Monthly Archives: January 2016
Medicaid is an extremely complicated yet valuable program that can provide health care services to a senior living at home, in an Assisted Living Facility, or in a Skilled Nursing Facility. We meet with many families who have tried unsuccessfully, or are in the process of applying for Medicaid, who require guidance in order to receive Medicaid approval. Due to the complexity of the application and the documentation required for an approval, many families retain us to guide them through the process.
Although a Medicaid Application processing company can prepare an application, there are limitations. These companies are specifically prohibited from providing legal advice regarding transfers of assets that are allowed by Medicaid. In addition, there are several exceptions to the general rule that an individual cannot transfer assets within five year years preceding a Medicaid Application. Medicaid processing companies are not aware of these valuable exceptions. This lack of guidance often results in financial hardship for other members of the family.
On the other hand, an Elder Law Attorney provides guidance on potential opportunities for spending down along with filing an application on the client’s behalf. To put it simply, the main goal of a processing company is to have the applicant approved for Medicaid, whereas the goals of an Elder Law Attorney are to have the applicant approved for Medicaid while saving as much money as possible using allowable legal strategies. Some examples of the benefits of working with an Elder Law Attorney are: Saving the spouse from impoverishment; providing for a disabled child; saving a home from estate recovery; or merely allowing the Medicaid recipient some extra money to provide for a better quality of life in her final years.
Our guidance takes into account the appropriate healthcare considerations for our client, combined with the financial and tax consequences. A Medicaid processing company will not have these considerations in mind when handling your loved one’s application. Who would you rather guide you during the process, a processing company with a singular focus or an Elder Law Attorney that takes a holistic approach and considers all the legal consequences involved with submitting a Medicaid Application?
Question: Can I use an online form for estate planning?
Answer: You could, but you should not.
The problem with online forms, and whatever other form of online estate planning DIY, is that (a) they are not likely prepared with the review of a qualified estate planning attorney, and (b) they are not likely state-specific. Each state has its own idea what a Will looks like, or a Health Care Proxy, or a Power of Attorney. If you are going to sign one of these forms, or any other form for estate planning, within your home state, then you should make sure the form you sign is valid in your home state. These online forms, or estate planning DIY websites, are not always prepared with the state-specific rules in mind. Nor are they prepared with a state-specific attorney’s guidance and review. Most times, these online forms or estate planning DIY websites are made universal because the company thinks the form could be used in any state.
New York, for example, has very specific rules about what a Health Care Proxy looks like and how it is signed. The same goes for a Power of Attorney. In fact, New York has a whole form of a Power of Attorney in the NYS law that MUST be followed. If certain things are left out of the form you sign, then it is invalid. There are instances where people have downloaded forms of a Power of Attorney, signed them, and tried to use them after their loved one became incapacitated, only to find out that the state-specific form was not used. In those instances, the NYS law is clear that there is no way to fix the form. In those instances, you need to start all over again. But what if you can’t? What if your loved one no longer has the capacity to sign such a form? In those instances, you are stuck without a proper form.
Which leads me to the other problem with online forms: you won’t know if your form is executed properly. With these online forms and estate planning DIY websites and kits, there is no way of knowing if you are doing things right until it’s too late and then there is nothing you, your family, or your friends can do about it. Without getting the relevant, specific, information and form from a qualified estate planning attorney, you will probably leave your family and friends with a complete mess.
What would happen if you download a Will, fill it out, and sign it, only for your family to learn (after you are gone) that the form is wrong for NY and the document was not signed in accordance with NY law? A big mess is what would happen.
I know the point is to save money. But, in the end, if the online form is improper or invalid, you will likely cost your family and friends more money. You are better off seeking out a qualified estate planning attorney from the beginning, ensuring things are done correctly, and making sure the attorney tries to work with you regarding fees. You’ll save yourself and your loved ones money in the long run.