Your Coronavirus Checklist and Estate Planning Guide. Why you need a checklist? Do you have a list of bank accounts and bill so you can pay them while your loved one is in the hospital? Do you have a plan in place to take care of you or your loved ones in a crisis? Who will make decisions?
By David A. Kubikian, Esq., Herzog Law Firm P.C.
Getting old is not easy. Not now, not ever (but especially not now).
Our world, country, state, county and community have been dealing with the ramifications of the COVID-19 virus.
Besides the fact that the virus tends to negatively impact the elderly and immune deficient, the virus has wreaked havoc on the ability for our needy seniors to receive long-term care. This impact has ranged from lockdowns of assisted living and nursing homes to making it much harder for home healthcare aides to reach their clients who so badly need the assistance.
As if this immediate impact of COVID was not bad enough, the economic impact to our society at-large has and will prove more devastating to the long-term care landscape.
Even before COVID, Medicaid, which is the largest payer for long-term care services, had been under attack. In New York in particular, the Governor had created a Medicaid Redesign Team tasked with finding ways to make the Medicaid Program more efficient. Translated, the real question was “where could money be saved?”
After months of suggestions and proposals, last month the New York State legislature passed a budget implementing some of the suggestions made by the redesign team. The result is one that changes the long-term care landscape entirely. Historically, there have been two parts to Medicaid’s long-term care coverage:
For Custodial Medicaid, we have become quite accustomed to the “Five-Year Lookback Period” and the imperative that you need to plan ahead of time for the possibility of a nursing home need later in life. However, for Community Medicaid and the ability to receive long-term care services in your home, apartment, senior living community or even your daughter’s home, there has been no look back period.
Where there is no look-back period, it quite literally means that financial qualification for long-term care help can be achieved in a few days, not five years.
The new New York State budget does away with this last-second planning luxury. Starting October 1, 2020, applications for Medicaid coverage for long-term care assistance at “home” will require 30 months of documentation and implementation of a 2 ½ year look-back.
This change will simultaneously make qualifying for home care services harder while also making the importance of planning ahead that much more so.
The change will also have the impact of increasing the number of Medicaid application filings seeking home care between now and October 1st, as currently there is no look-back period.
In addition to the new look-back, the Community Medicaid changes include making it harder (from a need standpoint) to qualify for services. Unless there are diagnosed cognitive impairments, those seeking Community Medicaid will need help with three activities of daily living whether they be transporting, toileting, bathing, eating, etc…
Such changes during normal times would result in a confusing and stressful time for the long-term care needy, especially between now and October 1st. Such a change during COVID has resulted in something different: a lack of awareness. It is important to contact your elder law attorney to discuss how these changes will impact you and your family.
As many of you know, New York State has a very large deficit, in part due to large expenditures on Medicaid. This year, as part of the budget process, the governor appointed the Medicaid
Redesign Team II to come up with savings for the Medicaid program. The Medicaid Redesign Team, which was put together very quickly, made final recommendations to the Governor about cuts to the Medicaid budget which would result in $2.5 billion in overall savings. Then, in the midst of this pandemic, the majority of these cuts were included in the 2020-2021 budget which the Governor signed on April 3, 2020.
One of these cuts proposes a drastic change in the way in which the Community Medicaid rules are applied. Currently, anyone can apply for Community Medicaid, which provides home care for disabled and elderly individuals, whether or not they have transferred any assets or established a trust in the past few years. This is different than the rules for nursing home Medicaid (also called Chronic Care Medicaid) which have a 5 year lookback for transfer of assets or establishment of a trust. This meant that there was a huge advantage to Community Medicaid, because one could transfer excess assets to a trust and then immediately apply for Community Medicaid, without a lookback period.
The proposed change puts into effect a 2 ½ year lookback for Community Medicaid applications. This means that if you have made any transfers to a trust or other gifts within the past 2 ½ years then you would not be immediately eligible for Community Medicaid. Instead you would have wait out a certain period of time (the “penalty period”) before you become eligible for Medicaid.
The new rule would take effect on October 1, 2020. The good news is that it didn’t become effective sooner, and was delayed because of the coronavirus national crisis, and may possibly be delayed again.
So what does this all mean? It means that now more than ever it is important to plan in advance. You can still become eligible for Community Medicaid if you create and fund your trust 2 ½ years in advance. So if you are thinking about protecting your assets with an Irrevocable Trust, the time to act is now. If you are interested in learning more about the new Medicaid rules, or Irrevocable
Trusts, call our office at 518-465-7581 to make an appointment to speak to one of our attorneys. During this time of social distancing, we are still working and conducting phone or video
By David Kubikian, Esq., Herzog Law Firm P.C.
When did COVID-19 first enter your radar as something that would change our lives? Was it news about South Korea? Italy? Was it when Tom Hanks announced he had contracted the coronavirus? Or when every sport suspended its season? For estate planning attorneys, who by nature contemplate the future more than most, the radar had a blip in early February. It is about then that the casual conversations we normally have with clients prior to the serious business of estate and elder planning began to change. Conversations about their recent trips or future travel plans included some reference to that “virus thing”.
A few weeks of government directives for closures and social distancing later, we are adjusting to pandemic life. Thankfully, food and supplies are available in local grocery stores and supermarkets. The banks and postal service are still running. And of course, the internet still works. Thank goodness for that. Internet means access to digital newspapers. Internet means lots of social media (the good and the bad). And for the world of estate planning and elder law, the internet means that the business of helping clients can continue.
In the age of COVID-19, it is simply not a good idea to be across the table from anyone except your family at dinner. Handshakes are forbidden and a random sneeze or cough in a supermarket will lead to people choosing to skip that aisle all together. But what if you need to create or update an estate plan? What if you lack the basic fundamental must-have documents like a health care proxy or power of attorney? What if you want to start your long term care plan now and don’t want to wait 6 months before getting the “5 year lookback” to start ticking? How do you go about meeting with an attorney and starting the process. Better yet, how, where, when and in front of whom do you sign your documents?
The answer starts with the internet and your phone. In-person consults have turned into phone conferences or better yet, video conferences through applications such as Zoom (one of the only winners from the pandemic). It is not the traditional face to face meeting but our office has still been able to create the important attorney/client connection. Perhaps it even helps focus conversations on the facts that the client presents once the small talk ends. The goal of an estate planning attorney is to not just hear a client’s story, it is to hear the WHOLE story, warts and all. The best legal diagnosis only comes with the entirety of the legal facts. The COVID-19 virus has not and will not prevent that all-too-important initial client meeting or any follow up calls and discussions.
Estate and Elder Law firms remain open to some degree with most operations having the majority of staff working remotely and a skeleton crew working to keep logistics in place. Documents get drafted in the case of estate planning and for elder law, we are still helping our clients get nursing home or home-care coverage from the Medicaid program. Thankfully the internet has made most aspects of estate planning and elder law business as usual. However, eventually clients need to sign their important legal documents and that, in a word, has been challenging.
Whether it is a health care proxy or a will or a trust, witnesses or notaries (and sometimes both) are required under New York law. How does one go about witnessing a document without being in the room? How does a notary legally apply their stamp to a page without having the signor present themselves to the notary? Those are excellent questions which New York State has considered. In recent weeks, they have enacted guidelines for notarizing via video. The guidelines provide a lengthy checklist for notarizations to be valid but nonetheless, your important legal documents can be notarized. Witnessing a will is a bit more tricky but our profession is nothing if not creative. Our firm and many colleagues have implemented video conference procedures for document signings for certain documents as well as signing of critical documents in open air spaces with a well-choreographed procedure to prevent exposure to client or attorney. This includes but is not limited to clients using their own pens, appropriate physical distancing, and a safe post-signing document detoxification (for lack of a better word) and perhaps the most important, a pre-signing phone conference to explain documents to the client so the actual signing is shorter.
Our profession and our firm is committed to continuing to help our clients in their hour, days, weeks or months of need. Thankfully our state has provided guidance that will allow important documents to be signed and notarized. The fact is that the pandemic did not eliminate dementia or incapacity, death or family conflict and because those parts of life (and death) still exist, we need to accommodate our clients as best we can.