When a loved one requires Medicaid there are many defenses that can be used to protect your family’s assets in given situations. Hiring a qualified Elder Law attorney is paramount to ensure you and your family receive the care they need while protecting assets.

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A U.S. district court rules that a nursing home can proceed with its case against the sons of a resident who transferred the resident’s funds to themselves because the fraudulent transfer claim survived the resident’s death. Kindred Nursing Centers East, LLC v. Estate of Barbara Nyce (U.S. Dist. Ct., D. Vt., No. 5:16-cv-73, June 21, 2016).

Roger and Kinsley Nyce were agents under their mother’s power of attorney. The Nyces’ mother, Barbara Nyce, entered a nursing home and signed an admission agreement in which she agreed to pay the nursing home or apply for Medicaid. Ms. Nyce filed for Medicaid, but the application was denied because the Nyces withdrew money from Ms. Nyce’s bank accounts to pay themselves. Ms. Nyce also transferred her property to her sons. Ms. Nyce died owing the nursing home $137,586.92.

After Ms. Nyce died, the nursing home sued her estate as well as the Nyces for fraudulent transfer. The estate cross-claimed against the Nyces, alleging breach of fiduciary duty and conversion. The case was removed to federal court, and the Nyces moved to dismiss the claims. The Nyces argued that the estate couldn’t sue for fraudulent transfer after Ms. Nyce died and that the estate’s cross claim fits into the probate exception to federal jurisdiction.

The United States District Court, District of Vermont, denies the motion to dismiss. The court holds that the fraudulent transfer claim survived Ms. Nyce’s death because state law does not require that there be a pending claim in order for an action to survive. The court further holds that the probate exception cannot be used to dismiss widely recognized torts, such as breach of fiduciary duty.

You can avoid these situations; if you’re applying for Medicaid make sure that you have qualified counsel to help you through your Medicaid application process, an experienced Medicaid Attorney can help you make sure your these circumstances do not enter your life.  We are here to help.  Set up a free consultation with our Medicaid Attorneys, and we will show you how you have the ability to safely protect your assets while receiving the Medicaid care that you require.

*For the full text of this court decision Click Here 

Article posted by:

Aaron E. Connor, Esq. 

Partner atPierro, Connor & Associates, LLC

For more information on how we can help, or to get in touch with Aaron E. Connor, Esq. please contact Adam Jones, MBA, Director of Client Development at Pierro, Connor & Associates, LLC: 

Tel: 866-951-PLAN   

Email: [email protected]

Elder abuse has been called the silent epidemic, but not all cases are what they seem. When a 90 year old gentleman (Frank) gifted $100,000 to his companion of 25 years (Marilyn), he intended to provide for her based on their loving relationship, as his estate documents left everything to his children. When he was later diagnosed with dementia, and his health failed, Marilyn took care of him 24/7, including dressing, bathing and feeding him. Even when he became verbally abusive, she cared for him because she “loved him and because he needed me, and I needed him even as he was. I was happy to be with him.” You see Frank’s family moved next door to Marilyn’s in 1956, each with 3 children, with Marilyn’s husband having died in 1959, and Frank’s wife in 1983. After a year of friendship they became more than friends, and at the ages of 69 and 61 Frank and Marilyn began a romantic relationship that lasted 25 years, with Frank moving into Marilyn’s home in 1985 and selling his own house.

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In the case Clark v. Rameker the United States Supreme Court handed down a landmark, unanimous decision that held that inherited IRAs are not “retirement funds.”

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With the passage of the New York State Budget for 2014-2015 substantive changes were made to the New York State Transfer Tax System (Estate, Gift & Generation Skipping Transfer Taxes). Under prior law, $1,000,000 was excluded from tax under the New York Exemption. Effective April 1, 2014, the new legislation imposes a tax on a decedent’s entire taxable estate, but allows a credit, known as the “Applicable Credit Amount”, against the tax imposed. For decedent’s dying between April 1, 2014 and March 31, 2015, the New York exemption (called the “Basic Exclusion Amount”) is $2,062,500. 

The new State Exclusion Amount is phased in over the next five years and will ultimately, as of January 1, 2019, approximate the Federal Applicable Exclusion Amount. As noted above, the new legislation features a generous credit which essentially eliminates the New York Estate Tax for estates which do not exceed the State Basic Exclusion Amount. However, the Applicable Credit Amount is rapidly phased out for decedents with taxable estates in excess of the new State Basic Exclusion Amount.

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Healthcare in America is a scandal.  The battles fought over the Affordable Care Act have dominated our political landscape, stoking the fires of both the left and the right, with the media that panders to each adding a daily dose of gasoline. A recent article by Michael Fischer in the April 17, 2014 edition of ThinkAdvisor entitled “Retiree Social Security Benefits to be Wiped Out by Healthcare Costs” portends a looming crisis of epic proportions. The article focuses on a new retirement Healthcare Cost Index, created by HealthView Services, which “shows that middle-class Americans are approaching the day when they will have to use their entire Social Security benefit to pay for their healthcare.”  As disastrous as the index appears to be, consider this shocking fact: it does not include Long Term Care costs. Our prior blog posts covered 2014 Medicaid Changes in New York (including the rollout of Managed Long-Term Care) and the Current Issues in LTC Insurance. This post will highlight the current efforts in Washington and Albany to craft policies and programs that can serve the needs of our burgeoning population of seniors and people with disabilities, while preserving Medicare, Medicaid, Social Security and the public fisc.

Long-Term Care, for decades the forgotten stepchild of healthcare, has gained significant attention from policymakers of late, as the 78 million Baby Boom generation is now between the ages of 50 and 68 years.  Many of the boomers have witnessed the stress on their families and the financial ruin faced by their parents who have failed to prepare for the ruinous expenses of Long-Term Care, and it appears that they are now in a position to do something about it.  An author who follows aging issues for Forbes magazine, Howard Gleckman, published an article on April 9, 2014, entitled “Finally, Modest Progress Toward Long-Term Care Financing Reform”.  
For the past 19 years, our annual Elder Law Forum has chronicled the policies and programs designed to cover Long-Term Care, and the woeful inadequacy of existing systems to accommodate the aging population.  We discussed a program enacted through the Affordable Care Act called the “Class Act”, which as predicted when we first saw the legislation has failed miserably and was repealed in January of 2013.  The President then appointed a Long-Term Care Commission, which issued a report that highlighted many of the problems, but offered few solutions.  Since that time, as Gleckman reports, “a wide range of private interests including Long-Term Care providers, consumer groups, the insurance industry, and policy analysts seems to be moving toward a broad consensus on how to address this important and difficult issue.”  He states that “the solution is likely to include some mix of private insurance and a public safety net beyond Medicaid-the current government program that is the single biggest payer of Long-Term Care services and support.”

We will once again be exploring the concept of a public-private solution to Long-Term Care financing at the 19th Annual Elder Law Forum, and our breakout session led by Gail Holubinka will be dedicated to reviewing reports by LeadingAge (Dan Heim of LeadingAge New York will be one of our presenters), the Bipartisan Policy Center (a Washington based group led by Sen. Bill Frist, Tom Daschle and former Health and Human Services Secretary Tommy Thompson), the Society of Actuaries and others. Panelists Bill Schroth, Brian Johnson and I will present the highlights of each position, and we will then have an opportunity for open dialogue on how to craft an appropriate solution for Long-Term Care. Don’t miss this unique opportunity to immerse yourself in the turbulent seas of aging in New York State!

By: Louis W. Pierro, Esq.

Attorneys who practice in the area of personal injury litigation are familiar with the 2006 decision in Arkansas Department of Human Services v. Ahlborn which holds that under the Medicaid anti-lien statute a Medicaid agency is only entitled to recover a portion of a personal injury judgment or settlement that is “designated as payments for medical care”. Recently, the United States Supreme Court reaffirmed that holding in the North Carolina case of WOS v. E.M.A by rejecting a North Carolina statute that provided for a statutory presumption that 1/3 of a tort recovery was the amount due under the state’s Medicaid subrogation claim because of the provisions of the anti-lien statute.

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The New York State Bar Association’s Elder Law Section’s informational pamphlet “Why Your Medicaid Application Should be Entrusted to an Elder Law Attorney” is made available to you to assist you in understanding the benefits of utilizing a qualified Elder Law Attorney for your Long-Term Care Planning and Medicaid needs.

In New York, it is not required that an attorney assist with the Medicaid application. In fact, you can prepare the application yourself. There are many entities, agencies, or divisions within hospitals and nursing homes which may offer to prepare and submit the application for you for free or for a reduced fee. However, you must exercise great caution when accepting that help, as those entities and agencies are not obligated to advise you of your rights and are not permitted to give legal advice or implement legal strategies. Using these services might expose you and your family to risk.

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Radical Changes Hit Medicaid Upstate; Affordable Care Act Altering the Way Care is Provided; Medicare Budget Woes Cause Reductions in Coverage for Skilled Care; Long-Term Care Insurance Policies Undergo Market Changes; The Federal LTC Commission Swings and Misses; More.

If I told you all those changes have taken place over the last 12 years you would say that’s a lot, but the fact that they have taken place over the last 12 months is astounding. As I sat to write the introduction to our 19th Annual Elder Law Forum, I was stumped – not because I had too little to work with, but because I had too much. So I decided to take on the issues one at a time, in a series to update you on the state of Long-Term Care in New York State, and its impact on consumers, providers, insurers, taxpayers, government, workers and even attorneys.

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