Elder Law focuses on a class of persons and therefore requires the attorney to understand the interactions of different fields of law. I assist our clients in mapping out their futures with the appropriate legal, financial, and health safeguards. Clients or their children may visit us in times of crisis; in those circumstances we provide the best options to resolve the issues while preserving the dignity and independence of all parties.
We often assist clients with: estate planning (wills, trusts powers of attorney), advanced directives, guardian and conservatorships, Medicaid planning, income cap trusts, under 65 disability trusts, VA trusts, bankruptcy, and other matters. Please contact us for an appointment to discuss your concerns.
Protected Proceedings – Guardian and Conservatorships
Both a guardian and conservator are substituted decision makers who are appointed by the court after a petition is filed. An attorney will generally assist you with filing the proper paperwork. A court appoints a conservator to manage the property and finances of person(s) who cannot effectively manage their own affairs. That person is referred to as the “protected person.” The court appointment of a conservator does not necessarily mean that the protected person is incapable of making decisions about other aspects of his/her life. However, if a protected person is also incapable of handling other aspects of their lives, then a guardianship is also appropriate. A guardian is responsible for the protected person’s well being while the conservator is responsible for the protected person’s financial affairs. Becoming a guardian or conservator can be a rewarding experience and can be also be very stressful. Taking care of another individual is a serious commitment, let our experienced attorney guide you through this process.
Under 65 Disability Trusts
An Under-65 Disability Trust is form of Special Needs Trusts. Special Needs Trusts are designed for individuals who require public benefit programs such as Medicaid or the Oregon Health Plan. To maintain eligibility for these programs, the individual must not receive cash in excess of the particular program’s limits. However, maintaining eligibility is a problem when a disabled individual inherits, receives a settlement from a personal injury claim or “earns too much” from working on their own. However, current federal and state regulations allow such funds to be held in trust for the disabled individual’s benefit.
Because these funds belong to the trust and not the individual, they are not counted as part of an individual’s resources and the individual may continue to qualify for the public assistance benefits. If a disabled person is the owner of the resources, the court can be petitioned to establish an Under 65 Disability Trust and the individual’s funds are transferred to this trust. However, any funds remaining in this trust at the disabled person’s passing will be paid back to the state or federal government.
This trust must be managed by a trustee on behalf of the person with the disability. The trustee can spend the funds in accordance with the rules set forth in the trust. Those rules preclude giving funds directly to the disabled individual or providing food or shelter in order to allow the individual to continue to qualify for the public assistance programs. However, funds can be used for such supplemental needs as travel, education, medical expenses not covered by public assistance programs (including dental work and vitamin supplements), pet expenses and many other similar expenses. A special needs trust is a complex tool to create and maintain. Please contact my office for more information.
In Oregon, Medicaid eligibility is determined by three factors:
- Whether the personal has the physical need for assistance;
- How much income the individual earns; and
- The value of the assets that the individual AND his/her spouse own.
A DHS worker will perform a needs-based assessment to determine the physical requirements for Medicaid. However, once the physical requirement is established, the financial need must also be assessed. In order to go onto Medicaid, an individual may only retain $2,0001 worth of nonexempt assets and may only earn $2,022.002. Often, an individual has assets over the limit and must spend down those assets before qualifying. An elder law attorney can provide guidance on how to best manage assets for future benefit.
Many individuals whose assets are under the resource limit earn slightly more income than is allowed. However, that income may still not be enough to pay for appropriate care. In such cases, an Income Cap Trust may be used to allow the individual to qualify for Medicaid.
Income Cap Trust
In an Income Cap Trust, the income of the individual (known as the “trustor”) is placed in a trust that is managed by a friend or family member (known as the “trustee”). The trustee uses the funds to pay for the trustor’s care. These funds must be spent in accordance with Medicaid rules. After an analysis of the trustor’s income and expenses, a payout plan known as Schedule B is created. Once the trust is established, the trustee must payout the funds according to the Schedule B. When the trustor passes away, any excess funds remaining in the trust are used to reimburse the state for its costs.
1. Please note, that many of the assets commonly owned may be exempt from this $2,000 limit. Some examples include: a home, car or burial plan depending on certain circumstances. Please talk to your elder law attorney for more details.
2. Please note, these figures are current through July 2009 only.