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Frequently Asked Questions

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Listed below are some questions that we receive on a regular basis.

If you do not see your question below, don’t hesitate to contact us!

General


What makes Stinson Law Firm different from other elder law attorneys?

First and foremost, we value our relationships with our clients. Having cared for our own family members, we can relate to the challenges our clients face, and we are prepared to be part of your solution.

Backed by our years of experience offering compassionate legal advice, we break down the complex legalities and review them in easy-to-understand language and concepts. We then prepare a customized plan tailored to your needs and goals. Finally, we review the benefits you will receive with our planning and compare it to the cost of obtaining the benefit so that you can make an informed decision on whether to proceed. We never want you to pay for something that is more than what you need or costs more than any benefit you will receive.

What does it mean to be a “Certified Elder Law Attorney”?

Jeff Stinson is Certified as an Elder Law Attorney by the National Elder Law Foundation. To receive this distinction an attorney must handle a particular number of elder law related cases, participate regularly in continuing legal education courses in elder law, be recommended by his peers through a peer review process, and take an examination.

Only a small number of attorneys in the State of Indiana who practice elder law hold this distinction.

What is the significance of the peacock in the Stinson Law Firm logo?

When Jeff started his own firm, he was brainstorming for what he wanted he and his firm to be known. The first word that popped into his head was “integrity.” Being a Freemason and one who appreciates symbols, he decided to make the symbol of integrity the symbol of his brand. Thus, the peacock — a universal symbol of integrity.

What is elder law? What is an elder law attorney?

Elder law attorneys are lawyers who specialize in helping seniors with a variety of legal issues. The specialty of “elder law" evolved in the 1980s as it became increasingly clear that the complicated legal issues confronting seniors – such as qualifying for Medicaid coverage of nursing home care — were beyond the expertise of general-practice attorneys.

Elder law or elder care attorneys typically help families:

  • plan for long-term care coverage and protect assets through estate planning, long term care insurance, Medicaid benefits, and Department of Veterans Affairs benefits;
  • apply for public benefits coverage when the time comes;
  • plan and administer an estate; and
  • represent guardians.

Unlike many other areas of the law, elder law is defined by the needs of the client rather than by a particular field of law. Elder law attorneys are also aware that their clients’ needs often extend beyond basic legal services. For this reason, these attorneys are linked to a network of professionals in their community who serve the senior population.

But anyone can call themselves an “elder law" attorney, and today in the U.S. some 10,000 lawyers claim to practice “elder" or “elder care law." How do you know who is truly qualified? One way is to look to see if the attorney is Certified as an Elder Law Attorney by the National Elder Law Foundation.

What is special needs law?

Like elder law, special needs law is defined by the needs of the client. A special needs lawyer will help families plan to care for their special needs child when they are no longer able. A special needs lawyer may also assist with establishing or maintaining public benefits for a disabled individual. This often includes the establishment and use of a special needs trust.

Your Initial Consultation


What typically happens before and during an initial consultation with Stinson Law?

Our initial consultation is a process designed to identify goals and obtain information that concludes with a proposed plan unique to you and developed to your individual specifications. Consider the following hypothetical situation.

Carla Client has been told that she can receive a pension through the Department of Veterans Affairs to assist with the cost of her long-term care expenses. She contacted Stinson Law Firm for assistance. During her call, the intake paralegal obtains some identifying information and a summary of her desired goal.

The intake paralegal then sends a copy of the firm’s Legal Planning Questionnaire for Carla to complete. Carla notes that the firm has requested she return the questionnaire prior to her scheduled appointment; so, she arranges to fax it back to the intake paralegal a few days prior to her appointment date. She also notes the request to bring current financial statements and other documents to the initial consultation and begins to gather them for her meeting.

Upon receiving her Legal Planning Questionnaire, the attorney reviews the client’s identified goals and analyzes the client’s information with these goals in mind. He makes note of Carla’s desire to obtain VA benefits and identifies barriers to obtain the benefits based on the information provided. The attorney also discovers an issue with Carla’s real estate as it pertains to her deceased husband and makes a note to discuss this with Carla. He also identifies that Carla is in a Medicaid certified facility and makes note to discuss this with Carla as well.

In their meeting, the attorney restates Carla’s goal of obtaining VA benefits. He spends some time learning about Carla’s family and reviews the financial and other documents she brought to the meeting to verify that he has a clear picture of her financial situation. He then reviews elements of VA eligibility, identifies barriers to achieving VA eligibility, and discusses solutions to overcome barriers. He also tells Carla that because she is in a Medicaid certified facility, she could also get Medicaid help for her long-term care costs. He reviews Medicaid eligibility rules with her, identifies barriers to Medicaid, and proposes solutions to overcome those barriers. He then conducts a cost/benefit analysis with Carla of the two programs and Carla discovers that the benefit provided by Medicaid, when compared to the costs of obtaining it, provides more value than the VA benefit. The attorney brings the real estate issue to Carla’s attention and also recommends that she update her Power of Attorney as it lacks authority for others to complete Medicaid planning on her behalf.

With the attorney’s assistance, Carla is able to make an informed decision about the most valuable benefit to assist her. At the conclusion of the meeting, Carla hires Stinson Law Firm to execute the unique plan that the attorney developed and reviewed with her..

What can I expect out of the initial consultation?

Our initial consultation is a process. We begin by obtaining a summary of your goals and issues. We then ask that you provide information about yourself, your family, your assets, and your income by completing our Legal Planning Questionnaire. We use this data to begin developing solutions to the goals and issues you identify as well as any new issues we discover. We request that you return your Legal Planning Questionnaire prior to your meeting so that we can spend some time reflecting upon your information.

The attorney will spend up to two hours with you in the scheduled appointment. During the appointment, we will conduct our comprehensive review by doing the following.

  • Reviewing your goals
  • Reviewing issues you have identified and any issues we have identified in our pre-meeting review
  • Educating you on the law that applies to your situation
  • Providing a menu of solutions that meet your goals
  • Guiding you through a cost benefit analysis to assist you in choosing the best solution that meets your needs in the most cost effective way possible.

We typically conclude our meeting by delivering our recommended plan to meet your goals and needs as well as action steps to complete that plan.

Do you charge for the initial consultation?

Yes. Our first appointment together is more than a “meet and greet.” It is part of our initial consultation process. Our fee for the initial consultation process is $395 and includes the pre-meeting review and a meeting lasting up to two hours.

What information do I need for the initial consultation?

When you schedule an appointment, our intake paralegal will send you our Legal Planning Questionnaire for you to complete. With the questionnaire, we will include a list of information for you to bring to the consultation. We ask that you return the questionnaire to us prior to your scheduled appointment.

For the appointment, we ask that you bring the most current statements and other documents featured on the list attached to the questionnaire.

Why does Stinson Law Firm want the questionnaire prior to my appointment?

Because our initial consultation is a process, we use this information to prepare for our meeting with you. We use this data to begin to develop solutions to the goals and issues you identify as well as pinpoint issues about which you may be unaware. We spend time digesting this information prior to our meeting with you, which is why we request that you return the Legal Planning Questionnaire to us prior to your meeting. Returning the questionnaire ahead of your appointment allows us to deliberate on the issues and potential solutions available to you before your meeting. It also allows us to get directly to the heart of the issue that brought you to us rather than expending a good deal of your meeting with us reviewing data.

Why do you need all this information?

Like a good doctor, we need to gather as much information as possible to properly “diagnosis” your legal issues and propose legal “remedies.” While interviewing you to get your assessment of your legal issue is an important part of this process, we also need accompanying “diagnostics” to determine the correct diagnosis of your problem. Not only will this information enable us to ensure that your “legal planning diagnosis” will meet your needs, it also allows us to identify other issues of which you are unaware or unfamiliar.

Just like the good doctor who relies on medical tests, we rely on this information to provide you a proper diagnosis. The more detail you provide us, the better enabled we will be to develop the best solution for you.

Do you make home visits?

Yes, when necessary. Because the travel involved with home visits requires more time than an in-office consultation, we do charge a fee for our travel for the home visit.

Fees


How much is this going to cost?

We wish we could answer this question in your first call to us, however, we do not know until we complete the initial consultation process. Every client’s circumstance is unique and we want to craft a plan that meets your individual needs. Quoting a price prior to your assessment can set an unrealistic expectation. If we conclude through the initial consultation that your case is more complex than anticipated through our brief telephone exchange, you may be given a price much lower than the project you require. Alternatively, we do not want to quote a price that is more than what you need.

Also know that, in a lawyer’s services, there are differences beyond price. A lawyer who concentrates in one area of the law with years of experience is more likely to have greater efficiency and skill in that area than a lawyer with multiple practice areas and less experience. The experienced lawyer will likely charge for this enhanced work and knowledge. Shopping for attorneys based solely on price is like choosing a doctor for a medical procedure based on price alone. You may find a doctor who will perform a medical procedure at a lower cost than another doctor. However, most of us will agree that the doctor with the most experience and best reputation is the best physician for the procedure.

With that said, many people believe that an attorney’s fees will be astronomical. While it is difficult for us to quote a fee prior to our assessment, we can say that for most cases our clients see a real, dollars-and-cents value to our services. Often the costs are equivalent to as little as one month of long-term care savings. In other words, our fee is a small fraction of what we can save your family.

Why do you charge for the initial consultation?

Our initial consultation is an in-depth process with a clear goal: to have a recommended plan at its conclusion. As a result, we invest quite a bit of time to accomplish this goal, before and during the meeting. We do apply the consultation fee toward the price of most projects if you retain us. So, in most instances, the consultation fee is a first payment toward your project.

How do you charge for your services?

For most of our cases, we charge a flat fee. We know that clients prefer a flat fee arrangement as it provides certainty about the cost of the final product. We also want our clients to ask questions as often as they need without worrying about a bill accruing.

What forms of payment do you accept?

We accept cash, check, Visa or MasterCard.

Estate Planning


What is estate planning? Do I really need it?

Estate planning is not just for the wealthy. An estate plan allows you to choose who will manage your affairs if you become incapacitated. It also allows you to control how your property is distributed upon your death.

Without a comprehensive estate plan, “default” provisions under Indiana law dictate who will manage your affairs and how your affairs will be distributed upon your death.

In addition, a comprehensive estate plan can ensure that your family members who are at risk are protected long after your passing.

What documents should an estate plan include?

At the very least, an estate plan should include a power of attorney, health care advance directive, and Last Will and Testament. A trust, especially when a beneficiary is at risk or when an individual desires to protect assets from the costs of long-term care, may also be necessary.

What is a Power of Attorney?

A power of attorney is a document where an individual appoints an agent (an individual or institution) to handle financial affairs on behalf of that individual. The authority given to the agent can be broad or limited based upon the desire of the individual.

What is a health care advance directive?

A health care advance directive is a spoken or written instruction about future medical care and treatment. An advance directive may name a person who can assist with executing health care instructions and make health care decisions when one cannot make such decisions.

What is a trust?

A simple illustration is to compare a trust to a bucket. The bucket can hold a variety of assets -bank accounts, real estate, stocks, bonds, et cetera – but the individual components are still contained within the bucket.

What is a Last Will and Testament?

A Last Will and Testament is a legal document that allows a person to dictate who will receive probate assets upon their passing.

What is the difference between “probate” and “non-probate” assets?

A probate asset is an asset that is in an individual’s sole name and has no beneficiary designation.

A non-probate asset is an asset that is not a probate asset. Property held in joint name or payable on death to a beneficiary are examples of non-probate assets.

Will my estate be subject to death tax?

Fewer people today are subject to the death taxes than once before. The first $5.49 million* in tax is exempt from federal estate taxes. The estate tax is “portable” between spouses which means a surviving spouse can use the unused portion of the first spouse’s exemption thereby passing up to $10.98 million* tax free.

The Indiana Inheritance tax was abolished on December 31, 2012, alieving many modest estates of a once required tax burden.

This typically makes long-term care costs the expense to most likely place a person’s savings in jeopardy. Contact us today for a consultation to determine how to best protect your assets from long-term care.

* As of 2017

What is a Credit Shelter or A/B Trust?

A Credit Shelter or A/B Trust (aka bypass trust) was once a popular estate-planning tool to avoid or reduce the payment of death taxes. It was designed to prevent the estate of the surviving spouse from having to pay estate tax.  With the significant increase in the estate tax exemption ($5.49 million in 2017) and portability of each spouse’s exemption, fewer persons need this planning. However, if you have a plan containing one of these trusts and it has not been reviewed for some time, you should contact us to determine if the complexity of such an arrangement is still necessary.

What is long-term care insurance?

Long-term care insurance is an insurance product that helps pay for the cost of long-term care. A policy can pay for a variety of care, including home health care, assisted living care, and nursing home care.

What is a long-term care insurance partnership plan?

A “Partnership” long-term care insurance policy is a policy created by partnering the State’s Medicaid program with private long-term care insurance policies. These policies contain required consumer protections along with a State-added benefit called Medicaid Asset Protection.

Two types of asset protection are available: Total Asset Protection and Dollar for Dollar protection. (Dollar for Dollar policies are portable to most states.)

I only need a Last Will and Testament, right?

No. While a Last Will and Testament will determine how your probate assets are distributed at death, the Will is just a small cog in your estate plan. A Power of Attorney and health care advance directive is essential to ensure your chosen individual has the authority to manage finances and arrange health care for you if you become incapacitated. Without these key documents, your loved ones will be forced to proceed with an expensive and time-consuming process to obtain a guardianship through a Court.

Furthermore, a comprehensive review of your plan is essential to meeting your goals. Ensuring that beneficiaries of life insurance, IRAs, or other accounts match the beneficiaries of the Will is necessary to ensure the right beneficiaries receive the correct inheritance.

Can’t I just purchase estate plan documents online or through an office supply store?

We are proud of our documents. Years of study and improvements have made them what they are. However, our value to you is not in the documents themselves, rather our counsel in the need for particular documents and how to use those documents.

Purchasing documents through an online system may be a cheaper alternative, but only an attorney can ensure that those documents are sufficient and comprehensive enough to meet your goals. We review your goals with you, help you identify the appropriate individuals who will respond for you when needed, ensure that those individuals have the legal authority necessary to meet your goals through the appropriate legal documentation, and ensure that each of these estate plan “pieces” connect. We also review the pitfalls of choosing one document or alternative over another. Finally, we ensure that each document is executed according to Indiana law. We often find a lack of proper formality in the execution of “do-it-yourself” documents that invalidates the document.

Medicaid


Why should I hire Stinson Law Firm to file the Medicaid application rather than doing it myself?

First and foremost, we take the bureaucratic burden off of your hands. Our firm ensures that the information requested by the Medicaid agency during the application process is appropriate, that the decision is timely, and that the result is correct. Error rates in the Medicaid agency are high. We identify errors in Medicaid notices of action that many individuals are unaware of and advocate on your behalf to have them corrected expeditiously.

What is Medicaid?

Medicaid is a program that can assist with care for people in nursing homes and, increasingly, community and in-home alternatives when the person would otherwise require the level of care provided by a nursing home.

Nearly 2/3 of Indiana’s nursing home residents are Medicaid recipients. To be eligible for Medicaid coverage, you must meet the program’s strict income and asset limitations.

What is the asset threshold for a Medicaid applicant in seek of long-term care benefits?

In order to qualify for benefits, an individual must meet a certain asset limitation. For a single individual, his or her countable resources (assets) cannot exceed $2,000.00 at the first of the month. If married, the community spouse can have up to half of the marital assets, subject to certain monetary limitations, unless increased by a judge’s order.

What can a Medicaid applicant do to qualify for benefits if he or she has assets in excess of the asset threshold?

Certain assets are excluded for purposes of determining Medicaid eligibility. So, often we can counsel and assist you in converting an asset that counts toward the Medicaid resource limit into one that is exempt under the program. As a result, modest savings are protected for the spouse living at home or to supplement the care of the single applicant.

Alternatively, many individuals seek to divest themselves of assets (make gifts) to get their countable assets below the resource limit. Because many types of transactions will be penalized, you should use caution and seek legal counsel. When Medicaid planning through transfers, we can work with you to protect a good portion of your savings while using the remainder to cover the costs of care through the penalty period.

How much income can a Medicaid applicant of long-term care benefits have?

The income standard for Indiana’s Medicaid qualification for a person in a nursing home or in equivalent Home- and Community-based Services under a Medicaid Waiver is $2,205 (as of 2017).

What can a Medicaid applicant do if he or she has too much income to qualify for benefits?

Applicants with income below the income standard are eligible for Medicaid benefits. Individuals with income above the income standard will require a special trust (called a Qualified Income Trust or Miller Trust) to qualify. We can assist you in establishing this trust and counsel you on its proper use.

How much income can a Medicaid recipient retain?

Once a recipient is below the income standard, Medicaid will calculate the recipient’s liability. This is the amount the applicant is responsible for paying for his or her care from his or her income. This is similar to a co-pay under traditional insurance. The liability is calculated by adding the applicant’s income from all sources, then deducting health insurance premiums and a personal needs allowance. There are also a few other types of deductions that apply in some circumstances.

How much is the personal needs allowance?

For an applicant living in a nursing facility, it is $52 per month. For an applicant in need of long-term care assistance outside a nursing facility, it is $2,205 per month (as of 2017).

My loved one (parent, spouse, relative, etc.) is already in need of long-term care. Is it too late to plan for Medicaid and protect assets?

It is never too late to plan for Medicaid, even if your loved one has an immediate need for long-term care. While we encourage clients to plan early and update often, when it comes to their long-term care, it is never too late to plan. In fact, most of our clients come to us in crisis with an urgent need for care, seeking means to protect assets.

We can always implement a Medicaid plan whether you plan ahead or are in crisis. Contact us today to get started.

What is the difference between Medicaid and Medicare?

Although their names are confusingly alike, Medicaid and Medicare are quite different programs. Both programs provide health coverage, but Medicare is an “entitlement” program, meaning that everyone who reaches age 65 and is entitled to receive Social Security benefits also receives Medicare. (Medicare also covers people of any age who are permanently disabled or who have end-stage renal disease.) Medicaid, on the other hand, is a public assistance program that helps pay medical costs for individuals with limited income and assets. To be eligible for Medicaid coverage, you must meet the program’s strict income and asset guidelines. Also, unlike Medicare, which is totally federal, Medicaid is a joint state-federal program.

Won’t Medicare pay for my long-term care?

Medicare, for the most part, does not.  Medicare Part A covers only up to 100 days of care in a “skilled nursing” facility per spell of illness. The care in the skilled nursing facility must follow a stay of at least three days in a hospital. And for days 21 through 100, you must pay a copayment.

In addition, the definition of “skilled nursing” and the other conditions for obtaining this coverage are quite stringent, meaning that few nursing home residents receive the full 100 days of coverage.

As a result, Medicare pays for less than a quarter of long-term care costs in the U.S.

How does Medicaid work with my Medicare and private insurance?

Medicaid is always the payor of last resort. So, any medical expense will be billed to Medicare and private insurance first.

What services does Medicaid cover?

While most of our clients apply for Medicaid seeking long-term care, Medicaid covers a broad range of services.   This includes physician care, specialized treatments, medical supplies and the reduction or elimination of drug costs.

Will Medicaid provide care at home or in other non-institutional settings?

Medicaid originally covered people needing assistance with long-term care in nursing homes. However, Medicaid covered alternatives to nursing home care are increasing and include home care, assisted living care, adult day care, and more.

What is meant by the “look-back” period and transfer penalty for Medicaid benefits?

In order to be eligible for Medicaid, you cannot have recently transferred assets. The period of review is the sixty months prior to the application (the “look back” period). Congress does not want you to move into a nursing home on Monday, give all your money to your children (or whomever) on Tuesday, and qualify for Medicaid on Wednesday. So it has imposed a penalty on people who transfer assets without receiving fair value in return.

This penalty is a period of time during which the person transferring the assets will be ineligible for Medicaid. The penalty period is determined by dividing the amount transferred by what Medicaid determines to be the average private pay cost of a nursing home.

Are all transfers penalized?

The spouse who is not in need of services (the “Community Spouse”) will be allowed to keep a portion of the countable marital assets. The remaining assets will need to be sheltered (typically in the name of the Community Spouse). For more information on the Medicaid resource limit and asset protection, feel free to contact us.

I need Medicaid for my spouse. Why is the agency (and Stinson Law Firm) asking about my assets? If everything is in my name, why would these assets be relevant to my spouse’s application?

When initially determining eligibility, Medicaid counts the separate property of both spouses, as well as other joint property, and revocable trust property. If married, the Community Spouse (spouse at home) can have up to half of the marital assets, subject to official parameters, unless increased by a judge’s order. Available assets are counted toward these limits while excluded (or exempt) assets are not.

Should I transfer everything into my name to help my spouse obtain Medicaid assistance?

When initially determining eligibility, Medicaid counts the separate property of both spouses, as well as other joint property, and revocable trust property. Available assets are counted toward these limits while excluded (or exempt) assets are not. Because the ownership of an asset can affect how Medicaid counts that asset, we do not recommend that you transfer assets from one spouse to another without seeking the advice of an elder law attorney. 

Will I lose my home if my spouse needs Medicaid?

No. The home of the Community Spouse (the spouse that does not need care) is exempt when determining the eligibility of the spouse in need of services.

My loved one’s nursing home has offered to file the Medicaid application for me. Do I still need legal counsel?

While allowing the facility to file for you may be the least expensive approach for you, it is still usually a good idea to get the opinion of legal counsel prior to filing. Hiring legal counsel to review your situation prior to filing can avoid a costly denial of benefits from an issue unknown to you or the facility.

In the end, a legal review by Stinson Law Firm can make both you and the facility happy. First, we ensure that there are no barriers standing in your way to receiving the coverage to which you are entitled. Meanwhile, the facility receives timely payment.

How do I apply for Medicaid?

An application for benefits is filed with the Indiana Family & Social Services Administration. An application can be filed through the agency’s online benefits portal, with a call to the agency, by mail, or by a visit to a local agency office.

How long does it take for Medicaid to process my application?

The State Medicaid agency has 45 days from the date the application is filed to process the application, however, an accurate results depends upon a well-prepared and fully accurate application.

Why does data have to be so precise?

The Medicaid applications process can be exacting. For example, if an applicant is as little as one cent over a resource or income limit, he or she will be found ineligible for Medicaid benefits. Medicaid requires that you submit written proof of the precise owner of financial assets with full identifying information (full account numbers, etc.) on a precise date to prove the applicant is eligible.

Veterans Affairs Pension Benefits


What are VA pension benefits?

The Department of Veterans Affairs (VA) provides a monthly pension for qualified wartime veterans (or their surviving spouses) who are unable to work due to either a non-service connected disability or age.

Are pension benefits just for veterans?

No. The surviving spouse of a veteran may also qualify for benefits. The pension provided to a surviving spouse is called a “death pension”.

How much is the VA pension?

The amount of the pension can vary based upon the level of disability of the claimant. The pension for a veteran begins at $1,075 per month and can be as much as $1,794 per month for a veteran who qualifies for an “aid and attendance allowance” (2017). The pension for a surviving spouse can also vary and begins at $821 per month but can be as much as $1,153 per month for a surviving spouse who qualifies for an “aid and attendance allowance” (2017). If the veteran or surviving spouse has a dependent, their award can be increased.

Are there other VA benefits beside pension?

Yes. VA pension benefits are a small segment of benefits available to veterans and their families. VA benefits also include compensation (service connected injuries), education, health care, burial, and more.

What are the qualifications for VA pension benefits?

In order to be eligible for the pension, the veteran or veteran’s spouse must meet a service test, disability test, and financial need test.

My first husband was a veteran, but my second husband was not. Now that my second husband has passed, do I qualify for pension benefits?

Generally, no. The surviving spouse who applies for a death pension must have been married to a veteran at the veteran’s death and not have remarried. There are very limited exceptions, however.

How much income can a VA pension claimant have?

The primary threshold for a claimant to pass the financial need test is to show that his or her household income is less than the Maximum Annual Pension Rate (MAPR). There are exclusions to income or deductions that may be made to reduce countable income. The most important of these deductions is a portion of unreimbursed medical expenses paid by the claimant or a member of his or her household.

The VA will determine whether the claimant has income less than the MAPR only after first subtracting allowable deductions from the claimant’s income.

What can a VA pension claimant do to reduce countable income?

Generally, the claimant must increase medical expenses to reduce countable income. This can be done by hiring additional medical care from third parties or paying relatives through a properly executed Care Agreement for medical care provided by them.

What is the asset threshold for a claimant of VA pension benefits?

A claimant must show that his or her net worth is not a bar to benefits. The VA reviews whether a claimant has “excess net worth” on a case-by-case basis.

What can a VA claimant do if he or she has too much assets to qualify for benefits?

Certain assets are excluded for purposes of determining VA pension eligibility. So, countable assets can often be converted into those that are exempt.

A claimant may also make certain gifts of assets to reduce excess net worth.

Does the VA have a transfer of assets penalty similar to Medicaid?

The VA currently has no transfer of asset penalty if a claimant makes transfers to meet this test. However, the VA proposed a regulation in January 2015 that would apply a penalty to certain transfers of assets. As a result, we highly recommend that an individual consult legal counsel prior to gifting assets to become eligible for VA pension.

How does my home affect my eligibility for VA pension benefits?

The claimant’s home is exempt for Aid and Attendance purposes. However, if the home is sold during the claimant’s lifetime, the claimant can lose VA pension benefits for up to a year after the sale. We will typically recommend that the claimant plan for the contingency prior to filing a claim for benefits.

Can I pay someone to handle my VA application?

No. VA law prohibits a representative to charge to process an applicant on behalf of the claimant. If a client of Stinson Law Firm requires assistance with a VA application, we will provide that service free of charge to our client.

How do I become eligible for VA pension?

You file a pension application with the Department of Veterans Affairs.

How long does it take for the VA to process my application?

Claims filed under the “EZ” application process (all required information is submitted with the application) are usually processed more quickly; however, the VA has no time limit to process a claim.

For claims that have not been processed after six months or more, many members of Congress are willing to help constituents expedite the processing.

Once a claim is approved, the claimant will receive a lump sum payment for the unpaid benefit that has accrued since the month after the application was made.

Special Needs Planning


Can I leave money outright to my special needs child/loved one?

Yes. However, depending upon your child’s or loved one’s needs and the size of the gift, it could disrupt their public benefits. For this reason, many individuals consider leaving assets to a special needs trust that is exempt under public benefits rules. With a special needs trust, the child or loved one will continue to receive valuable benefits and be able to use the gift as a supplemental resource for items not covered by public benefit programs.

What is a special needs trust?

A special needs trust is an important component of planning for a disabled individual (even though the individual may be an adult by the time the trust is created or funded). These trusts allow a disabled beneficiary to receive inheritances, gifts, lawsuit settlements, or other funds and not lose eligibility for certain government programs, such as Medicaid or Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiary in determining eligibility for public benefits.

Is there a way to receive a legal settlement and still qualify for SSI, Medicaid, and other public benefits?

Yes. Besides traditional public benefits planning strategies, a disabled individual may establish a special needs trust (known as a “(d)(4)(A) or first-party trust” or a “pooled special needs trust”). However, the trust must meet precise statutory criteria in order to meet the exemption.

Who can establish a special needs trust?

Many parents will establish a special needs trust for their disabled child under their own estate plan. This type of special needs trust is general called a “third party” special needs trust as it is funded with the assets of someone other than the disabled child.

In addition, Federal law permits an individual to establish their own trust and transfer their own funds to the trust. This type of special needs trust is often called a “first party” special needs trust.

What kind of benefits can a person with special needs receive?

A person with special needs may receive any and all of the following benefits:

  • Medicaid
  • Social Security Disability
  • Medicare
  • Supplemental Security Income
  • Food Stamps
  • Temporary Aid to Needy Families
  • Housing Assistance

Many of these programs require the applicant to demonstrate financial need. A special needs trust is not a countable resource for eligibility purposes for most of these needs-based programs.

What kind of assets might be in a special needs trust?

A special needs trust can hold a variety of assets from a home and a car to stocks and cash.

What can a special needs trust provide for a beneficiary?

Special needs trusts are designed not to provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public assistance funds. These trusts typically pay for things like education, recreation, counseling, and medical attention beyond the simple necessities of life.

Who will care for my special needs child when I am gone?

Without a well-thought out plan with clear instructions, your child could end up in the care of someone you would not want caring for them. This is why we recommend that you establish a comprehensive plan (including accompanying legal documents) with the help of an experienced attorney.

How do I name a guardian for my special needs child?

You should begin by nominating a guardian in your estate plan. While the determination of who will serve as guardian for your child will ultimately be the decision of a Judge, courts give great weight to the desires of the parent. If you are currently serving as guardian over your adult special needs child, you can also name your successor under a Court proscribed form.

What is an ABLE account?

An ABLE account allows a person with disabilities to establish a tax-free savings account without affecting his or her eligibility for public assistance. The purpose of an ABLE account is to use such funds to supplement an individual’s public benefits for “qualified disability expenses," such as medical and dental care, education, employment training, housing, and transportation.

Guardianship


Should I apply for guardianship?

It is important to note that a guardianship is not always necessary. If the individual has capacity, he or she can likely execute alternatives to guardianship. However, if the individual is susceptible to the influence of others or participates in other risky behaviors, a guardianship may be necessary.

When should I apply for guardianship?

Any one over the age of 18 is presumed to have legal capacity to enter into contracts, manage finances, and make personal decisions for himself/herself. If the individual is incapable of such decisions, a guardianship should be considered immediately upon attaining the age of 18 years.

What is the guardianship process?

A person begins the guardianship process by petitioning a Court. The Court will set the guardianship for hearing. Prior to the hearing, notices must be sent to the individual’s closest relatives. Notice must also be personally served to the individual (if the individual is over the age of 18).

At the hearing, evidence will need to be presented to prove the individual’s incapacity and the need for a guardian. At the conclusion of the hearing, the judge will make a determination of incapacity and appoint the guardian as necessary.

I was just appointed guardian over my special needs child. How will individuals and institutions know I am guardian?

The Court will issue Letters of Guardianship to the individual appointed Guardian. These letters are the Guardian’s “official badge of authority” and should be presented to medical providers, banks, brokerage firms, etc.

What are a guardian’s continuing obligations to the Court after the guardianship hearing?

The guardian will be required to report to the Court every two years. If the guardian is managing the individual’s finances, they must also file an accounting with the Court as well.

Decedent’s Estate


What is the asset threshold for a decedent that requires an estate to be opened with the Court?

If the decedent passed with more than $50,000 in probate assets, an estate is likely necessary to be opened with the Court in order to administer the decedent’s final affairs.

What is the difference between “probate” and “non-probate” assets?

A probate asset is an asset that is in an individual’s sole name and has no beneficiary designation.

A non-probate asset is an asset that is not a probate asset. Property held in joint name or payable on death to a beneficiary are examples of non-probate assets.

My parent died with only a small bank account in his or her sole name, but the bank insists that I will need “Letters Testamentary” from the Court to close the account. Is this correct?

Indiana law provides that if the decedent’s probate assets are less than $50,000, no estate administration is required. In such a situation, the beneficiaries of the asset can submit an affidavit to the bank in lieu of Letters Testamentary.

 Strength in Compassion: Elder and Special Needs Law Done Right

Stinson Law Firm works with clients across the state of Indiana, including Hamilton, Marion, Boone, Hancock, Hendricks, Howard, Johnson, and Morgan counties. Schedule your consultation today.