Peter Walsh

/Home/Elder Attorneys: Milwaukee WI

ELDER LAW

Elder law concerns issues that confront elderly and disabled individuals with respect to their special needs for medical care and personal assistance. These issues commonly include managing the health care and assets of elderly or disabled individuals, paying for long-term care, and planning and applying for government assistance as well as any number of the estate planning issues more particularly described on the estate planning page of this website.

Attorneys at OCHD have broad professional experience in the areas of taxation, real estate, probate, trust administration, and estate planning as well as elder law. They also have a wealth of experience in non-legal areas of business, in addition to personal and family relationships. Because of this extensive experience, they are uniquely qualified to assist families with a vast array of elder law issues and concerns.

Below is a brief discussion of some of the common aspects involved in the elder law practice.

THE COST OF HIRING AN ATTORNEY:

Quite often, the initial concern for many people confronted with an elder law issue are the costs associated with hiring an attorney. These costs can vary greatly depending upon the particular assistance requested, the level of planning required, and the amount and complexity of an individual’s assets. Obviously, as the planning becomes more extensive, complicated, or urgent, the cost of an attorney becomes more expensive.

For assistance with elder law issues, attorneys at OCHD normally charge an hourly rate which may range from $180 to $250 per hour, depending on the particular issue and the attorney involved. After the initial consultation, an estimate of the range of the attorney’s total fees for the services requested, is provided to the client upon his or her request.

Because of the extraordinary costs associated with most elder law issues, the costs of retaining an attorney can quickly be dwarfed by the potential costs of foregoing such representation. The vast majority of elder law issues are not elective but unavoidable, and often very expensive. For example, no one seeks a guardianship or moves into a nursing home if they have less expensive alternatives. Foregoing the assistance of counsel, in these cases, can significantly increase such expenses.

Many of the government benefits available to elderly and disabled individuals are limited to those with almost no assets. Individuals with even minimal net worth may be required to spend a significant portion, if not all of it, before they can access government assistance. The alternative to seeking legal assistance with an elder law issue is often the complete depletion of assets.

COMMON ELDER LAW ISSUES:

Although the potential legal issues which confront elderly or disabled individuals are vast, some of the more common issues include the following:

* Estate Planning: Elder law issues often coincide with estate planning. Many elder law issues can be avoided by proper estate planning. For example, issues such as guardianships and protective placement can be minimized or avoided by the execution of a health care power of attorney, financial power of attorney, or a revocable trust. Similarly, the issue of providing for a special needs beneficiary can be reduced by a special needs trust. For a discussion of such estate plan documents see the estate planning page of this website.

* Guardianships: A guardianship, is a process in which court appoints a person to be the guardian of an incompetent individual. An individual can be found incompetent because he or she is a minor, or because he or she has some physical or mental disability which impairs the individual’s ability to receive and evaluate information or to make or communicate decisions to such an extent that he or she is unable to meet the essential requirements for his or her physical health and safety. Depending upon the circumstances, a guardian may be vested with varying degrees of authority to manage the income and assets of the incompetent individual and/or to provide for the essential requirements for his or her health and safety. Guardianships are court proceedings which involve extensive procedures and continuing filing requirements. The need for a guardianship can be avoided by the proper execution of a health care power of attorney, financial power of attorney, and/or a revocable trust.

* Protective Placement: Protective placement is often involved with the appointment of a guardian for an elderly individual; it describes the admission, into a “protective placement facility” for residential care and custody, of an incompetent individual, who has not vested such authority in a designated health care agent through a valid health care power of attorney. Depending upon the circumstances, a protective placement facility may include a nursing home, a public medical institution, a center for the developmentally disabled, a foster care service or other home placement. In general, the admission of an incompetent individual into a nursing home requires an order of a court that the individual is so incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or to others.

* Planning for Special Needs Beneficiaries: A special needs beneficiary is a mentally or physically disabled individual who may qualify for government benefits. The planning for special needs beneficiaries generally concerns obtaining available government benefits, such as Supplemental Security Income and/or Medical Assistance (e.g., Medicaid), while simultaneously making private assets available to the beneficiary to supplement the assistance provided by the government. This planning often involves a special needs trust, in which distributions of income and principal to a beneficiary are at the discretion of a trustee, and distributions are intended to supplement, and not to substitute, the care provided by the government. The intent of a special needs trust is to enhance the beneficiary’s quality of life without disqualifying the beneficiary for government benefits.

* Medicare Eligibility: Medicare is a federally subsidized health care insurance program that pays certain costs for hospitalization and other institutionalized care, physician charges, and certain prescription drugs. Medicare, however, provides only limited coverage for long-term care costs. It covers only a portion of the costs of “skilled nursing or rehabilitation care” when certain technical requirements are met, and then for only a limited duration of 100 days. An individual who is 65 or older and who qualifies for social security benefits or whose spouse qualifies for social security benefits is eligible for Medicare. An individual under the age of 65 can also qualify for Medicare eligibility if he or she has received social security disability benefits for at least 25 months or if he or she suffers from certain chronic diseases, such as ALS or end-stage renal disease. Unlike Medicaid, Medicare is an entitlement; it has no income or resource limitations for eligibility.

* Medicaid Eligibility: Medicaid is a federal and state funded program that provides funds for, among other things, skilled and custodial nursing home care. For example, Medicaid may cover the cost of physician services, inpatient and outpatient hospital services, dental services, nursing home services, prescription drug services, mental health services, and physical therapy services. While Medicare covers only skilled care and only for a limited duration, Medicaid covers unlimited skilled care in a nursing home as well as two levels of intermediate care. Unlike Medicare, Medicaid is not an entitlement. There are very strict asset and income limitations to eligibility for Medicaid. The amount of income and assets an individual may have and still qualify for benefits depends upon the type of Medicaid coverage an individual receives and whether or not the individual receiving benefits has a spouse who is not receiving benefits. For example, a single individual seeking nursing home care can have no more than $2,000 of “countable assets” to qualify for Medicaid. “Countable assets” refer to assets the values of which are counted towards the total asset limit of Medicaid. The resource limits for married individuals are not quite so limited. They can take advantage of the spousal impoverishment rules which permit a healthy spouse to retain certain assets.

* Spousal Impoverishment Protections: In the elder law context, “spousal impoverishment protections” refers to certain asset and income protections provided to a spouse remaining at home, when his or her spouse is otherwise eligible for Medicaid. Essentially, while a single person must spend his or her countable assets down to $2,000, the spousal impoverishment protections permit a spouse remaining at home to retain a significant share of the couple’s marital assets, regardless of title, while allowing the other spouse to qualify for Medicaid. Specifically, spousal impoverishment rules permit a couple with total countable assets of $219,120 or more to retain up to $111,560 of countable assets and still qualify for Medicaid; while spouses with total countable assets of between $50,001 to $100,000 may retain up to $52,000. Spousal impoverishment rules also permit an institutionalized spouse to transfer monthly income of up to $2,739, depending on the circumstances, to the spouse remaining at home. Certain technical rules must be followed in order to take advantage of these protections.

* Aging and Disability Resource Centers: ADRCs are an integral part of the Wisconsin Medicaid system. These centers provide the public with information related to the issues of the aging and the elderly, adults with physical or developmental disabilities, and mental health concerns. They are staffed with knowledgeable individuals who can help an individual sort out his or her options and make informed decisions regarding, not only the public benefits that may be available, but all of the private and public programs and services available throughout the area. More information on ADRCs, including their locations throughout the State of Wisconsin, can be found at Wisconsin Department of Health Services.

* Divestments: A major component of elder law is the planning for the transmission of family assets to younger generations without the disqualification of the older generation for Medicaid benefits. In general, an individual cannot become qualified for Medicaid by giving away assets. To prevent individuals from qualifying for Medicaid by giving away their assets, Medicaid laws impose penalties for the divestment of assets. A “divestment” is the transfer of assets in exchange for nothing or an insufficient amount of assets or services during the “look back period.” A divestment can be made, among other ways, by making a gift of cash or property, by paying a relative too much for services rendered, by foregoing an inheritance, or by not exercising a right to an asset. The normal penalty for a divestment during the look back period is the imposition of a period of time during which the divesting individual is ineligible for certain Medicaid benefits, including nursing home care and home and certain community-based care benefits. This period of ineligibility is referred to as the “ineligibility period.” Because of these divestment penalties, care must be taken to transfer or shelter assets in a manner that does not disqualify the transferor for Medicaid benefits.

* Look Back Period: The look back period refers to the period of time immediately preceding an individual’s application for Medicaid during which the individual’s finances are examined to determine if he or she has made a “divestment.” Prior to 2009, the look back period varied in Wisconsin and depended on the recipient of the divestment (e.g., the recipient of the gift). For a gift to an individual, the look back period was 36 months, while for a gift to a trust, the look back period was 60 months. In 2009, Wisconsin changed the look back period to 60 months for all gifts made after December 31, 2008. Accordingly, individuals applying for Medicaid in Wisconsin in 2009 and thereafter, should be prepared to disclose gifts made within 5 years prior to their application for Medicaid. Therefore, elderly individuals should exercise care before making a substantial gift if they contemplate the need for institutional Medicaid benefits in the following 5 years.

* Ineligibility Period: An ineligibility period is the duration of time in which an individual is disqualified for certain Medicaid benefits because he or she made a divestment of assets within the “look back period.” Specifically, during an ineligibility period, the effected individual may be disqualified from Medicaid assistance for the cost of nursing home care, home health and personal care services, private duty nursing services, and certain other home and community-based services. During the ineligibility period, however, the effected individual may qualify for Medicaid card services, such as the cost of physician services, prescription drugs and certain therapies. The number of days of an “ineligibility period” is determined by dividing the value of the assets divested by the statewide average daily cost to a private pay patient in a nursing home (e.g., $205.78 as of July 1, 2008); the quotient is the number of days of the ineligibility period. Recently enacted legislation has changed the starting date of an ineligibility period from the month in which the divestment was made to the date in which the individual is eligible for and would otherwise be qualified to receive Medicaid except for the divestment. Because of this change, a divestment in year 1 could cause an ineligibility period to begin in year 5 when the effected individual is in a nursing home and without money to continue paying.

* Long-Term Care Insurance: Long-Term Care Insurance is an option for privately paying for the costs of long-term care, which includes the cost of intermediate or skilled nursing care provided at a nursing home, an assisted living facility, or in the home. This insurance can be used to shelter other assets of the insured from the high costs of long-term care or to increase an individual’s ability to receive in home care. Before benefits from a long-term care policy can be paid the insured must suffer from at least one of the following: a medical necessity requiring long-term care services (e.g., a stroke which leaves the individual partially paralyzed); cognitive impairments that necessitate supervisions (e.g., Alzheimer’s dementia); or an inability to perform one or more of the “activities of daily living,” such as the ability to dress oneself, to feed oneself, or to bathe or shower, get in and out of bed, or use the toilet without assistance. Long-term care policies normally do not cover all of the costs of long-term care. They generally cover a fixed, daily, benefit rate expressed as either a fixed per-diem dollar benefit for the insured (e.g., $125 a day that the insured qualifies for benefits) or a percentage of the incurred daily rate. Benefit payments may be increased over time if inflation protection is purchased. Long-term care policies may be expensive, and they can involve many complicated variations in coverage. There are tax benefits to long-term care policies such as limited deductions for premiums and exemption for benefits. Because of the expense and complications of long-term care insurance, such policies should not be purchased without the assistance of a trusted professional and a review of the history of the company underwriting the policy.

* Life Insurance: Life insurance may offer a less expensive alternative to long-term care insurance. While long-term care insurance provides funds to cover certain costs of long-term care and thus protects a person’s assets from a Medicaid spend down, life insurance can be purchased to replace assets which were spent on a person’s long term care. For life insurance to provide this replacement benefit, however, the form and ownership of the policy needs to be structured to remove the policy from the “countable assets” of the insured person.

Peter Walsh
O'Neil, Cannon, Hollman, DeJong SC
111 E Wisconsin Ave #1400
Milwaukee WI 53202-4870
Tel: 414 276-5000
Fax: 414 276-6581

Practice Areas
* Tax, Estate & Succession Planning

Peter assists clients with estate and business planning, trust and probate administration, taxation and elder law issues. Peter has also litigated tax and non-tax issues for clients in Federal and State courts. Peter has a masters of law degree in taxation, and he is licensed to practice law in Wisconsin, Illinois and Florida.

Peter Assists Clients With

* Estate Planning: Preparing and implementing estate plan documents, including Revocable Living Trusts, Marital Property Agreements, Pour-Over Wills, Living Wills, Medical Powers of Attorney, Durable Powers of Attorney, etc.

* Tax and Succession Planning: Structuring multi-generational asset and business transfers for affluent individuals and business owners to minimize estate and gift taxation and to maximize creditor protection

* Elder Law: Petitioning for guardianships, planning for eligibility for Title XIX, Medicaid, Family Care and Supplemental Security Income and preserving assets for disabled individuals through special needs trusts

* Probate and Trust Administration: Administering estates and trusts, including representation in probate proceedings, preparation of estate tax returns and fiduciary income tax returns for estates and trusts, defending and prosecuting will contests and creditor claims

* Tax Controversies: Defending taxpayers’ rights and positions in tax audits, litigation and collections actions involving state and federal taxing authorities

* Business Matters: Organizing business entities, such as corporations, partnerships and limited liability companies, and advising them as to tax and non-tax related legal issues

* Tax Exempt Organizations: Organizing and representing tax exempt organizations, including applying for tax-exempt status and complying with ongoing Federal and State requirements

* Real Estate: Advising as to the purchase and sale of real property, including the preparation of offers to purchase and all other closing documents