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Top 5 Elder Law Questions

By Kimberly FowlerOctober 3, 2016
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Are you navigating retirement or caring for a senior who is? There are a number of questions that arise along the way.

Stuart Furman, Esq., an elder law attorney in California for over 34 years and author of the “ElderCare Ready Book” and the award winning “ElderCare Ready Pack” shares his expertise in the field.

Top Elder Law Questions

These are the top 5 questions that Furman hears from his clients:

1. How can I afford long term care for the rest of my life?

This is a common question with no easy answer. “You can’t make money magically appear,” Furman says. Instead, he suggests that you “take a look at what your needs are and will be, what resources you have and find ways to stretch those out.”

To do this, you’ll need to consider:

  • Cost of living at home with home care, assisted living, skilled nursing, and other quarters
  • Illnesses you have and the different kinds of care and facilities (home care or nursing care) you’ll need based on your situation
  • Options to generate cash resources such as reverse mortgages, selling your home, selling your life insurance policy, and other financial considerations
  • Your age and projected life expectancy
  • Whether you can rely on your family for help

2. How can I protect my assets from Medi-Cal (in California) taking my estate from me when I die? (referring to the Medicaid lien).

Most people have a “false impression that when they apply for Medi-Cal that anything that is exempt under their application is also exempt from recovery under the Medicaid recovery statutes,” Furman says. This is not the case.

“One of the common misconceptions people have is that they confuse the wording used in Medi-Cal. Often, people confuse eligibility exemptions with recovery exemptions. If their house is exempt, and thus not counted for eligibility determination, it doesn’t mean that it is also exempt from the recovery. This confusion often leads to families having a Medi-Cal recovery lien placed on their home when they thought their home was exempt from the program,” Furman explains.

Unfortunately, your local Medi-Cal or Medicaid office cannot offer advice on how to protect assets.

However, there are legal methods to protect your house from a Medi-Cal lien but there are myriad issues to address with each strategy. Options to protect a home also vary by state, so you should consult with your elder law attorney.

3. Can I get a living will* so that there is no probate?

*Actually, when people ask this question they often confuse the language, Furman mentions. When they say ‘living will’ they are actually referring to a ‘living trust.’ “A living will and a living trust are two different legal documents. A living will is a life directive in which you would ask someone to ‘pull the plug’. A living trust is a tool used to avoid probate,” he explains.

You can use a living trust as a tool to avoid probate, but the rules and regulations surrounding living trusts vary by state, so it’s important to talk to your attorney about your unique situation.

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4. Can I change my trust once I create one?

Yes, you can.

There are two types of trusts:

  • Revocable/amendable trusts. These can be changed, modified, or revoked by the creators of the trust.
  • Irrevocable trusts. Irrevocable trusts are “irrevocable…except when they’re not,” Furman humorously says, “meaning there are certain circumstances in which changes can be made, or revoked, even if it is an irrevocable trust.”

5. Am I giving up any control if I create a living trust?

No, you aren’t.

With a traditional living trust, change of control only happens upon death or legal incapacity. “You are in control until death (the death of you and your spouse, if applicable) and the living trust is then distributed to the beneficiaries,” Furman explains. “If you are legally incompetent, the successor trustee will assume control of your trust without court involvement,” he concludes.

These elder law topics are significant, and require a discussion of your unique situation with your elder law attorney. You can reach Stuart Furman, Esq. by:

What questions do you have for Stuart about elder law? Share them with us in the comments below.

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Kimberly Fowler