigan's plan for everybody will control your estate assets following death. These laws, called "intestate succession", often direct your assets in a way that is undesirable or to those who you may not wish to benefit.
Estate planning involves several related components. First, it is important to ensure that we retain control over our affairs while we have the capacity to do so. Perhaps even more important is ensuring that trusted family members or loved ones are nominated to assist us with our affairs when we become disabled or incapacitated and are unable to do so ourselves. Lastly, upon death, it is critical to develop and then put into action a legal framework that governs the distribution of our assets and finances without court involvement in a manner that creates a minimal burden on our families.
By way of example, many estate plans may include the drafting and execution of the following documents:
Last Will and Testament;
Health Care Powers of Attorney;
Advanced Health Care Directives/Living Will;
Financial Durable Power of Attorney;
Revocable Living Trust;
"Ladybird deeds" (Michigan Land Title Standard 9.3), quitclaim deeds, or warranty deeds;
Designation of Funeral Representatives;
Special Needs Trusts;
Personal Property Distribution List.
Each family is unique. A careful and thoughtful consultation is crucial to identify planning goals, determine ownership and titling of assets and finances, and to develop a personalized plan for your family. This involves drafting and signing legal instruments and updating the way your assets are owned and titled. In this way, the titling of your bank accounts, investments, and other property merge with the legal plan in your legal documents to avoid conflict.
At Pasquali Law Offices, we pride ourselves on developing personalized plans customized for your family's specific needs. Call today to schedule a consultation and develop your own estate plan.
Nursing Home/Assisted Living Planning
The decision to admit a spouse, parent, or loved one to a care facility is a difficult one. This process is aggravated by the significant cost of care at the facility level. Prior to deciding to admit someone to a facility to receive care, there are several issues to consider:
Is there an estate plan and is it up to date? It may be too late to modify an estate plan after an individual is unable to meaningfully express their wishes.
Does the person have powers of attorney to make healthcare and financial decisions? If not, court involvement may be necessary through a guardianship and/or conservatorship.
What is the cost of the facility in question relative to the individual's household income? If a spouse is involved, loss of income often leads to the impoverishment of the spouse that is still in the community, rapidly depleting savings representing their nest egg.
Are there benefit programs available to keep the individual in a household setting? Programs like Michigan's MI Choice Waiver program provide an alternative to care at the facility level for those who qualify.
Will the person qualify for a long-term care benefit program like Medicaid? It is critical that an experienced Elder Law attorney is involved as the vast majority of what you hear in the media, from friends, and from other professionals (advisors, accountants, etc) is wholly incorrect. You may be surprised by the options available, even for families who have been told they have excess assets or too much.
Oftentimes, pre-planning can work wonders to avoid spending down a lifetime worth of savings. This may involve the use of special divestment trusts, reviewing availability and affordability of special insurance (for example a hybrid life insurance policy with a long term insurance rider), and ensuring that your estate plan is otherwise up-to-date to avoid loss of control and/or court involvement in your later years.
The decision to seek out care in the home or at the facility level is a comprehensive process that should be done carefully with input from family and the assistance of an Elder Law attorney. If you or your family is facing this difficult decision, Pasquali Law Office can help.
Disability, Incapacity, & Powers of Attorney
Planning for while we are healthy and planning for how to divide up our assets upon our death skips perhaps the most crucial wildcard: disability and incapacity. It can be unsettling to think about the possibility of long-term care, whether due to cognitive disabilities like dementia or Alzheimer’s, or physical disabilities like limited mobility.
A well-crafted estate plan should address the possibility of incapacity and disability. This can involve several considerations:
Financial powers of attorney – who and in what order? What is the triggering event that authorizes the agent to act on your behalf? Failure to incorporate a financial power of attorney into your planning typically results in a legal process called a conservatorship where the court appoints a conservator to make financial decisions for you.
Healthcare patient advocate designation – who and in what order? What are your wishes regarding end of life decisions (sometimes referred to as a living will)? Failure to incorporate a healthcare patient advocate designation into your planning typically results in a legal process called a guardianship where the court appoints a guardian to make healthcare decisions for you.
Who manages your trust during a time of incapacity? Is their identify the same as your financial power of attorney? What does your trust say about expending sums on your own care vs. saving funds to pass on to beneficiaries?
Do you have long term care insurance? Hybrid or traditional? What is the deductible period during which you must finance your own care costs before the policy pays out? Can you afford the premiums now and in the future?
Do you have a genetic predisposition for cognitive disabilities like dementia or Alzheimer’s?
Are you comfortable divesting yourself of ownership and control of assets to protect yourself from the “5 year lookback period”?
Have you saved enough to self-insure the cost of your care, whether in your own home or at the facility level?
This may be the most important consideration in planning for your future due to the significant cost of long-term care. Trust Pasquali Law Offices to guide you through these decisions, and assist you with implementing a plan to protect you and your family!
Last Will & Testament
A Last Will and Testament (a "Will") is a document that is admitted to probate court. A Will controls the distribution of assets that were owned individually by the deceased person. A typical Will also appoints an individual(s) to serve as the administrator, called a personal representative; it also sets forth the individuals that are designated to benefit from the deceased person's probate estate, sometimes called heirs, devisees, and/or beneficiaries.
It is important to recognize that a Will may not control all of deceased person's assets, depending on the titling of various accounts, properties, and other assets. Careful planning can ensure that the terms of your Will control who receives the benefit of your estate, and avoid ambiguity and conflict among your heirs and beneficiaries. Discussing alternatives to a Will is an important part of estate planning, often involving the discussion of Revocable Living Trusts, beneficiary designations, and/or "Ladybird Deeds". As with any planning, a comprehensive estate plan often accomplishes a client's goal of peace of mind regarding their post-death affairs, and minimizes the chances for conflict or ambiguity among their family.
Contact Pasquali Law Offices today to review your existing Will or to discuss your estate planning options.
Revocable Living Trusts
Trusts have become a very popular estate planning vehicle. A Revocable Living Trust is designed to hold title to assets for the benefit of named beneficiaries upon death of the trust creator. A trust has the advantage of avoiding probate if prepared and funded appropriately. In addition, a trust can be useful with blended families and for those with disabled children or beneficiaries. Significantly, the administration of a trust is a private matter, and not subject to public record.
A trust does not require immediate distribution upon the creator's death. The needs and unique circumstances of each beneficiary can be analyzed to determine how a given beneficiary receives a distribution, and whether an independent individual has discretion to make distributions, called a successor trustee. A trust can be especially useful for clients who own multiple parcels of real estate, including real property owned outside of Michigan, avoiding probate in Michigan and beyond.
The critical determination for those with existing trusts is whether they are "funded" with the trust creator's assets. If not, a probate procedure may be necessary to transfer title to any assets that were owned individually by the individual prior to death.
Probate & Trust Administration
A Last Will and Testament or Trust do not "administer themselves". In other words, Michigan law has created various duties and obligations that must be followed upon death prior to distributing any assets from a person's estate or trust. For a Will, Michigan's Estates and Protected Individuals Code is a set of laws governing the probate of an estate where the deceased individual left behind a Will. The Michigan Trust Code governs the administration of a trust. It is critical to work with an attorney who can guide you through the legal requirements that must be followed upon the death of a loved one. See below for more details.
In Michigan, the first order of business following the death of a resident with a Will is to admit it to probate court. This is done by filing an application with the court to appoint a "personal representative" (formerly called an "executor") who is charged with administering the terms of the Will according to Michigan law.
There are several administrative duties and obligations that a personal representative must observe. This includes obtaining a tax identification number, publishing notice to creditors of the deceased individual, and otherwise keeping those involved informed and notified.
Failure to comply with these duties can result in serious liability. Over the years, many instances exist where someone has attempted to handle this process without the assistance of any attorney and faced serious personal consequences as a result.
Pasquali Law Offices has a staff of trained professionals to guide you through the legal requirements governing probate. Call today - we can help!
Trust administration has several advantages over a probate administration. The process typically occurs outside of probate court, and therefore remains a private matter within your family and loved ones.
The first step is to formally appoint a person to manage the trust, called a "successor trustee". This involves the nominated individual agreeing to accept the trust, and then establishing their authority through a certificate of trust. This is a document authorized by the Michigan Trust Code and can be presented to financial institutions and others to demonstrate the trustee's authority without having to disclose the private contents of the parent trust document.
Many of the administrative obligations are similar to what is necessary in a probate administration regarding notice to those involved and marshalling assets. The trust document itself may dictate other obligations.
Going it alone without an attorney familiar with the Michigan Trust Code's rules governing the acts of a trustee is risky. Pasquali Law Offices is ready to serve the trust administration needs of Mid-Michigan and beyond - call today if we can be helpful!
Pasquali Law Offices is proud to provide a community service to Mid-Michigan residents in the way of complimentary public legal education workshops. These presentations are conducted on a regular basis in the community at various locations. Attorney Mark Pasquali has conducted hundreds of education workshops on many topics, including Elder Law, Nursing Home Planning, Estate and Trust Planning, Probate and Trust Administration, Common Estate Planning Mistakes, Pre-Planning for Long Term Care, and many other topics.
Watch out for our new seminar series, Planning for the Greatest Generation©. This series will explore planning issues affecting our 60+ year old community members, and are offered free of charge.
In addition, attorney Pasquali has partnered with organizations and professionals to present on a variety of topics, including Central Michigan University Medical School, the Central Michigan Association of Realtors, the Gladwin Commission on Aging, and others. If you or your company are interested in creating unique workshop content for a specific audience, call Pasquali Law Offices to schedule a consultation regarding your needs.