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Elder Law and Financial Strategies: Planning for Later Life. - Product Image

Elder Law and Financial Strategies: Planning for Later Life.

  • ID: 2128001
  • November 2014
  • Region: United States
  • 1124 Pages
  • ALM Media, LLC

The elderly face a host of legal, financial and health care issues as they enter a new stage of life. Elder law attorneys and other advisers to the elderly must be able to address a broad range of social, psychological and financial needs of their clients, as well as their legal needs.
Elder Law and Financial Strategies: Planning for Later Life is a comprehensive, multi-disciplinary guide to this demanding area of practice. It goes far beyond Medicaid planning to offer guidance on questions involving housing options, guardianship, property and health care management, abuse and financial exploitation of the elderly, as well estate planning and retirement planning.

The book covers federal as well as state-specific laws affecting the elderly and includes many essential forms for financial, health care, and estate planning, with detailed drafting tips. Whether you are working on a specific legal or financial question or bringing in specialists in other disciplines to help you handle a client's requirements, this comprehensive guide will enable you find solutions and act as effective quarterback of an overall plan.

PART I
INTRODUCTION TO PLANNING FOR THE ELDERLY

CHAPTER 1
Advising the Elderly Client
- 1.01 An Example of an Initial Appointment
- 1.02 A Multi-Disciplinary Approach
- 1.03 A State-Specific Practice With a Federal Overlay
- 1.04 Needs and Concerns of the Elderly Client
[1] Retirement
[2] Health Care
[3] Being Remembered
- 1.05 Tailoring Advice to the Specific Client

CHAPTER 2
Assessment of the Elder's Needs
- 2.01 Articulating the Concerns of the Elderly
- 2.02 Gathering the Necessary Background Information
- 2.03 Ethical Dilemmas when the Background Information is Provided by Someone Other than the Client
- 2.04 Geriatric Assessment
- 2.05 Form: Master Intake

CHAPTER 3
Ethical Concerns
- 3.01 Identifying the Client
[1] Checklist of Factors in Identifying the Client
[2] Identifying the Client: Hypothetical Case Studies
- 3.02 Conflicts of Interest
[1] Intergenerational Conflicts
[2] Inter-spousal Conflicts
- 3.03 Confidentiality
- 3.04 Dealing with Diminished Capacity
[1] Capacity Assessment Algorithm for Lawyers
[2] Assessing the Client for Diminished Capacity: Hypothetical Case Studies

PART II
TOOLS AND TECHNIQUES OF PLANNING FOR INCAPACITY

CHAPTER 4
Informal Methods
- 4.01 Joint Ownership
- 4.02 Financial Institution's Form Power of Attorney
- 4.03 Representative Payee

CHAPTER 5
Revocable Living Trusts
- 5.01 Creation and Basic Requirements
- 5.02 Use as an Incapacity Planning Device: Discussion of Form
[1] Selection of Successor
[2] Defining and Determining Incapacity
[3] Powers of Trustee When Settlor Is Incapacitated
[4] Form: Revocable Living Trust Language to Address Incapacity Issues
- 5.03 Coordination with Durable Power of Attorney
- 5.04 Tax Consequences

CHAPTER 6
Durable Powers of Attorney
- 6.01 Introduction and Background
- 6.02 Differences Among General Durable Powers of Attorney and Other Methods of Incapacity Planning
[1] Comparison With Informal Planning Mechanisms
[2] Comparison With Revocable Living Trusts
[3] Comparison With Guardianships
- 6.03 Elements of a Durable Power of Attorney
[1] Principal
[2] Agent
[3] Enumerated Powers
[4] Effect of Incapacity of Principal
- 6.04 Third PARTy Acceptance of Durable Powers of Attorney
- 6.05 Revocation and Termination
[1] By Death of the Principal
[2] Revocation by Other Means
- 6.06 Durable Power of Attorney Drafting
[1] Discussion of Form
[2] Form: Durable Power of Attorney

CHAPTER 7
Health Care Directives
- 7.01 Self-Determination in Medical Treatment
- 7.02 Constructing Advance Directives
[1] Three Types of Forms
[2] The Legal Basis for Advance Health Care Directives
[3] The Advantages and Limitations of Advance Directives
[4] Drafting Issues for the Advance Directive
[5] Do-Not-Resuscitate Orders (DNRs)
- 7.03 Surrogacy Statutes: When There Are No Medical Instructions
- 7.04 The Countervailing Interests of the State and Medical Providers
[1] The State
[2] Medical Providers

CHAPTER 8
Guardianship and Conservatorship
- 8.01 Overview
[1] Creature of State Law
[2] Variations in Language and Procedures
[3] Advantages and Disadvantages of Guardianship
- 8.02 Elements of a Guardianship
[1] Incapacitated Person
[2] Evidence of Incapacity
[3] Due Process
[4] Guardian
[5] Representation of the PARTies
- 8.03 Appointment Process
[1] Preparing and Filing the Petition
[2] Types of Petitions
[3] Contested Petitions
- 8.04 Supervision of Guardian
[1] Guardianship Plan
[2] Personal Status Report
[3] Inventory
[4] Accounting
[5] Sanctions
- 8.05 Rights of the Ward
[1] Retained Rights
[2] Removed Rights
[3] Delegated Rights
- 8.06 Interstate Jurisdiction Problems
[1] Initial Jurisdiction
[2] Interstate Recognition
[3] Transfer

CHAPTER 9
A Failure of Incapacity Planning: Abuse, Neglect, and Financial Exploitation of the Elderly
- 9.01 Introduction
- 9.02 Important Factors in Analyzing State Statutes
[1] Organizational Schemes
[2] Statutory Remedies
[3] Defining the Protected Class
[4] Coverage in Domestic and Institutional Settings
[5] Reporting Elder Abuse and Ethical Issues
- 9.03 Relevant Federal Statutes
- 9.04 Risk Factors and Indicators of Elder Abuse
- 9.05 Financial Exploitation and Consumer Fraud Distinguished
- 9.06 Types of Financial Exploitation
[1] Traditional Theft Offenses
[2] Fiduciary Abuses
[3] Undue Influence

CHAPTER 10
Fundamental Issues in Retirement
- 10.01 Emerging New Perspectives on Retirement
- 10.02 The Financial Risks of Retirement
[1] Inflation
[2] Longevity
[3] Health Care Costs
[4] Financial Investment Risk
[5] Client Psychology
- 10.03 Planning for Lifetime Income: A Checklist for Retirement Planning
[1] Visualizing Retirement
[2] Estimating Expenses
[3] Taking Inventory of Income and Net Worth
[4] Comparing Essential Expenses with Predictable Income
[5] Taking Appropriate Action
[6] Performing Regular Check-Ups
- 10.04 Forms
[1] Attitudes and Expectations About Retirement
[2] Cash Flow Statement (Budget)
[3] Statement of Financial Condition (Net Worth)

CHAPTER 11
Managing the Retirement Portfolio
- 11.01 The Goal of Portfolio Management
- 11.02 Determining a Reasonable Withdrawal Target
- 11.03 Balancing Expected Portfolio Return Against Risk of Loss
[1] The Risk/Return Trade-Off
[2] The Benefits of Diversification
- 11.04 Types of Investments to Diversify a Portfolio
[1] Stocks
[2] Bonds
[3] Cash
[4] Aggregate Investments: Mutual Funds and Their Alternatives
[5] Options: Writing Covered Calls
- 11.05 Summary and Conclusion

CHAPTER 12
The Role of Annuities in Retirement Planning
- 12.01 Annuity Basics
[1] Straight Life vs. Term Certain Payment
[2] Fixed vs. Variable Annuity Earnings
[3] Immediate vs. Deferred Payment
[4] Qualified vs. Non-Qualified Annuities
[5] Special Types of Annuities
- 12.02 Annuitization Strategies Regarding Immediate Annuities
- 12.03 Addressing an Unsuitable Deferred Annuity Situation
[1] Financial Initiatives
[2] Legal Advocacy

CHAPTER 13
Social Security and Other Pensions
- 13.01 History, Law, and Administration of Government Retirement Programs
[1] Social Security Retirement
[2] Railroad Retirement
[3] Federal Civil Service Retirement
[4] Other Public Sector Retirement
- 13.02 Social Security Retirement Benefits
[1] Retirement Benefits for Workers
[2] Spouse's, Dependents', and Survivors' Eligibility for the Worker's Retirement Benefits
- 13.03 Strategies for Maximizing Social Security Retirement Benefits
[1] Taking Retirement Benefits Early
[2] Taking Delayed Retirement Benefits
[3] Spousal Cases
- 13.04 Maximizing the Benefits of Defined Benefit Pensions
[1] The Law Governing Defined Benefit Plans
[2] The Choice of Annuity vs. Lump Sum
[3] The Choice of Straight Life vs. Survivor Annuities

CHAPTER 14
The Home as a Retirement Resource
- 14.01 Home Equity Lending
[1] Home Equity Loan
[2] Home Equity Line of Credit (HELOC)
- 14.02 Intra-Family Transactions
[1] Sale and Leaseback
[2] Sale of a Remainder Interest (with Retained Life Estate)
- 14.03 Reverse Mortgages
[1] The Basic Concept
[2] Types of Federally Insured Reverse Mortgage Programs
[3] Prudent Uses of Reverse Mortgages
[4] Comparison of Home Equity Conversion Mortgage (HECM) with Home Equity Line of Credit (HELOC)
[5] Predatory Reverse Mortgage Lending
[6] Effect on Public Benefits

CHAPTER 15
Management and Taxation of Qualified Retirement Plans
- 15.01 Types of Qualified Retirement Plans
[1] Employer Defined Contribution Plans
[2] Individual Plans
- 15.02 Distribution and Taxation of Qualified Plan Benefits
[1] Payment of Benefits
[2] Income Taxation of Benefits
[3] Rollovers of Benefits
[4] Required Minimum Distributions
- 15.03 Strategies to Minimize Tax and Maximize Returns
[1] Rollovers of Qualified Retirement Plans to Traditional IRAs
[2] Traditional IRAs vs. Roth IRAs
[3] The Decision to Convert to a Roth IRA
[4] Tax-Efficient Allocation of Retirement Assets
[5] Tax-Efficient Withdrawal Strategies

CHAPTER 16
Income Tax Issues
- 16.01 Income Tax on Savings and Investment Income
[1] Capital Gains and Losses
[2] Qualified Dividend Income
[3] Municipal Bonds and United States Government Securities
[4] Taxation of Social Security Benefits
[5] Life Insurance
- 16.02 Income Tax and Health Care Issues
[1] PART B Medicare Premium Surcharges and Other Medicare Taxes
[2] Medical Expense Deductions
[3] Taxation of Compensation for Personal Illness and Injuries
- 16.03 Tax Benefits for Family Caregivers
[1] Dependency Exemption
[2] Head of Household Filing Status
[3] Paying the Elder's Medical Expenses
[4] Dependent Care Credit
- 16.04 The Home as a Tax Shelter
[1] Exclusion of Capital Gain on Home Sales
[2] Home Buyer Tax Credits
- 16.05 Final Tax Returns of Decedents

PART IV
PLANNING FOR LONG-TERM CARE

CHAPTER 17
Financing Long-Term Care: Which Path to Choose?
- 17.01 Introduction
[1] What is Long-Term Care?
[2] The Costs and Risks of Long-Term Care
- 17.02 Financial Planning for Long-Term Care
- 17.03 Using the Client's Own Resources to Self-Finance Care: Preliminary Issues
- 17.04 An Introduction to Long-Term Care Insurance
- 17.05 Government Programs
- 17.06 Roadmap to Financing Long-Term Care

CHAPTER 18
Strategies for Self-Financing Long-Term Care
- 18.01 Introduction
- 18.02 Hypothetical Case Studies
[1] One Member of a Married Couple Requires Nursing Home Care
[2] Self-Financing Combined with Long-Term Care Insurance
[3] Paying for Care at Home
- 18.03 Investment Techniques to Make Self-Financing Work

CHAPTER 19
Long-Term Care Insurance Strategies
- 19.01 Types of Long-Term Care Insurance Policies
[1] Individual, Stand-Alone Coverage
[2] Individual, Combination Products
[3] Group Coverage
- 19.02 Choosing a Carrier
- 19.03 Methods of Benefit Payment
- 19.04 Long-Term Care Insurance Coverage
[1] Nursing Home Coverage
[2] Assisted Living Facility (ALF) Coverage
[3] Home Care Coverage
- 19.05 Benefits and Benefit Triggers
[1] Activities of Daily Living (ADLs)
[2] Variations in the Payment of the Daily Benefit
[3] Duration of Benefits
[4] The Waiting (Elimination) Period
[5] Inflation Protection
[6] Shared Benefits
- 19.06 Premiums and Premium Increases
- 19.07 Long-Term Care Insurance Comparative Analyses
[1] LTCI vs. Self-Financing (Hypothetical Case)
[2] LTCI vs. Life Insurance
- 19.08 State Long-Term Care Insurance Medicaid partnership Programs
- 19.09 A National Long-Term Insurance Program: The “CLASS Act”

CHAPTER 20
The Medicaid Program and Medicaid Planning
- 20.01 Overview of the Medicaid Program
[1] Legislative Beginning and Administrative Background
[2] Covered Groups
[3] “Spend Down” vs. “Income Cap” States
- 20.02 Financial Eligibility
[1] Income Standard in Section 209(b) States
[2] Resource Standard in Section 209(b) States
[3] Income Standard in SSI States
[4] Resource Standard in SSI States
- 20.03 Protection from Spousal Impoverishment
[1] Treatment of Income
[2] Treatment of Resources: The Community Spouse Resource Allowance (CSRA)
[3] The “Income First” Rule
[4] Appeals of Spousal Impoverishment Determinations
[5] Spousal Refusal
- 20.04 Transfers of Assets
[1] History of the Transfer Penalty Rules
[2] Application of the Transfer Penalty Rules
[3] Exceptions to the Transfer Rules
- 20.05 Medicaid Rules Regarding Trusts
[1] Testamentary Trusts
[2] “Sole Benefit” Trusts
[3] Special Needs Trusts
[3A] The Interplay Between “Sole Benefit” and Special Needs Trusts
[4] Qualified Income (“Miller”) Trusts (QITs)
[5] Pooled Trusts
[6] Irrevocable, Income-Only Trusts (IIOTs)
- 20.06 Treatment of Certain Assets Under the DRA
[1] The Home
[2] Annuities
[3] Certain Life Estates
[4] Promissory Notes, Loans, and Mortgages
[5] Continuing Care Retirement Community (CCRC) Entrance Fees
- 20.07 Liens and Estate Recoveries
[1] History and Introduction
[2] Hardship Waivers
[3] Definition of the Recoverable Estate
- 20.08 Medicaid Applications and Appeals
[1] Applications
[2] Appeals
- 20.09 Medicaid Planning
[1] Initial Considerations
[2] Debt Payoff Strategies
[3] Strategies to Convert Countable Resources to Exempt (Excluded) Resources
[4] Strategies to Make Assets Unavailable
[5] Strategies to Convert Countable Assets to Allowable Income
[6] Transfer Strategies
[7] Interstate Medicaid Planning Opportunities
- 20.10 Hypothetical Case Studies
[1] Medicaid Planning for a Married Couple
[2] Medicaid Planning for an Unmarried Individual
[3] Wait-and-See Medicaid Planning
[4] Wait-and-See Planning Contrasted with Crisis Planning

CHAPTER 21
Supplemental Security Income
- 21.01 Overview of Supplemental Security Income (SSI) Program
[1] Legislative Beginning and Administrative Background
[2] Covered Groups
- 21.02 Financial Eligibility
[1] Income Limits
[2] Resource Limits
- 21.03 Transfers of Resources
[1] History
[2] Comparison With Medicaid's Transfer Penalty Rules
[3] Planning Opportunities Using the Transfer Rules
- 21.04 SSI Rules Regarding Trusts
- 21.05 SSI Applications and Appeals
[1] Applications
[2] Appeals

CHAPTER 22
Using Trusts in Long-Term Care Planning
- 22.01 Introduction
- 22.02 The Issue of Unavailability
- 22.03 Third PARTy Trusts vs. Self-Settled Trusts
- 22.04 Other General Considerations
[1] Preliminary Matters
[2] Trust Ownership of Critical Assets
[3] Permissible Trust Distributions
[4] Selection of the Trustee
[5] Reporting Requirements
[6] Termination Before the Beneficiary's Death
- 22.05 Testamentary Trusts
[1] Typical Situations When a Testamentary Disability Trust is Used
[2] Tax Considerations
[3] Form: Testamentary Disability Trust
- 22.06 “Sole Benefit” Trusts
[1] Typical Situations in Which a “Sole Benefit” Trust is Used
[2] Tax Considerations
[3] Form: “Sole Benefit” Disability Trust
- 22.07 Self-Settled Special Needs Trusts
[1] Statutory Elements of the Self-Settled Disability Trust
[2] Typical Situations in Which a Payback Trust is Used
[3] Considerations When Preserving Personal Injury or Other Tort Recoveries
[4] Tax Considerations
[5] Combinations of Other Distribution Vehicles with Special Needs Trusts
[6] Form: Self-Settled Special Needs Trust
- 22.08 Pooled Trusts
- 22.09 Irrevocable Income-Only Trusts

CHAPTER 23
Veterans' Benefits
- 23.01 Overview of VA Long-Term Care Benefit Programs
- 23.02 Improved Pension
[1] Eligibility Requirements
[2] Basic Benefits
[3] Improved Pension Ratings
[4] Relationship of the Improved Program to Other Benefits
[5] Long-Term Care Planning Strategies Utilizing VA Pensions
- 23.03 Service-Connected Compensation
[1] Compensation to the Veteran
[2] Dependency and Indemnity Compensation (DIC)
- 23.04 Health Care Benefits
[1] Veterans
[2] Dependents and Survivors
[3] Medicare-Eligible Veteran Retirees and Their Dependents and Survivors
- 23.05 VA Applications and Appeals

CHAPTER 24
Medicare
- 24.01 Overview of the Medicare Program
[1] Legislative Beginning and Administrative Background
[2] Covered Groups
[3] Enrollment in Medicare
[4] Medicare Savings Program
- 24.02 PART A
[1] The Beneficiary's Costs
[2] Coverage Related to Long-Term Care
[3] Appeals
- 24.03 PART B
[1] The Beneficiary's Costs
[2] Coverage Related to Long-Term Care
[3] Appeals
- 24.04 PART C (Medicare Advantage)
- 24.05 PART D
[1] The Financial Considerations of Enrollment
[2] Choosing a PDP
[3] Appeals
- 24.06 Medicare Supplemental Insurance

CHAPTER 25
Social Security Disability Benefits
- 25.01 Overview of Social Security Disability (SSD)
[1] Law and Administration of the Program
[2] Relationship of SSD to Other Programs
- 25.02 Coverage of the Disabled Worker
[1] Disability Insured Status
[2] Definition of Disability for Social Security Purposes
[3] The Waiting Period
[4] Disability Benefits for Workers
[5] Factors That May Affect SSD Benefits
- 25.03 Coverage of Other Beneficiaries
[1] Spouses and Divorced Spouses
[2] Widowed and Surviving Divorced Spouses
[3] Children and Surviving Children
[4] Surviving Parents
- 25.04 Applications and Appeals

PART V
HOUSING ARRANGEMENTS FOR LONG-TERM CARE

CHAPTER 26
Aging in Place and Other Independent Living Options
- 26.01 Introduction
- 26.02 Checklist of Concerns for Living Independently
- 26.03 Considerations When Aging in Place
[1] Physical Hazards
[2] Sources of Financial Assistance When Aging in Place
[3] If Care Is Needed While Aging in Place
- 26.04 If the Client Lives in Federally Assisted Housing
[1] Historical Background of Federally Assisted Housing
[2] Eligibility for Sections 8 and 202 Programs
[3] Federally Assisted Housing and the Uses of Trusts

CHAPTER 27
Semi-Independent Living Options
- 27.01 Introduction
- 27.02 Assisted Living Facilities (ALFs)
[1] Definitions and Standards
[2] Regulation and Licensure
[3] Reliance on Contracts
[4] Other Issues Concerning Assisted Living
[5] Costs of Assisted Living and Their Tax Deductibility
- 27.03 Continuing Care Retirement Communities (CCRCs)
[1] Issues Prior to Admission
[2] Issues After Admission
[3] Eviction From a CCRC
[4] Financial Planning Considerations for Residents of CCRCs

CHAPTER 28
Nursing Homes
- 28.01 Background of Nursing Home Regulation
- 28.02 Nursing Home Residents' “Bill of Rights”
- 28.03 Standards of Care
- 28.04 Issues Concerning Admission and Readmission
[1] Admission Contract Issues
[2] Discrimination in Admission
[3] Bedholds and Readmission
- 28.05 Issues Concerning Transfers and Discharges
[1] Background
[2] Legal Requirements for Transfer or Discharge
[3] Transfer or Discharge for Nonpayment
- 28.06 Remedies for Residents
[1] Private Rights of Action
[2] Possible Waiver of Rights via Arbitration Agreements

PART VI
LEAVING A LEGACY

CHAPTER 29
Estate Planning: The Basics
- 29.01 Client Perceptions of Estate Planning
- 29.02 Titling of Assets and Transfer of Ownership
[1] Joint Tenancy with Rights of Survivorship (JTWROS)
[2] Transfer of Ownership by Contract
[3] Trust Ownership
[4] Probate Assets
[5] Income Tax Basis of Assets Transferred at Death
- 29.03 Federal Estate and Gift Taxation
[1] Calculating the Estate Tax
[2] Generation Skipping Transfer Tax (GSTT)
[3] The Gift Tax
- 29.04 Using the Federal Transfer Tax Exemptions and Exclusions
[1] The Estate Planning Threshold
[2] The Most Efficient Transfer Tax Planning is Based on Lifetime Gifts
- 29.05 Economic and Actuarial Considerations of Various Transfer Tax Planning Mechanisms
[1] The Impact of Interest Rates
[2] The Impact of Life Expectancy
[3] The Impact of Appreciation in the Value of the Transferred Property (Past and Future)
[4] Selected Estate Planning Transfer Mechanisms

CHAPTER 30
Estate Planning in and for Special Circumstances
- 30.01 Multiple Marriage Situations
- 30.02 Naming Beneficiaries of Retirement Accounts
[1] Date of the Account Owner's Death
[2] Identity of the Beneficiary
[3] Stretching the IRA Over Multiple Generations: General Principles
- 30.03 Clients Who Are Charitably Inclined
[1] Charitable Remainder Trusts
[2] Charitable Gift Annuities
[3] Charitable Lead Trusts
[4] Charitable Gifts With Retained Life Estates
[5] The Wealth Replacement Trust
- 30.04 Estate Planning for Unmarried PARTners
- 30.05 Planning for Pets
- 30.06 Transfers to Minors
[1] Uniform Transfers to Minors Act (UTMA) and Uniform Gifts to Minors Act (UGMA)
[2] Trusts for Minors
- 30.07 Transfer Tax Planning for Terminally Ill Persons
- 30.08 Transfers to Disabled Beneficiaries and Others with Special Concerns
- 30.09 Gathering Information for Estate Planning
- 30.10 Form: Estate Planning Questionnaire

INDEX

Jerry A. Hyman



Jerry A. Hyman maintains a practice in both elder law and financial planning in Hockessin, Delaware. A member of the National Academy of Elder Law Attorneys (NAELA) since 1992, and a certified financial planner professional since 1990, he integrates the law with financial planning principles to best serve the needs of the elderly. His experience includes management of the tax and estate administration sections of a major bank trust department, and he was the tax manager at a certified public accounting firm.

Mr. Hyman has written articles for The ElderLaw Report and is a frequent speaker before groups of lawyers, accountants, financial planners, medical professionals, social workers, and the general public on various elder law topics, and estate, retirement, and Medicaid planning.

In addition to his membership in NAELA, Mr. Hyman is a member of the Financial Planning Association and is admitted to practice law in Delaware and Pennsylvania. In both states he is a member of the bar association committee (or section) on elder law, and has chaired the Elder Law Committee of the Delaware State Bar Association. Mr. Hyman is also a Registered Investment Advisor, specializing in the management of assets for retired persons, and holds the CFP® designation in financial planning.

Mr. Hyman received his A.B. degree from Rutgers University, his J.D. degree from the University of Wisconsin School of Law, and his L.L.M. degree in taxation from Temple University Law School.

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