FREQUENTLY ASKED QUESTIONS

My financial advisor recommended that I use a living trust (or revocable trust) to protect my assets.  Should I do that?

 

There are a couple of problems with this scenario if you are looking at a possible Medicaid application anytime in the future.  First, unless the financial advisor is also an attorney, having the financial advisor create the trust is practicing law without a license.  There is no protection for the client if that trust is drafted or funded improperly.  Secondly, any assets inside revocable or living trusts are always available to the person who created the trust.  For Medicaid purposes, this provides no help at all because a caseworker would require that all assets inside the trust be spent before any benefits could be obtained.  Finally, in New York State, there have been suggestions that if a Medicaid applicant’s home is placed inside a trust that the exemption that applies to a residence for Medicaid eligibility will not apply.

 

 

Why do I need a power of attorney?  Won’t my spouse just be able to take care of everything for me?  All of our accounts are jointly titled.

 

As for bank accounts there may be no problem if one spouse loses capacity.    (Keep in mind that powers of attorney cease upon death.)  Many assets and benefits do not allow for joint title, however.  Life insurance policies, employer benefits, IRA accounts and other retirement accounts will essentially be frozen if one spouse loses capacity and the other is not named as a power of attorney.  Should this happen a guardianship proceeding in court will be needed for someone to obtain authority to act with those assets.  In addition, if gifts need to be made for a Medicaid plan, without a power of attorney the spouse who still has capacity cannot make gifts on behalf of the other spouse, even to herself or himself.

 

 

My husband just went into the nursing home from the hospital.  Is it too late to protect some of our assets? 

 

Absolutely not.  The amount that can be protected may be lower than if we had done advance planning, but there is almost always something that can be done.  Do not delay a consultation with an elder law attorney, though.  Timing is crucial.

If you have a general question (remember, I cannot give specific legal advice online), please contact me.  You may see it posted here! (You may remain anonymous for posting purposes.)