Category : News

Requiring Adult Children to Pay for Aging Parents’ Care

Did you know you could be responsible for your parents’ unpaid bills? More than half of all states currently have laws making adult children financially responsible for their parents, including their long-term care costs. However, these laws are rarely enforced.

Filial responsibility laws obligate adult children to provide necessities like food, clothing, housing, and medical attention for their parents who cannot afford to take care of themselves. States may allow a civil court action to obtain financial support or cost recovery, impose criminal penalties on children who do not support their parents, or allow both civil and criminal actions.

Generally, most states with such laws do not require children to provide care if they lack the ability to pay. States also vary on what factors they consider when determining whether an adult child is able to pay. Children may not be required to support their parents if the parents abandoned them or did not support them.

With regard to long-term care, most low-income parents qualify for Medicaid, making it unnecessary for a nursing home to pursue the resident’s children for payment. When the Deficit Reduction Act of 2005 made it more difficult to qualify for Medicaid, experts predicted a wave of lawsuits by nursing homes under state filial responsibility statutes, but that has not happened. However, in 2012 a court in Pennsylvania ruled that a son was responsible for his mother’s $93,000 nursing home bill under the state’s filial responsibility law.

While in most instances adult children are not held responsible for their parents’ long-term care bills under these laws, they may have to pay a nursing home in other circumstances. In some cases, children have been held liable if their parent transferred assets to them, making the parent ineligible for Medicaid. Additionally, there are cases in which children who signed an agreement affirming that they would assist their parent in paying for a nursing home have been sued for breach of contract by the nursing home. After a parent dies, Medicaid estate recovery allows the state to recoup Medicaid benefits from the parent’s estate, reducing the amount the children can inherit.

If your parent needs long-term care, be sure to consult with your attorney to make certain you are not creating a situation in which you might be liable for your parent’s care.  Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Which States Have Been Hardest Hit by the Nursing Home Staffing Crisis?

The COVID-19 pandemic has caused nursing home staffing shortages across the United States, even forcing facilities to close, but some states have been hit harder than others. A new analysis looks at which states are confronting the worst staffing problems.

Overwhelmed by the stress of long hours, low pay and exposure to the COVID-19 virus, nursing home workers have been quitting in record numbers. According to the Service Employees International Union, more than 420,000 workers — nearly 10 percent of the workforce — left the long-term care industry between the start of the pandemic and January 2022. The labor hemorrhage has turned what was already a chronic staffing problem into a full-blown crisis as understaffed facilities struggle to care for patients, accommodate family visitation, and admit new patients waiting in hospitals to be discharged.

The online platform Seniorly, which helps families find senior living facilities, recently analyzed staffing data in all 50 states and identified which ones have been hardest hit. Overall, one-quarter of nursing homes in the United States had staff shortages as of the end of February 2022, but Minnesota was reporting the most, with 41 percent of facilities experiencing a scarcity of workers. Washington and Maine also had large numbers of facilities with insufficient staff (close to 38 percent in both states).

According to Seniorly, the biggest shortages are among nursing workers (registered nurses, licensed practical nurses, and vocational nurses) and aides (certified nursing assistants, nurse aides, medication aides, and medication technicians). These are the employees who provide the most direct care to nursing home residents. Although fewer facilities (an average of 3.5 percent) are experiencing shortages of higher paid workers, such as physicians, physician’s assistants, and advanced nurse practitioners, the number of facilities with a dearth of even these types of workers has jumped almost a percentage point since 2020.

While most states are enduring huge staffing problems, a few states are actually trending in the right direction. Arkansas, Connecticut, and Texas have fewer facilities reporting staffing shortages than in 2020. And California has the lowest percentage of facilities with staffing issues (about 2 percent).

To read the full analysis and see how your state is doing, click here.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Using an Intentionally Defective Grantor Trust to Transfer Assets

An intentionally defective grantor trust (IDGT) is a common estate planning tool that is used by wealthy families to transfer assets from one generation to the next while achieving significant tax savings. IDGTs are especially useful if you have assets that will appreciate significantly over time.

An IDGT is “intentionally defective” because it purposely gives the grantor – the person creating the trust – a right or power that allows the grantor to pay taxes on the income generated by the trust even though the trust assets are not a part of the grantor’s estate. The trust is irrevocable, which means the trust assets will not be counted for estate tax purposes. Transferring assets to an IDGT takes the assets out of an estate while the trust’s income is taxed at the grantor’s personal rate, not the trust’s much higher rate.

The benefit of an IDGT is that it allows the trust to grow without having to use trust assets to pay income taxes. This amounts to a tax-free gift to the trust. In addition, by paying the income taxes, you are also continuing to lower your taxable estate. IDGTs work best for assets that are likely to appreciate significantly in value, such as stock or real estate. For example, suppose you fund an IDGT with $10 million in assets and it earns 5 percent annually over a 30-year period. If the trust does not have to pay income tax, it might grow to more than $43 million. If the trust needs to pay income taxes from its own assets, its growth would likely be significantly less.

Bear in mind that when you transfer the assets to the trust, the transfer may be subject to gift taxes. Currently, the annual gift tax exclusion is $16,000 (for 2022). This means that any person who gives away $16,000 or less to any one individual (anyone other than their spouse) does not have to report the gift or gifts to the IRS. In addition, the IRS allows you to give away a total of $12.06 million (in 2022) during your lifetime before a gift tax is owed. Even if you gift assets to an IDGT and reduce your future gift and estate tax exemption, any future growth will occur outside of your estate.

If you want to avoid gift taxes, you may be able to sell assets to the trust. This is usually done in installments through an interest-bearing promissory note. When an asset is sold to an IDGT, there are no capital gains taxes because you are selling something to yourself. If the assets in the trust gain more in value than the interest rate, then the sale will still benefit the trust overall. This strategy works best when interest rates are low.

To find out if an IDGT is right for you or to learn more, reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

What to Do If You Want to Leave Your Children Unequal Inheritances

Parents usually want to leave their children equal shares of their estate, but equal isn’t always fair. If you plan to provide more (or less) for one child in your estate plan, preparation is important.

It is natural for parents to want to treat their children equally in their estate plan, but there are some circumstances in which a parent might want to leave children unequal shares. If one child is providing all the caregiving, the parent might want to reward that child. If one child is substantially better off than another child, then the parent might want to provide more for the child who has a greater need for the funds.

Other factors that can influence how much to give each child is if one child has special needs or if there is a family business that only one child wants to run. It’s also possible that the parents have already provided more for one child during their lifetime, maybe by paying for graduate school or helping them buy a house.

Whatever the reason for leaving your children unequal shares, the important thing is to discuss your reasoning with the children. Sit down with them and explain your decision-making process. If you feel like the conversation could be difficult and contentious, you could hire a mediator to help facilitate the discussion.

Your children may be understanding of your decision, but if you are worried about one child challenging your will after you die, you may want to take additional steps:

  • Draft your will and estate plan with the assistance of an attorney and make sure it is properly executed. To avoid accusations of undue influence, do not involve any of your children in the process.
  • Explain in detail your reasoning in your estate planning document and make it clear that it is your decision and not the influence of the child who is receiving more.
  • Include a no-contest clause (also called an “in terrorem clause”) in your will. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Kristen Moonan & Amy Stratton Honored by RI Monthly Excellence in Law

Congratulations to MSW partners Kristen Prull Moonan and Amy Stratton who were again honored with the Professional Excellence in Law award by Rhode Island Monthly. They were recognized in the area of  Wills, Estates & Trusts for the fourth year in a row.

Honorees were nominated and chosen by their peers, exemplifying the leading local lawyers in their respective areas of practice.

Reach out to Amy Stratton or Kristen Prull Moonan to learn more.

Using a Roth IRA as an Estate Planning Tool

A Roth IRA does not have to be used as just a retirement plan; it can also be a way to transfer assets tax-free to the next generation.

Unlike a traditional IRA, contributions to a Roth IRA are taxed, which means that the distributions are tax-free. Also, unlike a traditional IRA, you are also not required to take any distributions on a Roth IRA, regardless of your age. If you don’t need the money for retirement, you can leave all of it in the IRA to grow tax-free and eventually pass on to your heirs.

If your spouse is the beneficiary on your Roth IRA, your spouse can become the owner of the account. Your spouse can either put the IRA in his or her name or roll it over into a new IRA, and the IRS will treat the IRA as if your spouse had always owned it. Just like you, your spouse does not need to take any distributions from the IRA if they are not needed.

The rules for a child or grandchild (or other non-spouse) who inherits an IRA are different than those for a spouse. They must withdraw all of the assets in the inherited account within 10 years. There are no required distributions during those 10 years, but it must all be distributed by the 10th year.

Certain non-spouse beneficiaries are treated like spouses, which means they can treat the IRA as their own:

  • Disabled or chronically ill individuals
  • Individuals who are not more than 10 years younger than the account owner
  • Minor children. Once the child reaches the age of majority, he or she has 10 years to withdraw the money from the account.

The benefit of a Roth IRA for your heirs is that the assets will be distributed tax-free. As long as you opened and began making contributions to the Roth IRA more than five years before you died, the distributions will not be taxed when the beneficiary takes distributions.

Another consideration is that money you leave your heirs in a Roth IRA does not go through the probate process. This can make it easier for your beneficiaries to access the funds quickly. But make sure that you name a beneficiary on your account. If no beneficiary is named, the account will go to your estate and will then have to go through probate. Also, be sure to regularly check that your beneficiary designations are up to date.

Leaving your heirs a tax-free Roth IRA may not always be the best plan. In figuring out the best type of IRA to leave to your beneficiaries, you need to consider whether your beneficiary’s tax rate will be higher or lower than your tax rate when you fund the IRA. In general, if your beneficiary’s tax rate is higher than your tax rate, then you should leave your beneficiary a Roth IRA. Because the funds in a Roth IRA are taxed before they are put into the IRA, it makes sense to fund it when your tax rate is lower. On the other hand, if your beneficiary’s tax rate is lower than your tax rate, a traditional IRA might make more sense. That way, you won’t pay the taxes at your higher rate; instead, your beneficiary will pay at their lower tax rate.

To determine if a Roth IRA should be a part of your estate plan, consult with your attorney.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

When to Leave a Nursing Home and Move Back Home

Leaving a nursing home to return home is a goal for many residents and their families, but it requires careful consideration. While returning home is a good move for some, it won’t work for everyone.

A nursing home stay does not have to be permanent. Many residents enter a facility temporarily to recover from an illness or accident and are able to easily transition back to living at home. For residents who continue to need care but would rather be at home, moving out of a nursing home is more complicated.

Before considering moving out of a nursing home, here are some questions to bear in mind:

  • Can you receive the care you need at home? Some patients require help with eating, dressing, and going to the bathroom. You need to consider whether you can adequately get that care at home.
  • Who will be providing the care? The care can come from family members or hiring in-home health care. If family members aren’t available, is there money to hire help? All 50 states have Medicaid programs that offer at least some home care. You will need to check with your state to see if you qualify.
  • Will you be able to take the medications you need at home?
  • How is your physical and emotional stamina? Moving back home requires determination and an ability to manage problems, since not everything will be taken care of as in a facility.
  • Is the house set up to safely accommodate you? Are there a lot of stairs? Does the bathroom have rails? If the patient has dementia, there may be other considerations to take into account.
  • Is there transportation available to get to doctor’s or other appointments?

If you determine that moving back home is the best option, then you can begin to craft a plan based on where you will live and who will provide care. Contact your local Area Agency on Aging to get help finding and coordinating services.

There is a federal program called Money Follows the Person that is designed to make it easier for nursing home residents who qualify for Medicaid to move out. Currently, 34 states and the District of Columbia participate in the program, which provides personal and financial support to help eligible nursing home residents live on their own or in group settings.

For tips on transitioning from a nursing home to the community, click here.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Why Small Business Owners Need an Estate Plan

Running a small business can keep you busy, but it should not keep you from creating an estate plan. Not having a plan in place can cause problems for your business and your family after you are gone.

While an estate plan is important for everyone, it is especially important for small business owners. Planning allows you to dictate what will happen with your business after you die or are no longer able to manage it. It can help you avoid excess taxes and debts and facilitate your business’s continued success.

Before sitting down to start the estate planning process, you should think about your goals for the business. What do you want to have happen if you die or become incapacitated? Should the business continue with current partners or be sold to new owners? Should your family take over? Should the business be shut down? Consider your family dynamics when thinking about these questions. Once you have come up with your goals, you can create a plan to meet them.

The basic building blocks of any estate plan include a will, power of attorney, and medical directives. The will allows you to direct who will receive your property at your death while the power of attorney and medical directives dictate who can act in your place for financial and health care purposes.

Following are some additional things a small business owner should consider as part of an estate plan:

  • Tax Planning. If your business is not a separate entity, you may want to consider ways to minimize estate taxes. The current estate tax exemption ($12.06 million in 2022) is so high that most estates do not pay any estate tax. However, a small business could put an estate over the limit. Also, the fact that the estate tax exemption is set to be cut in half in 2026 and that states have their own estate taxes means that tax planning is important. You may want to put your business assets into a trust or a separate business entity like a limited liability company to lower your estate tax burden.
  • Trust. A trust can be useful not only to reduce estate taxes, but also to ensure the continued running of your business if you die or become incapacitated. Because a trust passes outside of probate, the assets in the trust can be transferred immediately to the person you want to run the business without waiting for the whole estate to go through probate. In addition, if you become incapacitated, the trustee can continue to run your business without court involvement.
  • Buy-Sell Agreement. If you own your business with others, a buy-sell agreement can be very useful. Buy-sell agreements are used if one of the owners dies, leaves the company, or becomes incapacitated. It specifies who can buy an owner’s share of the business, under what conditions, and for what price.
  • Life Insurance. When you own a business, life insurance takes on new importance. A life insurance policy can ensure that your family continues to receive an income in the event of your death. It can also provide funds to keep the business running and be used to fund a buy-sell agreement.

Your estate planning attorney can help you come up with a plan to meet the needs of your business.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

What to Do If Your Medicaid Application Is Denied

If you apply for long-term care assistance through Medicaid and your application is denied, the situation may seem hopeless. The good news is that you can appeal the decision.

Medicaid is a program for low-income individuals, so it has strict income and asset eligibility requirements. Qualifying for Medicaid requires navigating the complicated application process, which has many potential stumbling blocks. However, a Medicaid denial does not mean you will not eventually qualify for benefits.

The Medicaid agency may deny a Medicaid application for a number of reasons, including the following:

  • Missing documentation. You need to show proof that you are eligible for benefits, which usually means providing Social Security statements, bank records, property deeds, retirement accounts, and insurance records, among other things.
  • Excess assets. In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in “countable” assets (in most states).
  • Transferred assets. If you transferred assets for less than market value within five years before applying for benefits, you may be subject to a penalty period before you become eligible for benefits.

The Medicaid agency is required to issue the denial notice with 45 days of the application (or 90 days if you filed for benefits on the basis of a disability). When you get a denial notice, read it carefully. The notice will explain why the application was denied and specify how to file an appeal.

Before filing a formal appeal, you can try informally asking the agency to reverse the decision. If you made a mistake on the application, this is the easiest and quickest way to proceed. If the caseworker made a mistake, it may be more complicated and require escalation to a supervisor or a formal appeal.

Appealing a Decision
The denial notice will tell how long you have to file an appeal—the deadline may be as short as 30 days or as long as 90 days after the denial notice. It is important to file the appeal before the deadline. Whether the denial notice requires it or not, you should submit your request for an appeal in writing, so that there is a record of it.

Once your appeal is submitted, the Medicaid agency will set a hearing date. Applicants must attend the hearing or their cases will be dismissed. You have a right to have witnesses testify at the hearing and to question the Medicaid agency’s witnesses. It is a good idea to have an attorney to help you through the appeal process. An attorney can make sure you have all the correct documentation and information to present at the hearing.

If you win the appeal, your benefits will be retroactive to the date of your eligibility—usually the date of your application. If you lose the appeal, the notice will explain how to appeal the decision. The next step in the appeal process usually involves submitting written arguments. If the next appeal is unsuccessful, then you will have to appeal to court. It is crucial to have the assistance of an attorney for this.

Reapplying for Benefits
If your application was denied correctly due to excess assets or income, there are steps you can take to spend down your assets or put your income in a trust. Contact an attorney to find out what actions you can take to qualify for benefits. Once you do this, you can then reapply for benefits. Note that when you reapply for benefits, your eligibility date will change to the date of the new application.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.

Should You Prepare a Medicaid Application Yourself?

Navigating the Medicaid application process can be complicated, especially if you are applying for long-term care benefits. Hiring an attorney to help you through the process can be extremely helpful.

Whether you should prepare and file a Medicaid application by yourself or should hire help depends on answers to the following questions:

  • How old is the applicant?
  • How complicated is the applicant’s financial situation?
  • Is the individual applying for community or nursing home benefits?
  • How much time do you have available?
  • How organized are you?

Medicaid is the health care program for individuals who do not have another form of insurance or whose insurance does not cover what they need, such as long-term care. Many people rely on Medicaid for assistance in paying for care at home or in nursing homes.

For people under age 65 and not in need of long-term care, eligibility is based largely on income and the application process is not very complicated. Most people can apply on their own without assistance.

Matters get a bit more complicated for applicants age 65 and above and especially for those of any age who need nursing home or other long-term care coverage. In these cases, availing yourself of the services of an attorney is practically essential.

Medicaid applicants over age 65 are limited to $2,000 in countable assets (in most states). It’s possible to transfer assets over this amount in order to become eligible, but seniors need to be careful in doing so because they may need the funds in the future and if they move to a nursing home, the transfer could make them ineligible for benefits for five years. Professional advice is also crucial because there is a confusing array of different Medicaid programs that may be of assistance in providing home care, each with its own rules.

All of that said, the application process itself is not as complicated for community benefits (care that takes place outside of an institutional setting, such as in the beneficiary’s home). In short, those over 65 may need to consult with an elder law attorney for planning purposes, but they or their families may be able to prepare and submit the Medicaid application themselves.

But submitting an application for nursing home benefits without an attorney’s help is not a good idea. This is because Medicaid officials subject such applications to enhanced scrutiny, requiring up to five years of financial records and documentation of every fact. Any unexplained expense may be treated as a disqualifying transfer of assets, and many planning steps — such as trusts, transfers to family members, and family care agreements — are viewed as suspect unless properly explained. Finally, the process generally takes several months as Medicaid keeps asking questions and demanding further documentation for the answers provided.

Many elder law attorneys offer assistance with Medicaid applications as part of their services. This has several advantages, including expert advice on how best to qualify for benefits as early as possible, experience in dealing with the more difficult eligibility questions that often arise, and a high level of service through a long, grueling process. The one drawback of using an attorney rather than a lay service is that the fee is typically substantially higher. However, given the high cost of nursing homes, if the law firm’s assistance can accelerate eligibility by even one month that will generally cover the fee. In addition, the payments to the attorney are generally with funds that would otherwise be paid to the nursing home — in other words, the funds will have to be spent in any event, whether for nursing home or for legal fees.

Reach out to the MSW team: contact Amy Stratton or Kristen Prull Moonan.