Nugen Law; specializing in estate planning and elder care law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.

good evening.

>> I'm Sandy Thomson, the host of this show which is called LIFE Ahead and we call it that because what we do here is to try to provide you with education and information on various topics to help you make choices that you have to make in your LIFE Ahead, get it to get it right.

>> This is Brian Nugent.

You probably know him if you watch us regularly.

Brian is an elder law attorney and he's on here very often to talk about legal issues.

And I will tell you by the way, you see a phone number down here at the bottom of the creen and one of the thingse love is to take phone calls from you.

>> This is really your show.

I just sit here and ask him questions until you call in with your topics but we encourage you to give us a call here (969) 27 twenty Brian will help you out with your legal issues and if you would if you just like stay on the phone and talk to us Flybe that's the best because if you have or if Brian has a question back to you, you're still right there on the phone that he can he can hear you and you can hear him.

But if you're not comfortable with that, that's OK. We have a phone operator in the control room and they will take the calls initially and they'll be very happy to take your question and type it up and send it out here to the studio to me on the teleprompter and then I'll ask Brian you'll take questions from of course.

>> All right.

Yeah.

It makes it more fun for Sandy myself and I think other audience members as well as Colonie.

>> Exactly.

And our main topic tonight is kind of a generic one because Brian's been on some so many times and we've talked about a lot of different legal issues but sometimes you just need a little refresher and that's I'm thinking if this is kind of a pop quiz tonight that's fair.

>> I'm ready.

OK, we're going to talk about legal terms terminology that we've used here often on the show as we've had legal discussions and kind of refresh me in you about what that terminology means.

We talked about this some last month and we're going to continue that conversation.

>> OK, Brian, let's talk about we have a list here.

Let's talk about first of all differences between Medicare and Medicaid that can be very confusing.

>> I wish they were the names were so different it would be easier to remember even sometimes I'll say Medicare what I intend to say Medicaid and vice versa Medicare is a program that everyone is entitled to as they age.

It could be if you have a special needs or you're a little bit younger and have some some issues you could be on Medicare a little bit earlier but generally as we age we are all able to apply for Medicare and Medicare is a program that it's like an insurance in essence it provides payment for your doctor's appointments could provide depending upon what plan you have it could provide payment for prescriptions and so we all are entitled to Medicare as we age Medicaid is it's a government it's a governmental program to which we're all entitled.

That's right.

We pay into as we're working we pay into a governmental fund that provides Medicare for all of us and as you hit a certain age you're able then to apply to be a Medicare recipient and when you go to the doctor you provide your Medicare card as opposed to just an insurance card that you may have had when you were working when you were younger that may have been supplied through your employer or if you were privately insuring yourself that it would take place of that card.

>> Now Medicaid is a very different program.

Medicaid is a needs based program.

>> So first depending upon what where you are in the spectrum of your age, there are different types of Medicaid programs for you as you age.

But generally Medicaid is based upon your needs.

What type of assets do you have?

What type of income do you have and if your assets are below a a certain threshold and if your income is below a certain threshold you're able to receive Medicaid and typically in the arena of an elder law attorney we are looking for Medicaid benefits in order to provide payment for someone's care.

Is there aging and maybe become infirm so Medicaid could pay for an attendant to come to your home to actually provide one on one care for you like a home health care could be home health ?

>> Well, so we attendant care is different than home health .

Oh OK.

I didn't know that.

Yeah so home health is typically paid for through Medicare.

Medicaid would pay for a direct hands on caregiver for you so Medicaid may pay for in your home someone to could be cleaning your home could be doing your laundry, could be preparing a meal for you but really the focus is on things like your personal care.

So if you needed assistance with taking a shower or bathing, if you needed assistance with being reminded to take medication, if you needed assistance with getting up in the morning and dressed and getting your day started if you needed assistance using the restroom, those attendants would help with all those activities of daily living that you may need to be able to say successfully in your home.

So as I say in the arena elder law we're looking at folks that may work getting folks ready for Medicaid.

We're getting folks on Medicaid so they can get that care in the home.

Medicaid doesn't just pay for care in one's home.

Medicaid could also pay for a stay at something called an assisted living facility assuming that the assisted living facility also called an alef if that RLF accepts Medicaid, Medicaid would pay for some or all of your state depending upon your income level.

And so at that assisted living facility you would have a roof over your head meals provided for you and an attendant there at that facility if you need them to provide assistance with those activities of daily living Medicaid also if you qualify also pays for nursing home stays it would pay for memory care unit stays again assuming that the facilities at what you're staying or living except Medicaid a majority do there are some that don't a majority do so Medicare to recap we go back over those two issues again Medicare is a program that's like an insurance program providing benefits for you for your health care Medicaid does that.

It also is much more robust and also provides payment for your person in providing care for you as you age could be in your own home, could be an assisted living facility, could be a nursing home or a memory care unit.

>> You know, if I you know, make sure that I understand it correctly.

>> Brian Medhat care you get those health care benefits like you you know, some help with, you know, different medical issues or prescriptions or whatever but don't most people buy an extra some assurance coverage either an Antje plan or a supplement so advantage traditional Medicare so advantage plan is more managed health care traditional Medicare is actually a little bit more robust, typically provides more benefits if you have a rehab stay at a nursing home you would pay for up to one hundred days of that rehab whereas an advantage plan may pay twenty days for your rehab.

What I would recommend to folks when you are going on Medicare or if you're already on Medicare.

So if you're going on Medicare for the first time there are ship counselors in the state of Indiana you could go yeah that's great.

>> Yeah yeah.

And they could walk you through and make recommendations as to what type what type of a supplemental plan that you should be a part of .

And then every year during the fall October , November maybe beginning of December there is something called open enrollment which gives you an opportunity to have your Medicare review and to see is it should I stay on the same plan that I'm on or should I should I deviate from that plan so they would be looking at other yourself or if you decide to reach out for assistance they would be looking at things like who is your doctor?

>> Where you receiving your care?

What type of medications are you on?

And then literally there's software that you can type that information into and then you it starts to narrow the options that are are best for you.

But I would strongly encourage folks that are on Medicare not to just continue year after year rolling it over the same plan that you've been on.

>> I would encourage our listeners to actively have their Medicare review done on an annual basis to make sure that you have the most appropriate plan in place.

I've seen clients that are paying a little bit too much and after having had a Medicare review they're saving saving money on a regular basis and an annual basis and getting care that's appropriate for them.

>> We don't want you to be buying more insurance and you need more insurance thing you need exactly right.

>> So you don't want to pay for a when you really need be and you're going to save yourself seven hundred dollars a year more.

>> Well I actually did that one time made it change and saved myself I think it's three or four hundred dollars a year.

>> Same company it was a right and advantage plan so it was additional insurance coverage to Medicare and I just simply reviewed that you can get a book, they can send you a booklet that you can compare all the different plans and it was like oh well this plan that I'm on has this this this and this which I have never use and probably never will use.

So what if I just switched to this plan which covers any anything that I likely need and so there I save some money just by reviewing a perfect example.

>> Yeah.

I'm not sure about the books coming out anymore.

It's typically online now but the local senior centers are going to be able to assist you with that.

They have volunteers that work as I say, ship counselors that will help with that.

But I would strongly encourage our listeners if they're looking for either getting on Medicare the first time or they're going through their annual open enrollment to take a good hard look at that supplemental plan.

>> Now aren't as I recall I think we've talked about SCHIP FHA type organization that helps people with insurance.

>> Don't they help with taxes too if you need or no, I'm not sure I'm happy.

Yeah, I don't know that they help with taxes if they do I'm not aware of that in there.

I'm familiar with them their capacity as assisting gas for that.

That's a state program that's paid for by the state and those folks go through training and they're paid independently through the state if I'm not mistaken, they're independent contractors, they're not employees and they're paid based upon the work that they perform and they're supposed to be doing so much education of the community.

I don't know if it's month or quarterly or annually but they also are actively involved in speaking engagements.

>> So clubs and organizations and things don't they aren't they often, Brian, maybe retired people that work in the insurance business or finance, is there something they want to keep doing something?

>> Yeah, I have seen ship counselors at all different age levels.

Oh OK. One that I typically use I would say is probably in their thirties so I don't think this individual is going to have a ready to be retired but it wouldn't surprise me that if that happens I do know of a ship counselor in a different county that is a retired educator and does an excellent job and is very well received.

>> So the moral of the story is then we now know the the difference between Medicare and Medicaid but maybe you need to do a little bit of research yourself to see what's right for you personally in and yet as Brian said, there are lots of programs where you can get some complementary assistance and advice as well.

OK, let's talk about let's see what's another term we've used probate if you now and I know that you do a lot of estate planning for for elder people as well.

>> What is probate mean and and is it true you hear people say I want to avoid probate.

>> Should you be working toward that or no?

Well, probate is the process whereby if I have a will or if I have passed away without a will and I have assets that are above a certain level for example in Indiana if I have assets above one hundred thousand dollars I need to go through the probate process in order to transition those assets to the individual or individuals that will be receiving them.

>> So if I have a will the attorney I suppose you could probate your own you know, a loved one's estate but but typically you'd be hiring an attorney.

>> The attorney would take the will to court, would spread they call it spreading the will of record and then ask for an estate to be opened if a person has died without a will, we have something called intestate succession and there's a statute that indicates who receives those assets if you haven't preplanned and made sure that you had a will in place so the probate process is whereby you you've open an estate either with or without a will.

The court will then issue something called letters letters testamentary or letters of administration depending upon whether or not you do have a will, you don't have a will and it's those letters that allow an individual to access the deceased person's checking account savings account 401k IRA a brokerage account.

So it allows that person to access those things.

It's telling the person that's holding the money it's OK to speak with you.

>> The court has appointed them and then the the personal representative, the executor that's representing the the beneficiaries of the estate, they're able to access that money.

>> They draw that money out.

They may put it into an estate checking account and then they're also advertising in the newspaper indicating if anybody believes that the deceased owed the money, they can file a claim in the estate.

Those claims need to be filed within 90 days, three months of the person's death here in Indiana and then if those claims are appropriate to be paid the executor personal representative pays them.

If they're not appropriate to be paid, they object.

You may have a hearing you may not have a hearing depending upon whether or not the claimant wants to fight that and then once those debts are satisfied, if an individual has a tax return that needs to be prepared, we file the tax return for both the deceased individual, possibly the estate depending upon what assets we had in the estate we may be selling real estate so we're liquidating those estate assets and then we're transferring it to those individuals that are appropriate beneficiaries.

>> So it could be that your spouse receives money or children receives money could also be that charitable entities maybe a religious organization that want to remember some an organization pthat sponsors a cause that you feel strongly about.

We were distributing those monies to those folks then when all that's distributed the attorney would request the court to close out the estate to close out that probate estate and then the individual is released from being the personal representative, the executor and everything's taken care of .

>> But to answer your question about avoiding probate, typically the reason that people want to avoid probate and frankly most attorneys are trying to assist their clients and avoiding probate if at all possible is that there's an expense that comes with it.

>> You have to pay the attorney.

You go through that probate that estate administration process.

It's also public.

So if somebody wants to be a nosy neighbor and look at the will and what the will said and who's getting this and who's getting that, they're able to do so and it takes time.

>> Estates are open six months, 12 months plus or minus.

That's not hard for an estate to be open a year and so when you're avoiding probate we're getting assets out in a different way.

Maybe there's a beneficiary designation on an asset or we're using a trust, et cetera.

If we can avoid probate or getting rid of that length of time before the money is distributed, we're getting rid of the legal expense, the advertising expense etc.

We're also keeping it more private so that the public can't see what you had put together in your estate planning.

So that's why you would normally want to avoid probate cost time and it's not public.

>> Right.

And yeah.

And if you're going before probate judge you you've got court costs, whatever exactly we have phone call here that I want to make sure we get answered for you.

This is Kathy .

Kathy Kathy has called in and here's what she said I had introduced to Brian as an elder law attorney and Kathy wants to know what is the benefit of having an elder attorney versus a regular attorney?

>> So it's a big question.

It's a big question.

But I think what you're asking, Kathy , is there are attorneys that do estate planning and their attorneys that do elder law and elder law and estate planning are very different.

>> So elder law well let me start with the estate planning .

Estate planning is you are strictly planning for what happens with your assets at the time that you pass away.

So I may write a will I may write a trust as an estate planning attorney and I don't see you for twenty years.

Thirty years and and we're done we may do a probate or rather we may prepare a power of attorney health care designation of waiver of those types of ancillary documents and elder law attorney does all of that and so much more so the elder law attorney not only is planning for what happens with your assets at the time of your passing, they're also looking at protecting assets during your lifetime as you either if you're a special needs person, supplemental needs person.

But we're also planning for as you age how do we protect assets and how do we get those benefits to provide payment for your care as you age the top of the show we were talking about Medicaid versus Medicare so an elder law attorney may be protecting your assets, sheltering those either in need the care and so once those assets are sheltered then it may be that that elder law attorney is securing benefits on your behalf to provide payment for your care for you as you age or as I say if you are a special needs person to have some other concerns that require some public assistance to provide care for you.

Not only would an elder law attorney be familiar with handling matters with Medicaid elder law attorneys are typically comfortable handling things with the Veterans Administration.

That's very common topic that comes up with our seniors as they age.

So to answer your question, Cathy, I would encourage you if you're looking for someone to do your estate planning I don't know where you are in the spectrum of life if you're a younger person or a more mature person.

But I would encourage you to maybe speak with an elder law attorney.

You know that you're going to-be planning in place.

But there would be a greater depth of knowledge about protection of assets, securing benefits for your age as you age and and should you need that help if you have some sort of ongoing medical issues and I know that I think we've talked before maybe when people have called in that a lot of maybe even young families, a young couple decides to go to an elder law attorney to get things in place like guardianship or you know, if they're going to be taking a long trip and they want to make sure that things are in line a power of attorney in case they need finances for the kids while they're gone, that kind of thing.

>> So elder law attorney it wouldn't mean that all of my clients need to be sixty five older oh heavens no.

An elder law attorney could have a client at eighteen could actually have could have a minor in a guardianship as you were alluding to Sandy .

So the term elder law attorney shouldn't suggest that if I'm not of a certain age that I can't use them.

What I'm saying is that estate planning there's a place for estate planning for sure.

But if you want a much more robust knowledge of estate planning benefits, protecting assets, assisting you as you go through the spectrum of life, you might consider using an elder law attorney I want to talk about trusts.

>> Yes.

Can we bring that up quite often?

And and you've talked about special needs trusts, all kinds of trusts, defined trusts and then the difference between irrevocable and irrevocable trust.

>> So I'd like to say that a trust is in essence a giant contract.

So you're saying I'm going to write this contract and the contract says inside the trust we're going to hold assets so an asset is a home could be an asset.

Life insurance policy could be an asset checking account savings account.

>> So anything of a value we're going to put that into the name of the trust and there are generally three categories of entities that are involved in those trusts.

We have someone called a settler granter trust maker.

That's the person that made the trust.

So that's the client normally coming to the attorney the next category would be someone called a trustee.

>> So the trustee is the person that's responsible for managing the assets in the trust and and applying the terms of that that trust that contract.

>> So if the and the third category is something called a beneficiary so who can benefit from or who can enjoy the money in that trust?

So the trustee is is investing reinvesting the money in that trust if there's if there's income that's being earned and the trust the contract says this beneficiary is supposed to receive that income the trustees responsibility would be to write a check or give the money either to the beneficiary or for the benefit of the beneficiary.

>> So in that trust would there be verbiage or written considerations like OK, the trustee can I mean they're giving out this money as needed but maybe you can specify when you set up the trust that grandson can only receive so much money when he's eighteen and so much more when he's twenty five that kind of thing.

>> So you as the writer of a trust so can make decisions the seller, the grant or the person that's that's having that trust prepared you can I I will say to clients dream big what is it that you want just say it say it and say to the attorney that you're working with your plain English.

This is what I want to get accomplished.

I want to make sure that it doesn't ruin my child.

My child says Oh I'm inheriting this money at twenty I'm going to drop out of college and live on this money.

So you may say well they're going to get the money at ages twenty five thirty thirty five over time to so they get multiple bites at the apple if they happen to spend the money on the first bite the second bite they may think second a little bit harder about it and not spend the money so quickly you so you could indicate that the money is to be used for your education.

The money is to be used for health care.

The money is to be used for a trip around the world.

Whatever you want to put inside that trust your attorney is going to prepare on your behalf.

Send it you'd ask me about the difference between revocable trusts and irrevocable trusts.

So trusts are a giant category and in general if you divide that category in half and you say one half are revocable on one half are irrevocable, irrevocable trust is like putty you can change, you can manipulate it.

>> You can get you can establish it today, get rid of it tomorrow and create it again on Friday.

So irrevocable trust is like putty you have you can do with it whatever you want to typically revokable trusts are used to avoid that probate that that estate administration process.

>> You'll generally hear the phrase living trusts or revokable living things.

Yeah, an irrevocable trust is the polar opposite of a revocable trust.

It's permanent set in stone can't be changed.

So we would use these types of trusts if we're looking at protecting assets so a third party couldn't get to those assets that they they it might protect you against litigation.

It might protect your assets from a nursing home stay and so those types of reasons that we would use irrevocable trusts and we have trusts for individuals that are special needs so that the money is put into that trust it can be used for their benefit but it doesn't prohibit them frm getting access to public benefits like Medicaid and that's you something you have to watch carefully and get legal advice on so you don't put them out of the category of getting some of that federal aid.

>> I'm so glad that you've all been with us tonight here for Life Ahead and we're here every Wednesday night at seven thirty.

We hope to see you again next week with a new topic.

Good night.

Stay safe.

Stay healthy law, emphasizing independence and quality of life.

Serving Indiana, Ohio, Michigan, and Florida.

More information at NugenLaw.com.