Medicaid Application and Elder Law Update – Governor Snyder’s Proposed Budget Includes Medicaid Funding for MIChoice Home and Community Based Waiver Program

Medicaid Application and Elder Law Update -

Governor Snyder’s Proposed Budget Includes Medicaid Funding for MIChoice Home and Community Based Waiver Program

Snyder’s budget proposal includes $11 million dollars earmarked to reduce the waiting list for elders waiting to be participants in the MIChoice Home and Community Based Waiver Program.  An additionaly $3.1 million dollars is also budgeted to bring Medicaid patients home or into community based care facilities rather than nursing homes.

Rygiel Sprague P.C. is a full service law firm providing families with guidance in Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Veteran Benifits (VA Planning), Probate Law. 

Building Wealth | Preserving Wealth | Passing Wealth on to your Heirs | Rygiel Sprague P.C. | Attorneys and Counselors

Permanent link to this article: http://www.michigan-elder-law-blog.com/2013/03/medicaid-application-and-elder-law-update-governor-snyders-proposed-budget-includes-medicaid-funding-for-michoice-home-and-community-based-waiver-program/


Medicaid – Governor Snyder supports expansion of the state’s Medicaid coverage under the Patient Protection and Affordable Care Act

Governor Snyder supports expansion of the state’s Medicaid coverage under the Patient Protection and Affordable Care Act (the “ACA“), which would cover about 450,000 uninsured citizens, allow as much as $2 billion in federal dollars to come into the state each year, create up to 13,000 jobs and increase tax revenue by $100 million dollars.  Michigan’s expansion of Medicaid would include individuals with income below one hundred thirty-three percent (133%) of the federal poverty level (currently it would includ individuals with income less than $15,300 a year).   One hundred percent (100%) of the increased costs would be born by the federal government until 2017, which would then gradually decrease to ninty percent (90%) of the increased costs until 2020. 

Rygiel Sprague P.C. is a full service law firm providing families with guidance in Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Veteran Benifits (VA Planning), Probate Law. 

Building Wealth | Preserving Wealth | Passing Wealth on to your Heirs | Rygiel Sprague P.C. | Attorneys and Counselors

Permanent link to this article: http://www.michigan-elder-law-blog.com/2013/03/medicaid-governor-snyder-supports-expansion-of-the-state%e2%80%99s-medicaid-coverage-under-the-patient-protection-and-affordable-care-act/


VA Attorneys Question & Answer – Veterans Administration provides a little known benefit to assist veterans and their surviving spouses with he cost of assisted living or in-home care


Q: What is this benefit called?

A: The benefit is referred to as Aid & Attendance or sometimes, the Improved Pension benefit. 

Q: Are there service requirements to qualify?

A: The veteran must have served at least 90 days of active duty with one day during a war time period.  The veteran must also have had a discharge other than dishonorable.

Q: What is the Maximum Annual Pension?

A: Currently, a single veteran can receive up to $1,644 per month, a veteran and their spouse may receive up to $1,949 per month, and a surviving spouse of a veteran could receive up to $1,056 per month.

Q: Do I have to have very limited assets in order to qualify?

A: No.  In fact, depending on the circumstances, a veteran and their spouse could have assets of approximately $80,000 and a single veteran or surviving spouse could have assets valued at $40,000. The VA does not count your homestead as part of these values.

Q: I/we have assets that exceed the asset limit, does that mean that we can’t qualify for assistance?

A: No. With proper planning and the assistance of VA Accredited attorney, or other qualified representative, a veteran or surviving spouse can become eligible for benefits.

Q: Are there any penalties with the Veteran’s Administration for transfers made to qualify for the benefit?

A: Unlike Medicaid, current Federal Law does not apply a “look back” or “penalty period” for gifts or transfers to qualify for the Aid & Attendance benefits. 

Q: Will I have to invest a large portion of my assets in Annuities in order to qualify for the Aid and Attendance benefit?

A: No.  While that strategy is employed by some organizations, it is not necessary to use annuities to qualify for VA benefits.

Q: Will I have to sell my home?

A: No.  A veteran and/or their spouse can retain a properly titled homestead and their vehicle along with the above noted asset limits.

Q: How long does it take for the VA to process an application for Aid and Attendance?

A: Once the application has been submitted it generally takes six to nine months to start receiving VA benefits.  However, the VA pays benefits retroactively back to the month after the application is filed, provided the applicant is still living.  

Q: Can I apply for VA benefits on my own?

A: Yes.  However, a VA Accredited Attorney may be able to identify issues that could delay or result in denial of your application and offer advice as to what you may be able to do to resolve certain issues prior to submitting your application.

Q: Who should I contact for more information?

A: The attorneys at Sprague Law Firm are VA Accredited Attorneys who are available to discuss VA benefits with you and your family.  You can also seek assistance directly from the Veteran’s Administration or local Veteran Services Officer.

Sprague Law Firm is the assumed name for the Law Offices of David D. Sprague P.C., a Michigan professional corporation (“Sprague Law Firm”) located at 35758 Harper Avenue, Clinton Twp, MI 48035.   Although the attorneys are “VA Accredited,” Sprague Law Firm is not affiliated with nor does it represent any government branch or entity of the United States Government or its Military

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/10/va-accredited-attorne-veterans-administration-benefit-to-assist-veterans-and-their-surviving-spouses-with-the-cost-long-term-care-assisted-living-in-home-care-nursing-home-retirement-home/


Tips for Prevention of Elder Abuse and Self Neglect in Seniors

Elder Abuse and self-neglect can present itself in various ways forms ranging from physical abuse, sexual abuse, psychological abuse, neglect, and financial exploitation.    If you suspect someone may be a victim of elder abuse of self-neglect here are just a few indicators to look for:

  1. Rashes, sores, malnourishment, dehydration or inadequate clothing;
  2. Refusal to take medications;
  3. The elder is not allowed to speak for themselves without the presence of the caregiver;
  4. Caregiver isolates family members from the person being cared for;
  5. Signs of helplessness, hesitation to talk openly, fear, withdrawal, depression, denial, agitation, anger confusion or disorientation in the person;
  6. Unusual or inappropriate activity surrounding investments or in bank accounts, including the use of ATM cards used in making large or repeated withdrawals;
  7. Power of attorney given or recent changes in or creation of a will or trust when the person is incapable of making such decisions;
  8. Missing personal belongings, such as art, silverware or jewelry;
  9. Unexplained injuries that don’t fit with the given explanation of the injury;
  10. Unexplained weight loss;
  11. Over medication.

These are just a few of the many red flags that concerned friends and family members should be aware of.  There are ways to assist seniors in avoiding these all too common abuses and those include: getting documents such as Durable Powers of Attorney, Patient Advocates, Wills or Trusts in order.  Assist with keeping the senior involved in community activities with a church or senior center, encourage the senior to discuss any possible donations with a trusted friend or family member before making such a decision.

Also, it is important to be nosy and involved with your family members and neighbors so if something seems inappropriate you may be able to recognize it.  Try to stay involved with the friends and family members by visiting as frequently as possible at random times.  Also, watch for signs of declining personal care, depression, loss of interest in daily activities or forgetfulness.

If you suspect someone you know may be the victim of elder abuse, contact Adult Protective Services  “APS” and file a report.  All information that is received by APS is kept confidential.

Macomb County APS                877-412-6109 or contact the Sheriff office at 586.469.5151

Oakland County APS                 866-975-5010

Wayne County APS                    313.963.6606

St. Clair County APS                   810.966.2000

You can also contact Michigan’s Vulnerable Adult Helpline 24 hours per day and 7 days per week at 800.996.6228.

If you have questions about any of these issues or about assisting a senior with establishing an estate plan feel free to contact the attorneys at Sprague Law Firm at 586.790.9600.

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/10/elder-law-attorneys-tips-for-prevention-of-elder-abuse-and-self-neglect-in-seniors-nursing-homes-assisted-living-retirement-homes-long-term-care-facilities/



As of October 1, 2011 the Department of Human Services has amended the Acknowledgements section of the Medicaid Application informing applicants of the applicability and reaches of Estate Recovery.  Until now, there were concerns that the Department of Human Services failed to comply with applicable law regarding the Notice Requirement to applicants of the possible application of Estate Recovery to their respective estates.  The placement of this notice on page 12 of the Application for Benefits attempts to alleviate the “notice loophole”.  Use of the new application will also serve to give notice of Estate Recovery to current recipients at the time of their annual Redetermination.

The October changes also included the addition of an additional question (#28) to the application regarding whether there exists a plan for the applicant to return home within six months of the date of application.  Under current Medicaid policy there is an exemption for the homestead provided that either (1) the owner intends to return to the homestead (2) the owner is in an LTC facility, a hospital, an adult foster care (AFC) home or a home for the aged or (3) a co-owner of the homestead uses the property as his home.  It is unclear from the Application itself whether the Department of Human Services is attempting to preclude the use of any one of the exclusions with this new question or to end around applicability of the Estate Recovery law to an applicants homestead.  For now, the question itself contradicts the language of the policy as the policy only requires “intent” while the question is seeking information regarding a “plan”.  As with many of these changes, time and experience will reveal the intent of the Department of Human Services and the effect of the changes on applicants.

To best protect yourself and your loved ones, it is very important to work with attorneys who focus their practice in this ever changing area of the law.  The attorneys at Sprague Law Firm are always available for consultation to discuss your situation, questions and concerns.

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/10/elder-law-attorneys-medicaid-takes-steps-to-comply-with-notice-requirements-regarding-estate-recovery-with-changes-to-the-medicaid-application/


Medicaid Questions and Answers About Long-Term Care, Qualifying for Medicaid, Estate Recovery, Gifting, Trusts & Denial of Benefits

Q: What is the difference between MediCARE and MediCAID, and doesn’t MediCARE cover a nursing home stay?

A: MEDICARE is your government health insurance. It covers medical expenses such as hospital and doctor charges. It has a limited benefit for a nursing home stay, but only if you were hospitalized for at least three days prior, require skilled nursing care, and are continuing to benefit medically (usually undergoing rehab of some type). Under those circumstances, you may be entitled to benefits (100 days, at the most, but usually much shorter).

Under any other circumstances, you’re on your own. MEDICARE does not pay for long-term care. MEDICAID, on the other hand, is the Federally funded, state-administered program designed to provide long-term care (nursing home and, depending on the particular state, other types of facilities or care), but only after the patient meets certain financial conditions.

Q: What types of long-term care does Medicaid cover?

A: Medicaid, depending on the particular state, covers the full range of long-term care, including nursing home, adult foster care, assisted living, as well as at-home care. Remember, Medicare is your Government health insurance, and, except for a limited benefit for skilled nursing care, does not cover long-term care. Medicaid, on the other hand, is the program that can provide benefits for long-term care.

Q: Do I have to be broke to get Medicaid?

A: Technically, yes! As a single person, you can only qualify for Medicaid benefits once your countable assets are below $2,000.00 (in Michigan).   It is possible to achieve this status with the assistance of attorneys whose practice includes proactive and reactive Medicaid planning.  With appropriate guidance it is generally possible to protect 50-60% of an individual applicant’s estate in addition to their home, car, funeral plan and burial space.  Additional assets may be protected if it is possible to do planning for an applicant’s disabled child.
Q: Will I have to sign over my home to Medicaid in order to get help?

A: No, you will not be required to sign over your home (or any other asset) to Medicaid in order to qualify. However, Michigan has implemented Estate Recovery and it is essential that certain steps be taken to keep an applicant’s home outside of the reach of Estate Recovery.

Q:  I am married, can’t I just put all of my assets in my spouse’s name and then apply?

A:  No!  There are asset limit rules even for married couples and even though it may be possible to protect 100% of a married couple’s assets and qualify the other for benefits, special steps must be taken in order to transfer assets through the appropriate vehicle. Typically, a special trust is drafted for this purpose. 

Q: Will transfer (or gifting) of assets result in denial of Medicaid benefits?

A: The transfer of assets between spouses is not a problem. However, if you transfer or sell an asset to someone other than your spouse, you must get fair market value in return for it, or you risk Medicaid disqualification. Medicaid has a five-year “look-back” provision. (In many cases there are special exemptions for a blind or disabled son or daughter, as well as a caretaker son or daughter who lived with the parent. And if you know how to take advantage of these exceptions, you may be able to protect up to 100 percent of the assets.) If you sell or transfer an asset for less than fair market value, the difference between the price you received and the actual value would likely be considered an “uncompensated transfer of assets,” resulting in a period of disqualification from Medicaid benefits.

Contrary to what most people think, that disqualification period is not five years. It can actually range from a few days to decades, depending on the value and timing of the transfer and the state in which you are applying for Medicaid. In addition, there are exceptions, which may reduce or eliminate the Medicaid penalty period.

Q: Will putting an offspring’s name on my account (for example, joint savings account) protect it from Medicaid? What about a revocable “Living Trust?”

A: No! The account will still be counted by Medicaid, no matter how long ago it was done. And since the trust is revocable, it provides no protection from Medicaid either.

Q: Won’t the Medicaid caseworkers tell me how I can save my assets?

A: No! The Medicaid caseworker’s primary responsibility is to perform assessments and determine eligibility for the various Medicaid programs. It is not their responsibility to help you save your assets. In addition, they would not normally have the intimate knowledge of the various strategies and financial tools required to save assets. Besides, as government employees they are not allowed to give specific financial or legal advice, nor are they licensed or trained to do so.

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/10/elder-law-attorneysqualifying-for-medicaid-estate-recovery-gifting-trusts-denial-of-benefits/


State Bar of Michigan Elder Law Conference – Changes & Choices Day 1

All of the Elder Law Attorneys at Sprague Law Firm participated in day one of the Elder Law Section of the State Bar of Michigan’s Changes and Choices Conference 2011 today at Crystal Mountain Resort and Spa located in Thompsonville, Michigan.  Day one of the conference includes updates and the latest information on such issues as Neglect and Abuse in Long-Term Care Settings (Nursing Homes), Creative Planning for End of Life Decisions, Properly Planning Your Digital Legacy, Role of Community Mental Health for Individuals in Licenced Long-Term Care Facilities, Early Stages of Diminished Capacity, Use and Misuse of Civil Commitment, and Understanding Psychotropic Medications.

After the sessions the attorneys from Sprague Law Firm enjoyed an outstanding meal at the Coho Cafe located at 320 Main Street Frankfort, MI 49635.    If you have the opportunity to visit Franfort we highly recommend dining at the Coho Cafe where all of the fish are fresh and delivered on ice — not frozen.

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/09/michigan-elder-law-attorney-conference-changes-choices-day-1/


Elder Law, Estate Planning and Medicaid Clients Questions Answered About Lady Bird Deeds

Many of our Elder Law, Estate Planning and Medicaid clients have questions about Lady Bird Deeds.  Some clients are skeptical about the use and ask if Lady Bird deeds are “legal.”  The simple answer is that Michigan law treats Lady Bird deeds the same as any other nonprobate transfer (e.g., an insurance policy or a financial account having contract beneficiaries) of a decedent under MCL 700.6101 (the “Statute”).   The Statute allows property owned by a decedent at his or her death to be distributed to a person whom the decedent designates in a written instrument.    In the informative Opinion by Milton L. Mack, Jr., Chief Justice of the Wayne County Probate Court below, Judge Mack provides the legal basis under the Statute and Michigan Land Title Standard 9.3 for utilizing Lady Bird deeds (which are also known as ”enhanced life estate deeds”). 

The Opinion involves a Petition by a creditor of the decedent’s estate, Dearborn Federal Credit Union (“DFCU“), for a debt of the decedent when she died in an amount equal to Three Thousand Two Hundred Thirty-Nine and 15/100 Dollars ($3,239.15).    The decedent had executed a Lady Bird deed which transferred the real property to her daughters upon her death and DFCU filed a Petition to set aside the deed as a fraudlent transfer under the Uniform Fraudulent Transfer Act (the “UFTA“).  In his Opinion, Judge Mack states that “Lady Bird” deeds are not fraudulent transfers because under the UFTA ”a transfer only occurs when the transfer is so perfected that a hypothetical purchaser of the asset from the debtor could not acquire an interest superior to the transferee.”  If properly drafted, a Lady Bird deed clearly allows the grantor (debtor) to reserve to the grantor (debtor) a life estate and the unrestricted power to convey the real estate during the grantor’s lifetime.   An “unrestricted power to convey the real estate during the grantor’s lifetime”, means that the grantor is free to sell and a buyer may purchase the real property without any claim from the remaindermen. As such, Judge Mack concludes that a ”Lady Bird” deed does not transfer real property within the meaning of the UFTA, but rather, only conveys a future interest “designed to avoid probate, as well as creditors.”    

By properly preparing instruments that conveys a future interest in your property, we can assist both large and small estates in avoiding probate transfers of assets.  Avoiding probate will save time and money in the administration of your estate and can help avoid estate recovery where the decedent is a Medicaid recipient.




In the matter of the Estate of                                                                    Case No. 2004-684894-DE





                 This mater is before the Court on the petition of Dearborn Federal Credit Union Financial (DFCU), seeking appointment of its attorney as personal representative of the estate of Dolores Ann Davis, deceased (Davis). Davis died on May 8 2004. She was survived by two adult daughters. DFCU filed its Petition for Probate and Appointment of Personal Representative on December 3, 2004.  DFCU claims that when Davis died, she was indebted to DFCU in the amount of $3,239.15. DFCU sought to have its attorney appointed as personal representative in order to bring an action against the children of Davis to set aside a deed, commonly known as a “Lady Bird” deed, as a fraudulent conveyance.  The Court denied the petition on January 24, 2005.

                 DFCU filed a Motion for Reconsideration on February 2, 2005.  The Court granted reconsideration and heard argument on March 9, 2005.

                 Prior to her death, Davis lived in and owned the home located at 6198 Robindale, Dearborn Heights, Michigan.  On October 1, 2003, Davis executed a Quit Claim Deed where she conveyed the home to her two daughters, reserving “a life estate in the Grantor with full power of disposition, power to sell, rent and profits thereof.”  This type of deed is commonly known as a “Lady Bird” deed in estate planning circles because President Lyndon B. Johnson once used this type of deed to convey some land to his wife, “Lady Bird” Johnson.  This type of conveyance is more accurately called an “enhanced life estate deed”.  See “Is it possible to convey an interest in real estate and reserve to the grantor a life estate and the unrestricted power to convey the real estate during the grantor’s lifetime?”, http://courts.co.calhoun.mi.us/epic0459.htm, and Michigan Land Title Standards, Standard 9.3, (5th Ed., 2004).

                 A “Lady Bird” deed is not a transfer within the meaning of the Uniform Fraudulent Transfer Act (UFTA).  MCL 566.36(1)(a) provides that with respect to real property, a transfer only occurs when the transfer is so perfected that a hypothetical purchaser of the asset from the debtor could not acquire an interest superior to the transferee, the “Lady Bird” deed is not a transfer within the meaning of UFTA.

                 “Lady Bird” deeds only convey a future interest.  They are designed to avoid probate, as well as creditors.  Until the legislature decides that these instruments may not be used in that fashion, an action to set aside such conveyances under UFTA is not available.

                 There being no estate to probate, the Court denies the Motion for Reconsideration.  An order may be presented that comports with this opinion.


                                                                                                Milton L. Mack, Jr.

                                                                                                Chief Judge of Probate

Dated:    March 29, 2005

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/09/elder-law-attorney-estate-planning-medicaid-clients-have-questions-about-lady-bird-deeds/


Special Needs Planning – Pooled Income Trusts For Individuals Over 65 Are Permissible For Purposes Of Medicaid Planning . . . At Least In Pennsylvania

On August 22, 2011 in the case of Lewis v. Alexander, the Unites States District Court for the Eastern District of Pennsylvania issued an opinion which held in part that, “Congress intended to permit disabled persons age 65 and older to form pooled special needs trust accounts.”  According to the Pennsylvania District Court, the attempt by the State of Pennsylvania to limit the use of Pooled income Special Needs Trusts to individuals under age 65 violates the “more restrictive standard for MA [Medicaid] eligibility in violation of” federal law.

As background, Federal Law Provides a so-called “no-more-restrictive rule” at 42 U.S.C. 1396(a)(10)(C)(i)(III) and 1396a(r)(2)(B). Roughly translated and in this context, that law provides that if a State elects to extend benefits to the medically needy (beyond those qualified for SSI), the state plan must describe “the single standard to be employed in determines such eligibility, which shall be no more restrictive than the methodology which would be employed under the supplemental security income program.  “A methodology is considered to be no more restrictive if, using the methodology, additional individuals may be eligible for medical assistance and no individuals who are otherwise eligible are made ineligible for such assistance.

This decision, though not binding on Michigan Courts, may prove to be instructional to Michigan Courts on the issue of the use of Pooled Income Special Needs Trusts for individuals over age 65 seeking Medicaid eligibility in Michigan.  This is especially important as a result of the recent changes to Michigan’s Medicaid Eligibility Manual (BEM) which, just like Pennsylvania,  expressly directs that such trusts established for individuals over age 65 render such individual ineligible for Medicaid benefits. 

The Courts decision in Lewis is a significant victory for the concept of Pooled Income Special Needs Trusts for individuals with special needs.  Its clarification that disabled persons over age 65 are permitted to utilize such trusts may ultimately preserve this planning elder law attorney and their clients.

The Attorneys at Sprague Law Firm are available to assist you in discussing the planning options regarding Pooled Income Special Needs Trusts as well as other planning tools available to not only assist in Medicaid eligibility but Preservation of other government benefits.

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/08/special-need-planning-pooled-income-trusts-for-individuals-over-65-are-permissible-for-purposes-of-medicaid-planning-at-least-in-pennsylvania/


Michigan Probate – Avoiding or Limiting the Probate Process

Probate Attorneys are asked to counsel clients everyday involving probate upon the death of a love one.  It is surprising that although elder law attorneys regularly provide seminars, articles and consultations about the basics of estate planning, many clients do not take the steps necessary to help them avoid probate.  One of the first questions asked by a client is “How long will probate take?” and the answer depends on estate planning, the size of the estate and other complication such as creditors.  At mimimum, everyone should have a (1) Last Will & Testament; (2) Healthcare Power of Attorney; and (3) General and Durable Power of Attorney for Financial Matters.  

Will.   A Will is directions to the court on your final affairs and how you want to distribute any accumulated assets to your heirs.  If you have minor children, it is important to name a guardian in the Will.  The guardian will be the person who will raise your children and unless you want the court to make the decision for you, it is one of the most important documents to have if you have minor children.   If you have a trust, you still will need a Will.  Wills that are used in conjunction with a trust are called “pour-over” Wills.  The pour-over Will allows assets that are not titled in the name of the trust to be “poured” into the trust by the personal representative of the estate.  If there are significant assets to be added to the trust, then a probate estate will necessarily be opened to approve the transfer.

Probate.  Probate is process established by law that allows a court to oversee the distribution your assets pursuant to your Will or by law if you die intestate (without a Will).  If you only have a Will or you die without any estate planning in place, your estate will be distributed through a probate court.  Additionally, the probate court will also decide on guardianship and conservatorship issues for your children, whether or not you have documented your choice in a Will.

Trusts.  Trusts can help you avoid probate.  Generally a husband and wife may set up a revocable living trust during their lifetime.  Depending on the planning, trusts may minimize or avoid federal estate taxes by allowing a husband and wife to utilize both federal tax exemptions, which are now equal to $5 million dollars each (allowing a couple to protect up to $10 million dollars) under current law.  Additionally, if you have a trust, trust provisions can be established to make sure there is money and assets available to meet your children’s needs until they reach an age where the remaining assets will be distributed to them outright.

Power of Attorney.  Everyone also needs to have current signed healthcare and financial powers of attorney.   Powers of Attorney allow your designated agent to make decisions for you in the event you become incapacitated and can no longer make or participate in your own decisions. In Michigan, healthcare powers of attorney may also be known as patient advocate designations or forms and financial powers of attorney may also be referred to as general durable powers of attorney.  Without such documents, someone close to you will need to hire an attorney and petition the probate court to get the proper authority to make such decisions.

Permanent link to this article: http://www.michigan-elder-law-blog.com/2011/08/elder-law-attorney-michigan-probate-using-estate-planning-to-ease-or-avoid-probate-process/

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