“Elder law” is an interesting label. For many, the term has become synonymous with Medicaid planning; and is often associated with the chicken dinner seminar programs where free meals are handed out along with a whole lot of misleading nonsense about annuities and asset protection. That is not what elder law means at LawCounsel, P.L.C. Sure, we can assist with Medicaid, Medicare, Social Security, and benefits through the Department of Veterans Affairs, but for us, elder law is a much broader topic – it is about helping families face challenges that often come with getting older. These challenges can include financial exploitation and abuse, difficulty living independently, and cognitive decline, among other things.
EXPLOITATION AND ELDER ABUSE ISSUES IN MICHIGAN
Everyone is free to decide how they want to distribute their own property, either during their lifetime or after their death. However, there are those who would take advantage of an older or disabled person and exert pressure on them to make a bequest or gift they otherwise would not. This is known as undue influence, and it is unfair both to the person being influenced and to his or her loved ones.
If you suspect that your family member was improperly influenced by a caregiver, friend, or other family member to change his or her estate plan in that person’s favor, you do have recourse, but you should not hesitate, as your time to act may be limited. A will, trust, deed or beneficiary designation can be set aside by the probate court if there is sufficient evidence to show that its execution was the result of undue influence.
We are all influenced, directly or indirectly, by those around us. How does a court determine if influence was “undue?” There are a number of factors that go into a finding that someone was the victim of undue influence in Michigan:
- The person disposed of his or her property in a way that was unexpected (e.g. to a neighbor instead of to close family members)
- The person was susceptible to influence (e.g. due to age, mental or physical frailty, or isolation)
- The alleged influencer had the opportunity to influence (e.g. regularly cared for the person who was supposedly influenced)
Ordinarily, the burden of proof is on the person who is alleging undue influence. However, if the alleged influencer had a fiduciary relationship (such as a spouse, child, or an agent under a power of attorney) with the older person, the burden may shift to him or her to show that there was no undue influence.
At LawCounsel, P.L.C., we have represented clients in many cases where exploitation or abuse of a vulnerable adult was allegedly in play. We understand that these cases, particularly when they are between family members, can be very stressful and contentious for all involved. Whether you believe someone exerted undue influence on your loved one, or you have been unfairly accused of the same, we can help. We will use our knowledge and experience to help evaluate the likelihood of success in your case, and we will advocate for you with both strength and support at this difficult time to see that justice is done.
MICHIGAN MEDICAID PLANNING
Now more than ever, people need advice on planning for Medicaid assistance in the long-term care setting. In Michigan, like everywhere else in the United States, people are living longer. The bad news is that with age comes a higher incidence of chronic medical conditions, most notably dementia. It is no exaggeration to say that dementia among the elderly is epidemic. According to the Alzheimer’s Association, one in ten persons over age 65 suffers from some level of dementia, and that fraction increases to one in two at age 85.
Unfortunately, the devastation associated with chronic conditions like dementia is not limited to the personal crisis that naturally accompanies the loss of one’s physical or cognitive abilities; due to the structure of our health care system, such diseases also threaten the afflicted individuals, and often their families, with financial ruin. The average cost of nursing home care in 2021 is over $9,000 per month.
While LawCounsel, P.L.C. has a limited ability to address the personal and emotional trauma associated with these conditions, by helping clients understand the rules for achieving Medicaid eligibility while preserving their assets, we can alleviate the fear of financial ruin. Once you qualify for Medicaid, it covers almost every expense associated with living in a nursing home, including room and board, nursing services, and prescription and over-the-counter drugs. The process of preserving or protecting assets in the process of achieving Medicaid eligibility is referred to as Medicaid planning.
Probably more than in any other practice area, our lawyers are recognized as experts in Medicaid planning. Medicaid applications are filed out in our offices on a regular basis, and we are staffed with legal assistants with years of experience in compiling and preparing Medicaid applications.
Yes, Medicaid planning is confusing. Yes, there is a lot of misinformation out there. And yes, there are a lot of people making incredible claims about what they can do to “protect your assets.” Whatever.
In the end, there are rules that you can use to your advantage, those rules change frequently, but planning opportunities exist, and no law firm is more qualified to explain your options to you. If you decide that Medicaid makes sense in your situation, no law firm is better able to help you implement a plan and file an application.
VETERANS’ BENEFITS IN MICHIGAN
Today, approximately 582,000 veterans reside in Michigan. Of those, almost half served during the Vietnam war, and nearly all are 65 years of age or older. Consequently, LawCounsel, P.L.C. regularly encounters veterans law issues. Too often, the veteran or their survivor is unaware of the various benefits to which they may be entitled. Benefits delivered by the Department of Veterans Affairs include low- or no-cost health care, disability compensation, pension, burial, and assistance to widows and dependents. Our attorneys play a critical role in significantly improving the quality of life for our clients by asking a simple question: Were you or your spouse ever in the military?
Understanding Eligibility Requirements for Veterans Benefits
Many people believe that a veteran is not entitled to VA benefits if the veteran was not injured in the service. However, under the VA’s “Aid and Attendance” benefit program, the veteran’s disability need not be service-connected, and at age 65 the veteran is presumed to be disabled. This benefit of up to $2,295 can be of great importance for funding the costs of a nursing home or assisted living facility.
Under the new financial eligibility rules, eligibility exists your net worth is less than the maximum community spouse resource allowance (CSRA) amount. The CSRA is set annually by Medicaid. In 2021, the applicable CSRA is $130,380.
The Aid and Attendance benefit is needs based; and if your countable income is greater than the monthly maximum benefit amount, you will be denied benefits. However, your countable income may be reduced by unreimbursed medical expenses, including health insurance premiums, copayments, assisted living costs, and payment to family members pursuant to a caregiver contract. A veteran over the monthly benefit limit but paying for assisting living is thus very likely to secure the maximum benefit amount.
WHAT ARE FIDUCIARY SERVICES?
These days, people move around much more than they did in previous generations. As a result, we often see situations in which an older person lives in Michigan, but his or her child or closest relative lives hundreds of miles away outside the state.
This can present a real logistical problem when the older person begins to decline and needs more help with legal and financial matters than an out-of-state relative is able to provide. And older people are not the only ones who may need help; a younger person who has suffered an unexpected, life-changing event such as a stroke, car accident or serious illness may need assistance as well. A person in need of help may not want or be able, to move closer to family, and relatives may not have the time or resources to travel back to Michigan frequently.
Fortunately, there is an option to protect your loved one without utterly disrupting your life or theirs: professional fiduciary services.
A fiduciary is someone who manages another person’s finances or assets and is legally and ethically obligated to put that person’s interests first. At LawCounsel, P.L.C., we have an experienced professional fiduciary who is available to serve as your loved one’s conservator, trustee, or agent under a power of attorney.
A professional fiduciary can manage your loved one’s finances, pay their bills, sell real estate, manage assets, and handle other financial and legal matters on their behalf. This can give great peace of mind to the older person and his or her family. If a trusted family member is not available to take care of financial and legal matters, it is typically preferable to have a professional fiduciary overseeing them in any case. A professional fiduciary is experienced, keeps good records, makes the older person’s needs a priority, and is bound by legal and ethical rules to act in their best interests. These are advantages a well-meaning friend or neighbor usually cannot offer. In addition, having a professional fiduciary in place helps prevent unscrupulous persons from financially exploiting an older person.
A professional fiduciary is also an answer when a family member is mishandling the assets of a parent or there is friction and distrust between children over the management of their parent’s financial affairs.
LawCounsel, P.L.C. is here to help you and your family understand the unique complexities surrounding growing older. Contact us today for help in navigating exploitation and abuse, Medicaid planning, or veterans benefits, and ask us if you need assistance from a licensed professional in choosing a fiduciary.
WE LOOK FORWARD TO HEARING FROM YOU
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200 Viridian Drive
Muskegon, MI 49440
15130 Wildfield Drive
Spring Lake, MI 49456
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