And now, on to the main point of today’s post. An expanded, full-length version of that article has now been published in the Summer 2016 issue of the Roger Williams University Law Review.
From the dark period beginning in the 1700s to the present day provisions, the 35-page article provides an in-depth look at the evolution of guardianship laws in our state, and in particular, the grounds for the initiation of a guardianship proceeding and the procedural rights of the individual for whom the guardianship is sought.
A couple weeks ago I was pleased to speak at a CLE on Current Developments in Medicare and Medicaid for Long-Term Care offered by the Rhode Island Bar Association.
Two seniors members of the Executive Office of Health and Human Services, Jennifer Wood, Esq. and Deborah George, Esq., and I shared an under-used technique to enable clients to obtain extended access to the Medicare Part A skilled nursing home benefit.
We also discussed changes in the structure and procedures at the Rhode Island Offices of Health and Human Services (OHHS) and the Department of Human Services (DHS) and how to assist clients with Medicaid applications.
As reported by the RI Bar Association, the CLE was very well-attended, with the in-person presentation and live webinar each drawing more than 70 participants.
If you missed the live presentation, the On Demand webinar is now available; details are below.
The conference included valuable information for those with MS and their caregivers, including nutrition and MS; preparing for MS doctor visits; managing fatigue and bladder/bowel symptoms related to MS; and moving forward after an MS diagnosis.
Particular thanks and kudos to Meredith Sheehan, Program Manager – Community Programs, and her staff for an excellent program.
For more information on local programming for people living with MS, along with the latest MS research findings, first-person stories, advocacy updates, upcoming events, and fundraisers, you can subscribe to the MSConnection quarterly newsletter.
1984 doesn’t seem like that long ago. But at that time, only a little over 30 years ago, guardianship laws in this state were stuck in 1905. And in 1905, laws were only a marginal improvement over the colonial era laws first enacted in 1742. It’s hard to fathom, but in 1984, a person in this state could be classified as an “idiot, lunatic, or person of unsound mind” and stripped of his or her personal autonomy.
The evolution of guardianship law in Rhode Island has been equally fascinating and frustrating. The 1992 Act and subsequent updating have brought about significant modernization to the law. Nevertheless, there are those who believe that there remains more to do.
I have written about this topic in an article published in the current issue of the the Rhode Island Bar Journal. If you’d like to read more, see The Evolution of Rhode Island Guardianship Law in the May/June 2016 issue, beginning on page 5.
Rhode Island attorneys who practice elder law or advise healthcare facilities may be interested to know about an upcoming RI Bar Association CLE seminar on Medicare and Medicaid. I’m pleased to announce that I’ll be speaking at this seminar along with two senior members of the Rhode Island Executive Office of Health and Human Services next month. Here are the details:
*Unable to attend in person? A live webcast takes place at the same time*
Many Americans rely on Medicare and Medicaid, and they are critical in paying for long-term care. As an attorney advising a client or representing a hospital or nursing home facility, it is imperative to keep up with the changing laws.
This program will review an under-utilized technique to enable clients to obtain extended access to the Medicare Part A skilled nursing home benefit. It will also review changes in the structure and procedures at the Rhode Island Offices of Health and Human Services (OHHS) and the Department of Human Services (DHS) and how to assist clients with Medicaid applications.
Don’t miss your chance to expand your proficiency in this unique area of practice and meet with personnel from the Executive Office of Health and Human Services.
Speakers: Deborah A. George, Esq.
Legal Services Administrator
Office of Legal Services
Executive Office of Health and Human Services
Jennifer L. Wood, Esq.
Deputy Secretary/General Counsel
State of Rhode Island
Executive Office of Health and Human Services
Mark B. Heffner, Esq.
Certified Elder Law Attorney*
Heffner & Associates
I’m posting the slides from my presentation here. Whether or not you attended the program, if you have questions about financial or legal planning for a loved one with dementia or Alzheimer’s, please feel free to contact me.
On July 21st at the Rhode Island Alzheimer’s Association, as part of its “Getting Started” series, I presented on the Legal and Financial Aspects of Alzheimer’s Disease. A number of excellent questions arose from the discussion with the program participants, including one which does not arise frequently at gathering of this type, and the second which I do not ever recall hearing at a gathering of this type. I told the group that I would post some references pertaining to each of questions, which I will in this post.
Both questions share a similar theme, which is how do those of the baby boomer generation (or even older Gen-Xers), who are in the role of caregivers for those with Alzheimer’s Diseases or other chronic conditions prepare themselves for a future in which they themselves may face these circumstances.
The first question was about long-term care insurance. I related to the group that these products had undergone a number of changes since first coming on the scene in the 1980s, including in their pricing and the availability of companies issuing these policies. Perhaps the best recent articles on this topic which I have seen was from the Wall Street Journal, with the descriptive title Long term care insurance: Is it worth it?
The second question was whether I knew of “plain English” (versus legalese) book about what baby boomers, Gen Xers and others should be aware of as we grow older. My initial response to this question was later confirmed when a pulled from my bookshelf Alive and Kicking: Legal Advice for Boomers. A co-author of this book is Robert B. Fleming, an Arizona attorney who is also the co-author of a book that I use for my spring semester course at Roger Williams University. I first met Robert in 1990 in San Diego, California at my first National Academy of Elder Law Attorneys program. He writes in lively, straightforward style, and his book would be where I suggest that anyone (and not just baby boomers) begin.
This post will focus on one of these–Section 6–which seeks to directly affect the limited opportunities for middle-class Rhode Islanders requiring Medicaid long-term care services to preserve some of their assets. The changes in this Section 6are all to Rhode Island General Laws §40-8-15 entitled, “Lien on Deceased Recipient’s Estate for Assistance”.
First, the Governor’s proposal seeks to expand “estate recovery” to assets passing outside the probate estate. Literally twenty years ago, in 1995, the State amended this section of the General Laws to conform with a federal law requiring states to put claims on the probate estates of deceased Medicaid recipients. The federal law, called “OBRA ‘93”, enabled the states to, if they chose, “expand” their estate recovery to non-probate assets.
The large majority of states chose, as Rhode Island did, to limit its estate recovery efforts to probate assets. This was the procedure utilized by the Department of Human Services for the next seventeen years.
In 2012, however, the State sought to expand its estate recovery to include non-probate assets. This would means, for example, that real estate held jointly by a mother in a nursing home on Medicaid with her adult son, which would ordinarily pass without a claim to the adult son, would now be subject to the State’s lien. Due to the dramatically increased efforts which would be required by the Department of Human Services to accomplish this “expansion”, as well as the House Finance Committee’s understandable distaste for adding any additional pain beyond that required by federal law, this proposal was roundly rejected by the House Finance Committee.
Also rejected in 2012 was a proposal by the State to put so-called “lifetime liens” on property of certain Medicaid recipients. Presently, as long as the Medicaid recipient declares an intention to return to his or her home, the home remains an exempt asset. While the home is potentially vulnerable post-death if it passes through probate, there is no impact during the life of the Medicaid recipient (unless the property is sold in which case the Department of Human Services needs to be notified).
In 2012, the House Finance Committee also rejected this effort to impose “lifetime liens”. It did, however, enact two statutes that provided additional protections to the Department of Human Services to prevent properties belonging to current or deceased Medicaid recipients from being sold without the Department’s notice.
Fast forward to May 7, 2015. In Section 6 of “The Reinventing Medicaid Act of 2015”, the current administration “doubles down” on the efforts made in 2012. Apparently unaware of the drubbing these proposals took by the House Finance Committee in 2012, the Raimondo administration has tried them again, adding to them an additional extraordinary provision which would allow the Department to collect interest at the rate of 12% per annum on its claims.
You read that right – 12%. Your CDs are not even getting 1%. The 10-year U.S. Treasury bill is getting slightly more than 2%. But the Governor proposes that the State, unlike any other claimant in a probate estate, receive not only a statutory rate of interest, but a rate equivalent to that which a successful party in civil litigation would enjoy after obtaining a judgment.
But wait – there’s more! Section 6 of “The Reinventing Medicaid Act of 2015” adds an entirely new section which would deal with eligibility for long term care Medicaid, not just estate recoveries. It attempts to graft onto the estate recovery provisions statutes—not regulations as currently exists—regarding asset transfers and eligibility requirements for long-term care Medicaid. And as an added bonus, it is a remarkably poorly written, referring to terms like “annuity”, “penalty period” nowhere defined in the Rhode Island General Laws.
On Tuesday evening, May 19th, I testified (video below) before the House Finance Committee in opposition to Section 6 of the Act. Some of the Committee members were the same Representatives who heard and rejected the previous attempt in 2012.
I am confident that the House Finance Committee and the House the Representatives as a whole will again reject this aggressive and unnecessary attempt by the State to add pain to Rhode Islanders who already have the misfortune of suffering from a chronic illness or condition requiring them to seek long-term care Medicaid benefits.
In his State of the Union address, President Obama will, according to a report in the New York Times, propose what his advisors are calling the “trust-fund loophole”, in order to help finance tax cuts for the middle class.
Very interesting. My practice does not involve “trust fund babies” but rather the same middle-class people the President is seeking to benefit. And it is often middle-class people who are the direct beneficiaries of this “trust-fund loophole”.
Let’s first look at what this “loophole” is and and how it works. Suppose a parent gave an adult child the home which the parent purchased in the 1960s for $10,000. Further suppose that when that parent dies that same house is worth $150,000.
When the adult child sells the parent’s home, she will realize capital gain in the amount of $140,000. This amount is the difference between the price at which she sells it – $150,000 – and the parent’s “tax basis” of $10,000. Because the parent gave the property outright during the parent’s life, the adult child received this “carry-over basis” of $10,000.
Now imagine same parent, adult child and house in a different example. Instead of giving the property to the adult child outright during the parent’s lifetime, the parent instead gives the property to the adult child following the parent’s death through a will, trust, life estate deed or other device through which the parent retained certain rights over the house. In that case, the child would receive a “stepped –up basis”–meaning a cost basis equal to the value of the house at the time of the parent’s death.
So we have a very different result. In this case the child’s gain on the sale of the property would be equal to the $150,000 sales price, minus the $150,000 “stepped-up basis” or zero. Zero as in zero capital gains tax to the adult child. Versus $140,000 in capital gains tax in the “carry-over basis” example.
This is the “trust fund loophole” that President Obama seeks to close. The New York Times story quotes administration officials as stating that the tax “would fall almost entirely on the top 1 percent of taxpayers” and “would apply to capital gains of $200,000 or more per couple”.
We’ll see. In the meantime, it’s interesting to see how the term “loophole” can mean different things to different people.
Many elderly (as well as non-elderly) clients have brokerage accounts which include mutual funds. Many of my clients who have these funds (like perhaps the most of the rest of us) may do nothing more than open the monthly statement from the brokerage firm and glance at the results. Though there are exceptions, most clients whom I have encountered are not active traders of these mutual funds.
Nevertheless, as Jason Zweig points out in a recent Wall Street Journal article, some of those people will be receiving IRS Form 1099s later this month showing capital gains distributions from the mutual fund which they held. How can this be when the investor did not sell any portion of the fund during the year?
The answer is that is while the account holderhimself may not have sold any portion of his fund, the manager of the mutual fund did. For example, managers of mutual funds who invest in stocks may have concluded that, as a result of the gains in the stock market in 2014, it was a good time to sell certain individual stocks within the mutual fund. Because the stock was purchased by the manager at a lower price than at which it was sold–generally a good thing–this will result in capital gains to the fund. And as Jason Zweig points out:
“Mutual funds are generally required by tax law to pay out all profits they realize on the sale of their holdings. An investor outside a retirement account is typically liable for taxes on any gains the fund distributed during the tax year – even if he or she never sold a share of the fund.”
The last part – outside of a retirement fund – means outside of a so-called qualified retirement account such as an IRA, 401k or other tax-deferred account. Investors in these types of accounts will generally not be liable for the capital gains of the fund in the year in which they were incurred.
For those holding mutual funds outside of these tax-deferred accounts, however, the end of January may contain in the mail a notice that such gains were incurred and need to be accounted for in determining potential 2014 income tax liability.