If you, a spouse, or parent  think that you may need the services of a nursing home in the near future, you should know that there are some things you can do to plan for this possibility and help maintain some of the person’s assets.

Nursing homes can be very expensive. Residing on one can deplete $9,000 to $12,000 per month from one’s assets on a monthly basis. You can apply for Medicaid to assist with these bills, but they will only begin paying once the person has completely “spent down” their assets to$13,800 (in 2009) altogether.

There are steps that you can take which would allow you to preserve much of your assets for the next generation while still qualifying for Medicaid if and when nursing home services are needed.

When an individual applies for Medicaid, and the Department of Social Services is looking into whether the application has indeed depleted his or her assets down to almost nothing, they actually look up to five years prior to the application date to see if the person made any transfers to children or others in order to preserve their assets from Medicaid’s required “spend down” to poverty.

Elder law attorneys, such as the experienced lawyers at  The Law Office of Elliot Schlissel, can assist individuals in applying for Medicaid or, for instance, setting up an Irrevocable Trust that may allow a senior to preserve his or her assets from Medicaid’s “spend down” requirement throughout their lives.

We can personalize these trusts depending on each individuals circumstances.

For instance,  if someone has owned their home for a long time, such that the house has increased in value by $250,000 for individuals or $500,000 for married couples, and if the Irrevocable Trust does not appropriately deal with this increased equity in the residence, there can be significant tax liability when the house is sold.

Regardless of whether you need an Elder Law attorney to prepare a Medicaid application or create any other kind of Medicaid plan, you can contact our offices at 800-344-6431 or e-mail us with any questions or to set up a free consultation.

Picture courtesy of injuryboard.com.

helmsley-and-her-dogEric Penzer, at the New York Trusts & Estates Litigation Blog, posted the newsthat the New York County Surrogate ruled last week that Leona Helmsley‘s 5-8 billion dollar Charitable Trust need not limit its beneficience to dogs.

Ms. Helmsley had already tried to leave 12 million dollars, from her Will, to a trust for her dog’s benefit. But Surrogate Renee Roth reduced the amount of that trust to 2 million because one can only leave money in an estate for the benefit of an animal to the extent that that money can actually go toward the care of the animal.

But her much larger $5-8b Charitable trust contained language in its mission statement that the trust should “provide for the care of dogs and such other charitable activities as the trustees shall determine.”

The Surrogate ruled that since the mission statement indicated that the trust funds may be used for “such other charitable activities as the trustees shall determine,” the instructions that the trust be used “for the care of dogs” is non-binding, precatory language, and the trustees may use their discretion to distribute the funds to causes that would benefit needy human beings.

The rule regarding the non-enforceability of language that merely expresses a preference or a hope by a Decedent in a Will or Trust was explained in Matter of Samuelson, 110 AD2d 183, 187 (2d Dept 1985). The Appellate Division stated that it is well established that “precatory language contained in a will is merely an expression of the testator’s wish or desire and is not legally binding on the person to whom the wish or desire is directed… Thus, the named party ‘can carry out the wish and desire of the testator or not as he sees fit.’ ” (citations omitted).

Most of us do not have multi-billion dollar estates to dispose of, but many of us do want to see that our property is disposed of appropriately and that the surviving members of our family are cared-for properly.  Our office has a large Wills, Trusts & Estates practice, so I have been able to see a wide variety of situations arise, including decisions about whether to include this kind of “precatory language” in a will or other testamentary document. So give us a call!

Picture of Leona Helmsley and her beloved dog, Trouble, courtesy of abcnews.com.