The year 2012 has brought its ups and downs for many, including those affected by this past October’s Hurricane Sandy.
If you are, or have been, a client of my law office and the legal documents we prepared for you were ruined or destroyed as a result of hurricane damage to your home, please contact my office. At no charge to you, we will arrange to meet with you to discuss creating duplicate originals or attorney-certified copies. This special courtesy is good through January 31, 2013.
This year also saw changes in elder law, estate and special needs planning. The following overview summarizes the important changes that may affect you and your family:
- In 2011 New York legislation was passed proposing to recover against assets owned by a Medicaid recipient, including deeds with retained life estates – in addition to estate assets, after the death of a Medicaid recipient. That legislation was repealed.
- The Office of Persons with Developmental Disabilities (OPWDD) submitted an “1115” federal waiver, called the People First Waiver, to introduce managed long term Medicaid for persons with developmental disabilities. That waiver was amended and broadened to include the more flexible federal 1915(b) and (c) waivers for the delivery of home and community based services. The process is pending approval by the federal agency CMS; OPWDD continues to develop its protocols and services with input from advocates and consumers. Demonstration roll outs are expected in 2013.
- NYS Medicaid began its transition to Managed Long Term Care Medicaid (MLTC) to control the cost of delivery of services to seniors and persons with disabilities in the community as well as those in institutional settings. Long Island and other parts of NY State have watched as residents of the five NYC boroughs were required to enroll in managed care plans. The options are confusing. Advocates are keeping a close eye on the process; preservation of sufficient home care services for seniors and persons with disabilities; and long time legal rights including aid continuing (if a notice of discontinuance of service levels is received and a hearing to challenge is requested), and ‘Medicaid pending’ for receipt of home services while the Medicaid application is being processed by the local Department of Social Services. Now, more than ever, it is critical to seek legal counsel for your legal rights if you reside in NY State.
- Spousal refusal (the right of a spouse to refuse to contribute to the cost of care of their Medicaid spouse) remains legal in NYS.
- Community-based Medicaid programs such as Lombardi (skilled nursing and services at home), Traumatic Brain Injury (TBI Waiver), Consumer Directed Personal Assistance Program (CDPAP), and Medicaid Buy-In for Working Persons are expected to continue in 2013. Current enrollees will not be required to enroll in MLTC, but this may change in the future.
- The look back period for Medicaid chronic care services (typically nursing home care) remains 60 months (5 years) from the last transfer. Note that even small sums transferred by you or your spouse may be considered a ‘gift for the purpose of qualifying for Medicaid’ unless you can provide valid proof that another purpose was intended.
- NYS legislation restores funding for EPIC (the state program which assists lower income seniors enrolled in Medicare-required drug prescription programs); the restored program will pay the co-payments only.
- As of this writing, it is not known if Congress will pass legislation affecting inheritance taxes. Bush-era tax laws are due to expire and would lower the federal applicable credit (the amount which can be inherited without taxation) to $1 million from its current $5.1 million (more for couples with proper estate planning in their wills or trusts). NYS continues its applicable credit of $1 million. Flexible estate tax planning – often called Disclaimer Credit Shelter wills (or trusts) remains the best option for married couples. It’s also important to consider additional tax planning strategies such as life insurance owned by a life insurance trust.
- Remember that living trusts, alone, do not eliminate nor reduce estate taxes without proper tax planning provisions.
- Keep in mind that your loved ones with disabilities will continue to benefit from your estate planning with an inherited special needs trust (SNT). The inherited SNT does not have to be a separate, stand-alone document but can be part of your estate planning wills or trusts.
We wish you a happy and healthy holiday season.
Beth Polner Abrahams, Esq.
Naomi Levin, Associate Attorney
Hinda Wolfenson, Paralegal
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