Round Rock, TX Attorney Blog

Thursday, July 30, 2015

Using Divestment Strategies to Secure Long-Term Care

Will Medicare cover the costs of a nursing home stay? 

The government-run health insurance program known as Medicare is accessible by millions of Americans upon reaching age 65 – covering a wide range of services from general wellness visits to invasive surgery. However, one glaring issue with Medicare coverage is its virtual ignorance of long-term care needs for seniors who are simply no longer able to live on their own. More specifically, long-term care coverage is generally available to a Medicare enrollee only up to 120 days – and is usually reserved for rehabilitative-type treatments or post-operative recovery requiring skilled nursing. 

So, for the average American with a moderate nest egg saved, how is one to afford the skyrocketing costs of nursing home care – which average anywhere from $7,000-$12,000 per month depending on the jurisdiction? Further, if a husband and wife require care together, this sum could be potentially doubled – depleting assets at a record pace. 

In short, Americans are either required to deplete their entire life savings on the costs of long-term care, or with a little pre-planning can arrange for careful and tactful divestment strategies to help them to eventually qualify for Medicaid – another government health insurance option based primarily on financial need. 

Divestment strategies and Medicaid

Medicaid regulations are comprised of a myriad of guidelines, income thresholds, and property allowances to guide applicants as they begin the application process. For married applicants, the excluded income and assets are somewhat higher than those assessed against single applicants. However, in either scenario, applicants must demonstrate a lack of significant assets in order to qualify. 

Herein lies the need for an experienced elder law attorney to help plan proper and lawful divestment strategies in order to preserve assets for future generations while simultaneously ensuring long-term care eligibility when the time comes. One way to do this is to begin transferring assets to family members now, in hopes that the need for Medicaid eligibility will not occur during the five-year lookback period – which could trigger a penalty. There are also other ways to spend down your assets such as pre-paying for funeral and burial costs.  Other options include the use of irrevocable trusts, which should be handled with the care and consideration of a knowledgeable attorney. 

If you are considering the rising needs of long-term care in light of your own personal savings – and would like to speak to a reputable elder law attorney – contact the Valparaiso and Porter County, Indiana based Winters Law Firm at (219)307-4373 today. 

Wednesday, July 29, 2015

Business Succession Planning Tips

Business succession plans contemplate and instruct regarding any changes in future ownership and management of a business. Most business owners know they should think about succession planning, but few actually end up doing so. It is hard to think about not being in charge of the business you have built up, but a proper succession plan can ensure that your business continues long after you are there to run it, providing an enduring legacy.

Here are a few tips to keep in mind when you begin to think about putting a succession plan into place for your business.

  • Proper plans take time - often years - to develop and implement because there are many steps involved. It is really never too early to start thinking about how you want to hand off control of your business.

  • Succession plans are a waste of time unless they are more than a piece of paper. Involving attorneys, accountants and business advisors ensures that your plan is actually implemented.

  • There is no cookie-cutter succession plan that fits all businesses, and no one way to develop and implement a successful plan. Each business is unique, so each business needs a custom-made plan that fits the needs of all parties involved.

  • It may seem counterintuitive, but transferring a business between people who are familiar with the business - from one family member to another, or between business partners - is often more complicated than selling the business to a complete stranger. Emotional investments cannot be easily quantified, but their importance is real. Having a neutral party at the negotiating table can help everyone involved focus on what is best for the business and the people that are depending on it for their livelihood.

  • Once a succession plan has been established, it is critically important that the completed plan be continually reviewed and updated as circumstances change. This is one of the biggest reasons having an attorney on your succession planning team is important. Sound legal counsel can assist you in making periodic adjustments and maintaining an effective succession plan.

If you are ready to start thinking about succession planning, contact an experienced business law attorney today.

Friday, July 17, 2015

If you're over 70 and have considerable assets, should you consider Medicaid Planning?

There are many factors to consider when deciding whether or not to implement Medicaid planning.  If you’re in good health, now would be the prime time to do this planning. The main reason is that any Medicaid planning may entail using an irrevocable trust, or perhaps gifts to your children, which would incur a five-year look back for Medicaid qualification purposes. The use of an irrevocable trust to receive these gifts would provide more protection and in some cases more control for you.

As an example, if you were to gift assets directly to a child, that child could be sued or could go through a divorce, and those assets could be lost to a creditor or a divorcing spouse even though the child had intended to hold those assets intact in case they needed to be returned to you. If instead, you had used an irrevocable trust to receive the gifted assets, those assets would not have been considered the child’s and therefore would not have been lost to the child’s creditor or a divorcing spouse. You need to understand that doing this type of planning, and using the irrevocable trust, may mean that those assets are not available to you and therefore you need to be comfortable with that structure.

Depending upon the size of your estate, and your sources of income, perhaps you have sufficient assets to pay for your own care for quite some time. You should work closely with an attorney knowledgeable about Medicaid planning as well as a financial planner that can help identify your sources of income should you need long-term care. Also, you should look into whether or not you could qualify for long-term care insurance, and how much the premiums would be on that type of insurance.

Monday, July 6, 2015

Estate Planning for the Chronically Ill

There are certain considerations that should be kept in mind for those with chronic illnesses.   Before addressing this issue, there should be some clarification as to the definition of "chronically ill." There are at least two definitions of chronically ill. The first is likely the most common meaning, which is an illness that a person may live with for many years. Diseases such as diabetes, cardiovascular disease, lupus, multiple sclerosis, hepatitis C and asthma are some of the more familiar chronic illnesses. Contrast that with a legal definition of chronic illness which usually means that the person is unable to perform at least two activities of daily living such as eating, toileting, transferring, bathing and dressing, or requires considerable supervision to protect from crisis relating to health and safety due to severe impairment concerning mind, or having a level of disability similar to that determined by the Social Security Administration for disability benefits. Having said all of that, the estate planning such a person may undertake will likely be similar to that of a healthy person, but there will likely be a higher sense of urgency and it will be much more "real" and less "hypothetical."

Most healthy individuals view the estate planning they establish as not having any applicability for years, perhaps even decades. Whereas a chronically ill person more acutely appreciates that the planning he or she does will have real consequences in his or her life and the life of loved ones. Some of the most important planning will center around who the person appoints as his or her health care decision maker and also who is appointed to handle financial affairs. a will and/or revocable living trust will play a central role in the person's planning as well.  Care should also be taken to address possible Medicaid planning benefits.  A consultation with an estate planning and elder law attorney is critical to ensuring all necessary planning steps are contemplated and eventually implemented. 

Thursday, July 2, 2015

Implementing a Digital Component to an Estate Plan

What do I need to know about ‘digital estate planning,’ particularly with regard to my intellectual property and online assets? 

In today’s modern times, estate planning encompasses more than the family jewels and heirloom China. With the concept of “digital assets” expanding rapidly, clients and estate planners alike should be intimately aware of the pitfalls awaiting anyone failing to take this property component into account. 

Discussed below are several facets of digital estate planning, ranging from simple password management to transferring high-value online assets. If you have additional questions about preparing for the future, please do not hesitate to contact the Winters Law Firm as soon as possible! 

Password and portfolio management

In the olden days, an executor could simply access the contents of one’s financial portfolio by opening the file cabinet drawer and withdrawing the appropriate file folder. Today, however, it is increasingly common for all financial information to be stored digitally – and many folks forgo the option of even receiving a paper statement. 

Accordingly, a comprehensive estate plan should include a password manager detailing the login information accompanying all savings, checking, investment, and retirement accounts. The information should be continually updated as passwords change, and should be stored with all other estate planning documents to make it accessible for the executor. 

Online assets

Many people make a living online, including bloggers, writers, photographers, and developers. From an intellectual property perspective, the contents of a valuable blog or digital portfolio can be extremely important to safeguard, and should be provided for in an estate plan accordingly. Likewise, planners should ensure that personally valuable family mementos stored digitally are properly addressed either outside the estate plan or within the personal property section of a will or trust. 

Social media

A social media presence is virtually unavoidable in today’s world. However, social media profiles should be taken down as soon as practicable following the death of the account holder – if out of nothing more than respect for the family. Of course, many may choose to leave condolences or final messages for the deceased’s family, but a comprehensive estate plan should include login information and instructions for the deactivation and/or removal of an account when necessary. Otherwise, it can be very difficult for an executor to handle this issue – resulting in the perpetual presence of the profile, which can be very difficult for survivors. 

If you would like to add a digital component to your estate plan, or would like to speak to a knowledgeable estate planning

attorney, please contact the Winters Firm, serving clients in Porter County and Valparaiso, Indiana, today at (219)307-4373. 

Tuesday, June 30, 2015

Are Non-Compete Agreements Appropriate For My Business?

The aim of non-compete agreements is to bar departing employees from working for your business competitors or from starting a competing business. These agreements used to be reserved for high-level employees or people working in certain fields who had access to sensitive information. While non-compete agreements are becoming more common, they are only enforceable to a limited degree and in some states not enforceable at all.

In considering whether a non-compete agreement can be enforced, courts generally examine whether there is a legitimate business interest at stake and whether the agreement is narrowly crafted to protect that interest. Courts tend to disfavor restrictive covenants such as non-compete agreements because it limits commerce and can prevent an individual from earning a livelihood. Here are a few factors to consider when looking to implement a non-compete:

  • What is unique about my business? If there is something about your business that sets it apart from its competitors - a product, a process, a method of doing business - a non-compete agreement could protect your advantage. It might also be wise to consider other protections such as patents.

  • Over what area would I need a non-compete to apply? Would employees be barred from working at a competing business across the street? In the same city? Within 50 miles? Within the same state? The larger the radius, the less likely a court is to enforce it.

  • To which companies would a non-compete need to apply? Are your employees going to be able to get jobs in your field if they leave your company, or would your agreement make them essentially unemployable? Courts typically frown on agreements that leave people completely out of work.

  • How long would a non-compete need to last? The shorter the time an employee is restricted by the agreement, the more likely the court is to find the restriction reasonable.

  • Under what circumstances would the non-compete kick in? If an employee is fired, are they going to face the same restrictions as an employee voluntarily leaving your employ?

When considering any agreement with your employees, including restrictive covenants such as non-compete agreements, it is important to consult an experienced business law or employment law attorney who can properly advise you and help you craft an agreement that is likely to be enforceable.

Tuesday, June 23, 2015

Basics of Pre-Planning for Long-Term Care

What are the best strategies to consider in anticipation of needing long-term skilled nursing care?

Based on current data, the average annual cost for a stay in a nursing home in Indiana is a staggering $60,000 per year. For many middle-class Americans, this amount – particularly if both spouses need care – is enough to deplete a sizable nest egg in just a few short years, leaving nothing for future generations. As such, it is vital to consider the advantages of long-term care planning long before the need arises, and an elder law attorney can help you best understand your options. 

One foundational principle to understand from the outset is that Medicare does not cover long-term care past 120 days. In other words, a patient needing skilled nursing care longer than four months will need to self-pay. As explained above, paying $5,000 or more per month for a nursing home residency can quickly deplete one’s entire life savings in just a few short years, leaving many to ponder if an alternative option may be better. 

Medicaid Planning

As opposed to Medicare, the Medicaid program does offer full-time benefits for those needing long-term care in a nursing home. However, the program is need-based, and is only available to those who can show a true financial need for long-term care benefits. 

Generally speaking, a Medicaid applicant may only have a small amount of income and assets – not including the family home if the applicant’s spouse is still in residence. Accordingly, pre-planning for long-term care (i.e., Medicaid eligibility) requires the disposal of assets to reach the maximum threshold. Under Medicaid guidelines, below-market transfers of property will trigger a penalty period if the transfer occurred within five years of the date of application. Likewise, any transfers of property made during this five-year “look back” period will result in a penalty congruent with the value of the transfer – and the amount of months the applicant could have paid for with the funds. 

Use of irrevocable trusts is also a way to protect assets from Medicaid regulation, as any property transferred to trust is considered to be no longer “owned” by the trust creator, and therefore is not counted as an asset for Medicaid purposes. Of course, careful drafting of an irrevocable trust is an essential component to the long-term care planning process, and we encourage you to contact a knowledgeable attorney as soon as possible. 

If you are considering long-term care costs and would like to discuss your options, please contact the Valparaiso and Porter County elder law attorneys at the Winters Law Firm by calling (219)307-4373 today. 

Monday, June 1, 2015

The Importance of Health Care Powers of Attorney

How can I ensure that I stay at home until I die?

One of the most common questions we get from our clients when we are putting together health care power of attorney documents is whether the document will allow their designee to put them into a nursing home against their wishes, because, “I want to live at home until I die.” In typical lawyer fashion, we answer, “It depends.”

Health care power of attorney powers do not kick in automatically, so you need not worry about being “put into the old folks home” the minute you sign the document. The powers you are giving your designee are “springing,” which means they spring into effect only when needed - when you are unable to make decisions for yourself. 

This means you cannot be put into a nursing home if you do not want to be so long as you are able to adequately care for yourself or arrange for someone else to care for you in your home. 

If, at some point in time, you can no longer physically take care of yourself and are mentally unable to make arrangements for someone else to care for you, the health care power of attorney then springs into effect. The person you designated then has full authority to direct your care, which includes the power to put you into a nursing home or other facility.

There are certain things you can do to help you maintain your independence as long as possible. 
• First and foremost, you should think long and hard about who you are granting health care decision-making rights to. The right person for the job is someone who is going to respect your wishes. Do not pick someone you do not trust absolutely because the nursing home decision is just one of many decisions they could be making on your behalf. 
• Talk with the person you have chosen to be your health care decision maker while you are still able to do so! They cannot follow your wishes if they do not know what they are. This can be a difficult conversation to have since nobody likes to think about being too sick or injured to take care of themselves, but it is critical to make time to have it. 
• If carefully drafted, and sufficiently funded, a living trust can protect you from unwanted admission to a nursing home even after you are no longer able to care for yourself or make decisions about your own care. With a trust in place, you can designate a trustee that will arrange and pay for your care out of trust assets in the exact manner you specify. So long as there are sufficient assets in the trust to pay for the care you require, you need not worry that you will be taken out of your home.

The knowledgeable attorneys at the Winters Law Firm have extensive experience with estate planning utilizing wills, trusts and various other tools that can help you carry out your wishes for the future. Call us today at (219)307-4373 to schedule a consultation. We are based in Valparaiso, Indiana, and serve clients throughout Northwest Indiana.

Friday, May 29, 2015

Elder Abuse in Indiana

What should I do if I suspect my elderly relative is being abused?

Until recently, elder abuse was something people didn’t really talk about. But over the past few years, Indiana has gotten serious about tackling this issue. In fact, Indiana is the only state that has tied its Adult Protective Services (APS) Program directly to its criminal justice system, allowing for easier prosecution of abusers.

The state investigates three different types of elder abuse reported to it:
* Physical Abuse: Any touching (battery) of a person in a rude and insolent manner.
* Neglect: The intentional withholding of essential care or service. Abandonment of an individual is also considered neglect.
* Exploitation: The intentional misuse of a person's property, person or services for financial gain.

If you suspect that your elderly relative is being abused, you can take immediate action by calling Indiana’s APS hotline at (800) 992-6978.

Unfortunately, despite the state’s best efforts, abuse continues. According to the Indiana Prosecuting Attorneys Council:
• Approximately 90 percent of abusers are family members - most often adult children, spouses, partners and others.
• 1 in 14 cases of elder abuse are never reported to the authorities.
• There are more than 5.1 million elders over 65 with some type of dementia and, of those, 50 percent experience some kind of abuse.
• It is estimated that $5.3 billion is added to the nation's annual health expenditures due to direct medical costs associated with violent injuries to older adults.
• It is estimated that in 2009, $2.9 billion was the annual financial loss by older victims of financial exploitation; a 12 percent increase from 2008.
Beyond calling the hotline, there are several things you can do to protect your loved ones as they age. 

First, don’t be afraid to investigate if you suspect abuse is occurring. Be sure to document your findings by taking pictures, writing down important dates, and generally getting as much information down on paper as possible. This can often be awkward since abusers are often family members, but it is important.

At the Winters Law Firm, we regularly help families protect their elder relatives, or themselves, by designating appropriate guardians, setting up trusts and putting other safeguards into place that limit the opportunities for abuse. Our experienced elder law attorneys can advise you about what steps to take. We are based in Valparaiso, Indiana, and we serve clients throughout Northwest Indiana. Call us today at (219)307-4373 to arrange a consultation.

Thursday, May 28, 2015

Why Your Will is Not the Right Place for Your Funeral and Burial Instructions

How should I communicate my wishes about my funeral and burial to my family?

Many people have very specific wishes about what they want their funeral to be like and what they want to happen to their body after they die. A very common misconception is that those wishes should be included in your will.

Putting your funeral plans and burial wishes in your will almost guarantees they will not be followed. Family members often do not look at the will until after the deceased has been buried. Sometimes wills are not easily found. Access might be difficult because the deceased kept the will at the bank in a safety deposit box (unless you share access to the lock box, this is not a good place for your will). 

So, if you have specific plans for your funeral and remains, what should you do? First and foremost, talk to your loved ones about what your wishes are. This is often an uncomfortable conversation to have, but it is an important one. Telling your family what you want to happen will help them. Second, you should put your wishes into writing. This reduces the chance that your desires will be ignored, misremembered or forgotten completely. We recommend that you then store this document in a secure, yet easily accessible, location where you have told your loved ones it can be found.

The experienced estate planning attorneys at Winters Law Firm can assist you with any question you have about what many find to be a difficult topic. Call us today at (219)307-4373 to schedule a consultation. We are based in Valparaiso, Indiana, and serve clients throughout Northwest Indiana, including Porter County, Lake County, Newton County, Jasper County and La Porte County.

Wednesday, May 27, 2015

4 Items to Bring to Your Initial Estate Planning Consultation

How can I prepare for creating an estate plan?

For most people, a trip to their attorney’s office is as about as welcome as a root canal. We get it. We know you would rather be doing almost anything else with your time. So, we’ve put together this list of four items you should bring to your first estate planning meeting in order to shorten the amount of time you will spend at our office.

1. A general idea of what you hope happens to your family and your property after you die.

Most people make an estate plan because they want to ensure that their family members are taken care of after they are gone. Beyond that, what other goals do you have? Reducing taxes? Ensuring your business is able to continue operating without you? Preserving your legacy?

We cannot write a plan to fit your needs and desires if you don’t know what it is you want. Once we know what goals you have in mind, we can begin to put a plan into place that will make your vision a reality.

2. A list of the family, friends and organizations you would like to include in your estate plan.

Most people have already started thinking about who they want to inherit particular special items. That’s great! But it is only a small part of what you should be thinking about before coming to your first estate planning meeting at our office. 

You should also be thinking about:
• Who is going to care for your children if you die unexpectedly?
• Who would you like to make medical decisions for you?
• Will that same person be in charge of your finances?
• Who is going to be in charge of following the instructions you leave?
• Who would you select as a back-up if your first choice for any role is unable or unwilling to do what you ask?
Ideally, you will have spoken to all of the people you are considering giving a role to or passing items on to in order to double check that they are on board with your plan before you come into our office. At the very least, make sure you have the full names, addresses and other contact information for each person and organization you plan to name in your estate plan.

3. A list of large assets that will need to be taken care of in the plan.

Many of our clients are surprised by how large their estate is. It is not because we are finding hidden assets or long lost inheritances, it is because they have never put together a full list of all the items that actually make up their estate.

A good indication that something belongs in your estate is that you had to fill out paperwork when you bought it or set it up. Property, cars, bank accounts, insurance policies, retirement accounts, season tickets to the Colts - all of these are examples of the types of items you should be listing.

4. An open mind and a positive attitude. 

Thinking about death is hard. Nobody wants to do it. Nobody enjoys doing it. But it is something that needs to be done. Preparing yourself to face this task emotionally is just as important as getting your paperwork in order. 

The experienced Winters Law Firm estate planning team is ready to help you with every step of planning for your family's future. We are based in Valparaiso, Indiana, and we serve clients throughout Northwest Indiana. Call us today at (219)307-4373 to arrange a consultation.

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