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  • March 7, 2017

    March 7, 2017   Medicaid Planning

    Per capita caps on Medicaid introduced in repeal and replace legislation

    By Valerie Peterson, J.D.

    Monday, House Republicans released the bill that they have drafted to repeal the Affordable Care Act.  The new legislation is called the “American Health Care Act,” and you can review it in its entirety here (from the House Energy and Commerce Committee) and here (from the House Ways and Means Committee).     As expected, the bill contains major changes to the Medicaid program, including the use of per capita caps, found in Subtitle C of the proposed bill.  For more on per capita caps and the possible costs associated with them, see our prior blog post.  Additional articles that discuss per capita caps include, “5 Key Questions: Medicaid Block Grants & Per Capita Caps” from the Kaiser Family Foundation and “Per Capita Caps in Med... Read More


  • October 19, 2016

    October 19, 2016   Medicaid Planning,   Elder Law

    EC Medicaid Family Protection Trustâ„¢ FAQs

    On Monday, October 17, ElderCounsel released a new document set in ElderDocx, EC Medicaid Family Protection Trustâ„¢. This document set creates an asset-protected trust for the grantor's family. Below are a few frequently asked questions we've received. What is the EC Medicaid Family Protection Trust? The EC Medicaid Family Protection Trust is an irrevocable trust with certain options preselected to provide creditor protection for the grantor and the family, yet works for Medicaid planning. Many clients don't want to focus on their own need for care in the future, but they are concerned about passing a legacy on to their loved ones without interference from creditors—both known and unknown. The EC Medicaid Family Protection Trust addresses this concern, and makes draf... Read More


  • October 18, 2016

    October 18, 2016   Medicaid Planning,   Elder Law

    Design of the EC Medicaid Family Protection Trustâ„¢

    On Monday, October 17, ElderCounsel released a new document set in ElderDocx, EC Medicaid Family Protection Trust. In short, this document set creates an asset-protected trust for the grantor's family. We would like to take a little time and discuss the design of the new document set. The EC Medicaid Family Protection Trust is designed to protect the grantor's assets for the grantor's family. This is done by utilizing the Distribution Trustee technique and presetting or limiting some of the options that are found in the EC Medicaid Asset Protection Trust. You could create the same document using the MAPT, but the FPT makes it easier by preselecting and presenting only those options that give the best asset protection result. The general rule in an asset protection trust i... Read More


  • April 28, 2016

    April 28, 2016   Medicaid Planning

    Heyn v. Director of the Office of Medicaid

    By Howard S. Krooks, Esq., CELA

    Heyn v. Director of the Office of Medicaid, Mass. Appeals Court (Opinion No. 15-P-166), 2016 WL 1466564, April 15, 2016 (Roche case in lower court and Fair Hearing) In a much anticipated decision, and in the face of many contrary Massachusetts fair hearing and court opinions in this area of the law, a Massachusetts Appeals Court overturned a Superior Court and Fair Hearing Decision that concluded that assets contained in an irrevocable trust were countable for MassHealth purposes. The facts of the underlying case are as follows:  Everlina Roche resided in a skilled nursing facility from November 4, 2011 through her date of death on August 25, 2013.  She established an irrevocable trust eight and one half years earlier, transferring her home into the trust and retaining a li... Read More


  • February 4, 2016

    February 4, 2016   Medicaid Planning

    Daley v. Sudders

    By Nicole Nixon, Marketing

    At ElderCounsel, we keep you updated on the most recent and relevant legal updates so you can stay informed and confident in your practice.   A Massachusetts trial court has ruled that a Medicaid applicant’s irrevocable trust is an available asset because the applicant still had the right to live In, use and receive income from the condominium owned by the trust. See Daley v. Sudders (Mass. Super. Ct., No. 15-CV-0188-D, December 24, 2015). On December 19, 2007, Mr. and Mrs. Daley established the “James Daley and Mary Daley Irrevocable Trust”, and appointed their son, James Daley, and their daughter, Patricia Tubaj, as the trustees. On the same day, Mr. and Mrs. Daley transferred their interest in their condominium located in Worcester to the Trust. They retained... Read More


  • October 19, 2015

    October 19, 2015   Medicaid Planning

    Final Friday-The Zahner Case

    By Valerie Peterson

    September brought two interesting cases in the area of Medicaid planning. The Zahner case out of Pennsylvania was heard by the Third Circuit, and involved Medicaid-compliant annuities, specifically how short-term annuities should be treated. In Ohio, the Federal District Court denied the State’s motion for summary judgment and certified a class to challenge the State Medicaid agency’s refusal to provide for up to 3 months’ retroactive benefits to Medicaid Waiver recipients. We had 2 of the top experts providing their input during the call – Rene Reixach, Esq., who argued the Zahner case, and Dale Krause, Esq., a leader in the field of Medicaid-compliant annuities.  To download and read the transcript from this call, click here. The recording an... Read More


  • September 22, 2014

    September 22, 2014   Practice Building Ideas,   Medicaid Planning

    Hiring a Medicaid Paralegal: Creating Profits and Value for Your Elder Law Practice

    By Alisa Spirit of the Wind

    Following on the series of interviewing ElderCounsel and Office Management members to provide an opportunity for them to share success stories and tools that have worked particularly well for them, and offer tips for colleagues, this month I had the pleasure of interviewing Michael Luizzi with the Pierro Law Group in upstate New York. I spoke with Mike about his role as Medicaid and Long Term Care Paralegal at the Pierro Law Group and his journey to become a dedicated paralegal in this arena. We also discussed the benefits an elder law practice can realize through hiring a paralegal dedicated to this area of work and how attorneys can find qualified candidates for this position.   Mike’s Story Mike began in the Medicaid field by working as a Welfare Examiner in a local Departmen... Read More


  • September 8, 2014

    September 8, 2014   Medicaid Planning

    Idaho Further Expands the Definition of "Estate" for Recovery Purposes

    ElderCounsel is committed to sharing pertinent case information with our members and the entire elder law community. As such, we hope you find the memorandum below, prepared by Rene Reixach, J.D., a member of the ElderCounsel National Advisory Board, informative as it discusses a recent case in Idaho that bears relevance for the definition of estate subject to Medicaid recovery and how relief can be sought through an appeal on the federal level.   The Idaho Supreme Court has again adopted a very expansive definition of the property which is subject to Medicaid estate recovery.  In Idaho Dep’t of Health & Welfare v. Peterson, 2014 Ida. LEXIS 217 (Aug. 13, 2014), the court held that the remainder interest in a home in which the deceased Medicaid recipient had reserved a l... Read More


  • September 2, 2014

    September 2, 2014   Medicaid Planning

    Shockingly High Percentage of Seniors Report Financial Exploitation

    A new study reported recently in the Journal of General Internal Medicine found an appallingly high percentage of senior citizens reported being taken advantage of financially.   Just as sadly, more often than not a relative of the victim, the study found, perpetrated this form of elder abuse.   “Financial exploitation of older adults is a common and serious problem, and especially happens to elders from groups traditionally considered to be economically, medically and socio-demographically vulnerable,” Janey Peterson, of Weill Cornell Medical College was quoted as saying in a press release announcing the publication of the study. “In addition to robbing older adults of resources, dignity and quality of life, it is likely costing our society dearly in the form o... Read More


  • August 18, 2014

    August 18, 2014   Medicaid Planning

    Planning Required in Naming Retirement Plan Beneficiaries

    Some retirement plans live on after the retired person no longer is alive.   What happens after the death of the person with whom the 401(k) or other instrument originated can get messy without proper planning, but a recent article on the website Bankrate.com quoted an expert on Individual Retirement Accounts as saying that often that planning doesn’t take place. Things can become especially complicated if circumstances dictate that the beneficiary should be someone other than the spouse of the retired individual.   “Choosing your retirement plan beneficiary is one of the most far-reaching financial decisions you can make, yet most people give it very little thought,” according to the article by Sonya Stinson. “But if you want control over where the retire... Read More