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Jeffrey A. Marshall

Jeffrey Marshall’s Answers

17 total


  • My father wants to transfer all his assets into my name to qualify for Medicaid in five years. Is that the best thing to do?

    At 78, my father is beginning to experience some health problems. He wants to transfer his assets into my name so that he can qualify for Medicaid in five years. He has enough assets to care for himself until that time even if he had to go into a ...

    Jeffrey’s Answer

    One very useful Medicaid planning technique involves the creation of an irrevocable Medicaid Asset Protection Trust. With this type of trust one person or a married couple (called the settlor, or grantor) transfers some type of property to another person (called the trustee) to hold and manage for the benefit of one or more individuals (called the beneficiaries).

    Example: Bill and Betty have savings and investments of $300,000, mostly from the recent sale of their home. They currently live off the income from that sale plus their social security. They worry that if either of them requires nursing home care, their funds will quickly be dissipated.

    After consulting with an experienced elder law attorney, Bill and Betty decide to transfer $200,000 of their assets to a Medicaid Asset Protection Trust. The trust provides that all the income from those assets - and only the income - will be paid to the two of them during their lives, and that if either enters a nursing home, the income will be paid to the healthy spouse. After the death of both, the trust will terminate, and whatever is left in the trust will be paid to their children. In this way they can protect their assets and provide a stream of income for the remainder of their lives.

    There are some disadvantages to this type of planning. Gifts (including gifts to a Medicaid Asset Protection Trust) can cause the donors to be ineligible for Medicaid benefits for a limited period of time. The length of the ineligibility period depends upon the value of the assets given away. After the ineligibility period has expired, the assets in the Medicaid Asset Protection Trust should be protected from nursing home costs. The other drawback to this kind of trust is that neither spouse can have access to the principal (or assets) of the trust. It is precisely this lack of access that protects the trust assets from nursing home costs. The Trustee can, however, be permitted under some circumstances to distribute trusts assets to the couple's children.

    The Medicaid Asset Protection Trust is not for everyone, but in the right circumstances it can be an outstanding means of protecting a family's financial security. The legal rules that apply to these trusts are complicated. If your father decides to use this method of protecting his assets, it is important that you use an attorney who is familiar with the intricacies of the Medicaid laws and who has experience in creating this type of trust.

    Please note: The Irrevocable Medicaid Asset Protection Trust referred to above is very different from the revocable "living trust" that is currently being sold through "Living Trust Seminars." A revocable "living trust" provides no protection from nursing home costs.

    Legal disclaimer: Please note: Jeffrey A. Marshall is licensed to practice law in Pennsylvania. Nothing in this article is to be taken as legal advice. No communication between Jeffrey A. Marshall and readers of this article is to be inferred to cause an attorney client relationship. If you require legal assistance please contact an attorney who is licensed in your jurisdiction and knowledgeable in the area of law in which you require help.

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  • Who Pays Funeral Expenses

    My brother has just passed away, and since he was in a fued with his wife, she is reliable for funeral expenses. He had no will that we were aware of and no life or health insurance. We are concerned because we fear she is going to stiff the fun...

    Jeffrey’s Answer

    Generally, your brother's estate would have primary responsibility for his debts, including his funeral costs. However, if his wife or someone else in the family signed a contract with the funeral home agreeing to pay for these expenses, they are liable as well, especially if your brother's estate is inadequate to pay.

    The surviving spouse would generally not be liable for the funeral expenses unless she signed an agreement to be held responsible for them. If she did sign such an agreement and fails to pay, the funeral home can seek repayment from your brother's estate and/or from her.

    Other family members should not be legally responsible for the funeral expenses unless they signed an agreement taking on that liability.

    Legal disclaimer: Please note: Jeffrey A. Marshall is licensed to practice law in Pennsylvania. Nothing in this article is to be taken as legal advice. No communication between Jeffrey A. Marshall and readers of this article is to be inferred to cause an attorney client relationship. If you require legal assistance please contact an attorney who is licensed in your jurisdiction and knowledgeable in the area of law in which you require help.

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  • As a beneficiary do you have to accept a will or trust?

    If you cannot accept, do you have to go through a legal process? Or can you just say no? Does it vary by the amount of money that is being given? Does it change when property is involved?

    Jeffrey’s Answer

    Be careful if you are getting getting public benefits (e.g. SSI, or Medicaid long term care benefits). Declining (disclaiming) a bequest from an estate or trust may cause you to lose your benefits. Check with a certified elder law attorney or other attorney in your state who is experienced in public benefit issues if you are in this situation.

    Legal disclaimer: Please note: Jeffrey A. Marshall is licensed to practice law in Pennsylvania. Nothing in this article is to be taken as legal advice. No communication between Jeffrey A. Marshall and readers of this article is to be inferred to cause an attorney client relationship. If you require legal assistance please contact an attorney who is licensed in your jurisdiction and knowledgeable in the area of law in which you require help.

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  • My mother has dementia and recently entered a nursing home. Her will in 2006 made me executor and gave me POA.

    My brother, who lived with her, had a new will made a year ago and named himself executor and POA. Yes, my mother signed it, but would have signed anything put in front of her. He is fraudently spending her money. He has written checks for cash fo...

    Jeffrey’s Answer

    This is not an unusual scenario. You should retain the services of a lawyer licensed in Pennsylvania who is experienced in handling contested guardianship actions. Try to find one in the county where your mother resides. A contested guardianship can be a nasty business, and expensive, so get good advice and consider your options carefully before you proceed.

    in addition (or in the alternative) If you believe your mother is being financially or physically abused you can report the matter to Older Adult Protective Services. Pennsylvania has a Statewide elder abuse hotline - call: 1-800-490-8505

    Any person who believes that an older adult is being abused, neglected, exploited or abandoned may call the elder abuse hotline.

    Legal disclaimer: Please note: Jeffrey A. Marshall is licensed to practice law in Pennsylvania. Nothing in this article is to be taken as legal advice. No communication between Jeffrey A. Marshall and readers of this article is to be inferred to cause an attorney client relationship. If you require legal assistance please contact an attorney who is licensed in your jurisdiction and knowledgeable in the area of law in which you require help.

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  • Can you put all your assets into a trust for disabled child and then be eligible for medicaid

    If you have a child on disability who owns a house herself, can you transfer all your assets(stocks, cash and proceeds from the sale of a co-op apartment owned jointly by you and your daughter) into a trust for your daughter and then apply for me...

    Jeffrey’s Answer

    Medicaid law generally limits the ability of an individual to give away their assets in order to "spend down" to the level required to Medicaid for Medicaid long term care. (Transfer penalties generally apply to eligibility for Medicaid long term care benefits but not for regular Medicaid.)

    However, the law that penalizes transfers of assets includes a number of exceptions. One important exception applies to transfers that are made by a parent to his or her disabled child.

    42 U.S.C. § 1396p(c)(2)(B)(iii) of Federal Medicaid law provides that “An individual shall not be ineligible for medical assistance by reason of [the transfer penalty rules] to the extent that . . . the assets were transferred to, or to a trust . . . established solely for the benefit of, the individual’s child described in subparagraph (A)(ii)(II) [which describes blind and disabled children].”

    This means you may be able to transfer all of your assets into a trust for a disabled child and possibly be able to qualify for Medicaid LTC immediately thereafter. If you do it correctly, there should be no penalty period. But get expert help - look for a Certified Elder Law Attorney in you jurisdiction - and carefully consider all of the consequences on everyone involved.

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  • My grandmothers house was signed over in 2007. Now she is in a nursing home. They say she owes $35,000. How does the house...?

    Signed over to me in 2007. She had life use. About a year ago she went to a nursing home only for rehabilitaion. Due to several falls and instances of sever dehydration her health as taken a turn for the worse and she is now in there long term....

    Jeffrey’s Answer

    The Medicaid rules regarding transfer of a residence are complicated and subject to many exceptions. In general, transferring your home to someone other than your spouse within 5 years of applying for Medicaid long term care benefits will result in a period of time during which you are ineligible for Medicaid. This is a problem your mother has run into.

    But there are many exceptions and there may be planning opportunities - depending on additional facts in your case and specific Medicaid rules in your state.

    You need to consult with an attorney in your jurisdiction who is very familiar with Medicaid qualification rules. See if you can find a Certified Elder Law Attorney in your geographic area - check the website at www.nelf.org to find one.

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  • What companies offer Medicaid qualified DRA compliant annuities for PA residents? Can I purchase one or do I need a lawyer?

    I can find information on DRA compliant annuities but can't find the names of the companies that offer them. How can i find out what companies to contact?

    Jeffrey’s Answer

    A Pennsylvania Company that offers DRA compliant annuities is Pennsylvania Care Management. Its web address is www.paannuity.com. It specializes in DRA annuities for residents of Pennsylvania. (The rules vary from state to state) Check out its website for more information.

    DRA annuities are a wonderful planning tool in the right situation. But you definitely need an experienced elder law attorney who knows the ins and outs of Medicaid Planning to help you through the process. Be very careful in choosing this lawyer. Safest course is to find a Certified Elder Law Attorney.to help you. You can find a listing of all Certified Elder Law Attorneys in Pennsylvania at www.nelf.org.

    Jeffrey A. Marshall, CELA*
    Marshall, Parker & Associates, LLC
    Williamsport, Wilkes-Barre, Scranton, Jersey Shore, PA
    JMarshall@paelderlaw.com
    570-321-9008

    *Certified as an Elder Law Attorney by the National Elder Law Foundation
    Visit my blog at http://marshallelder.blogspot.com
    You can Follow me on Twitter at http://twitter.com/ElderLawGuy
    website: www.paelderlaw.com

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  • An "Elder Law" predatory lawyer moved to town whose own elderly father sued him over 790k in Trust assets. How can I stop him?

    My elderly mom was lured by his "Veteran's Law*Social Security Appeals*Nursing Home Law*VA Accredited Attorney*Member SS*Elder Law Attorneys" phone book ad. She was wowed by his Reno NV "I've gotten millionaires on Medicaid" patter. He promise...

    Jeffrey’s Answer

    Recognizing that there may be two sides to this story, it is possible that this lawyer has acted both unethically and negligently.

    If he acted unethically, you can file an ethics complaint against him with the Texas State Bar (the statewide lawyer organization). You can all the State Bar of Texas, Client Assistance and Grievance committee at (800)932-1900.

    If you mother was damaged because the lawyer did not act appropriately with her case, you can sue him. You will need to hire another lawyer - a litigator with experience in professional liability matters - to do this. the other lawyer may take the case on a contingent fee basis.

    The complaint with the state bar won't cost your mother anything, and eventually will effectively "spread the word" if the complaint is found to be meritorius. In either case your mother should be the one making the complaint, since she was the client and person aggrieved.

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  • Marcellus Shale question

    How much should I expect to pay a lawyer to review and negotiate my Marcellus Shale lease?

    Jeffrey’s Answer

    Assuming you have a fairly typical situation involving a few hundred acres, you might expect to pay $1,000 to $4,000 to have a lawyer negotiate an appropriate addendum for your lease. Make certain you retain a lawyer who does a ton of this type of work. Some lawyers will work with you via telephone, fax and e-mail so distance is not much of a factor. But you will need a lawyer licensed to practice in the state where your land is.

    If you have a significant gas interest, you might want to consider joining the National Association of Royalty Owners - which has a Pennsylvania Chapter if your land is in PA - http://www.naro-us.org/

    Also, read my article on Estate Planning for Landowners - it is available on my blog at http://marshallelder.blogspot.com/2010/10/new-gas-wealth-complicates-estate.html

    Jeffrey A. Marshall

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  • Can my 87 yr old mom be forced to sell the home she lives in with her 50 yr old daughter if nursing home costs exceed insurance?

    My 50 year old sister is the care-taker of my 87 year old mother. They live together in the home which my mother owns. In the event my mother becomes ill and requires a stay at a nursing home can the nursing home "go after" my mother's house for ...

    Jeffrey’s Answer

    A nursing home can't "go after" a person's home or other assets. The way it works is that when a person goes into a nursing home they have to pay for the cost of their care. Most private insurance (except special long term care insurance) have limited or no nursing home benefits. Medicare has very limited nursing home benefits.

    So, your mother would need to find some way to pay for the cost of her care. Most people in nursing homes eventually qualify for Medicaid assistance to pay for that care. But Medicaid requires that a person only have limited assets before it will pay for care. This means that a nursing home resident has to "spend down" their available income and assets before Medicaid will pay for their nursing home costs.

    However, there are a number of assets that are excluded from spend down under Medicaid rules. One of the them is a home of modest value. Medicaid will disregarded the nursing home resident's primary residence, as long as the home owner evidenced an intent to return home. This means that, in most cases, a nursing home resident can keep their residence and still qualify for Medicaid to pay the nursing home expenses. The nursing home doesn't (and cannot) take the home.

    Note that special rules apply if the Medicaid applicant owns a home that is worth more than $500,000.

    So, Medicaid would pay for your mother's nursing home care even though she owns the home, as long as the home isn't worth more than $500,000. It is protected during her lifetime. This likely means that your sister could continue to reside in the home during your mother's lifetime. However, there is a program called Medicaid Estate Recovery that could put the home in jeopardy after your mother's death, to the extent she received Medicaid benefits during life.

    Your mother and sister may be able to avoid Medicaid Estate recovery in several ways. For example, since your sister has been caring for your mother, she may qualify as a "caregiver child." If she does, your mother could transfer an interest in the home to your sister that would protect the home no matter what happens to your mother.

    The rules are complex but a qualified elder law attorney in the state where your mother resides should be able to advise your mother and sister of the options that are available. They can find a list of certified elder law attorneys in their area at www.nelf.org. The Medicaid rules vary somewhat depending on the state, and your family really should get some expert guidance as soon as possible.

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    DISCLAIMER: This general information is not intended, and should not be construed as legal advice. This posting does not create any attorney client relationship. Its author is licensed to practice law in Pennsylvania. For specific advice about your particular situation, consult a lawyer who is licensed to practice in your jurisdiction.

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