It has been pointed out in prior blogs that a secondary residence held jointly with a sibling is an inaccessible resource if the sibling refuses to sell. Notwithstanding the fact that such ownership would not disqualify a person from Medicaid if the sibling refused to sell, there are some negative aspects to such planning.
Firstly, if an individual qualified for Medicaid owning such property, one half the joint income would have to be used to defray the cost of the home. Medicaid would not let you use your pension or social security, so the cost of the home would have to be paid by the sibling.
Moreover, if such property were a tenancy in common, the decedent's interest would be subject to the Medicaid lien. However, if such property were a joint tenancy and the applicant died first, there would be a cogent argument that the property is not subject to the lien.
In a prior blog in which I discussed real estate planning (Post 11), I pointed out that an exempt transfer to a sibling who has an equity interest in the home and who is residing in the home for at least one year prior to the date of institutionalization is an exempt transfer. This reference is to the primary residence and presumably the spouse of the Medicaid applicant has predeceased. If the potential applicant transfers the property to a sibling who had such equity interest in the home, the transfer would be exempt and not subject to the Medicaid lien. However, if the sibling predeceased and the property passed by operation of law to the applicant, the interest would be subject to the lien.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2011, Post 177
Tuesday, December 20, 2011
Monday, December 19, 2011
Disinheritance of a Child
In a prior post (Post 124), I stressed the point that the will is not only to dispose of one's assets but also is a legacy.
That is, in common law jurisdictions, one can disinherit a child. The question is should one disinherit a child and if so, how to make such provisions.
Under the civil law system, there is a concept known as "forced share," which means that a child has an interest in an estate as we have in a concept known as the elective share.
I advise my clients carefully that before they disinherit a child, they should be aware of the fact that it is a legacy and should be sure that they desire to do so. Notwithstanding, if a child is to be disinherited, the question is how to make such provisions.
In such case, I use language similar to: "I have made no provisions under this will for my child, for reasons best known to him". In a recent article in The New York Times, that was the language suggested.
Other language, which might be more inflammatory, opens one up to a will challenge and I believe that the best language is provided above. Merely leaving out the name of the child also could lead to litigation, and a reference to the child in the above manner seems advisable.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2011, Post 176
That is, in common law jurisdictions, one can disinherit a child. The question is should one disinherit a child and if so, how to make such provisions.
Under the civil law system, there is a concept known as "forced share," which means that a child has an interest in an estate as we have in a concept known as the elective share.
I advise my clients carefully that before they disinherit a child, they should be aware of the fact that it is a legacy and should be sure that they desire to do so. Notwithstanding, if a child is to be disinherited, the question is how to make such provisions.
In such case, I use language similar to: "I have made no provisions under this will for my child, for reasons best known to him". In a recent article in The New York Times, that was the language suggested.
Other language, which might be more inflammatory, opens one up to a will challenge and I believe that the best language is provided above. Merely leaving out the name of the child also could lead to litigation, and a reference to the child in the above manner seems advisable.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2011, Post 176
Monday, December 12, 2011
The Relationship of Elder Law Attorney, Geriatric Care Manager and Long-Term Insurance
Several of my previous blogs have stressed the need for other professionals, such as geriatric care managers, doctors, long-term insurance experts, colleagues and the various institutions.
A typical example might be an individual transferring from New York to New Jersey and the family is in doubt as to the appropriate type of care. In such case, I would not meet with the client initially, but would refer a geriatric care manager to advise me of the appropriate venue.
Also, many writers are of the opinion that it is an attorney's obligation to advise of long-term care insurance before undertaking any planning.
Therefore, I would view it as an ethical issue as to the appropriate time an attorney should render his advice. Ideally, counsel should meet with a client and the appropriate expert so that information is given simultaneously.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2011, Post 175
A typical example might be an individual transferring from New York to New Jersey and the family is in doubt as to the appropriate type of care. In such case, I would not meet with the client initially, but would refer a geriatric care manager to advise me of the appropriate venue.
Also, many writers are of the opinion that it is an attorney's obligation to advise of long-term care insurance before undertaking any planning.
Therefore, I would view it as an ethical issue as to the appropriate time an attorney should render his advice. Ideally, counsel should meet with a client and the appropriate expert so that information is given simultaneously.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2011, Post 175
Monday, December 5, 2011
Ethical Issues Relating to the Listing as a "Super Lawyer"
After much controversy, the rules of professional conduct 7.1 effective November 2, 2009 discussing a listing as a Super Lawyer, authorized such listing so long as the following requirements are met:
"A truthful communication that the lawyer has received an honor or accolade is not misleading or impermissibly comparative for purposes of this Rule if: (1) the conferrer has made inquiry into the attorney's fitness; (2) the conferrer does not issue such an honor or accolade for a price; and (3) a truthful, plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection either as part of the communication itself or by reference to a convenient, publicly available source."
This opinion was clarified by Opinion 42 Issue December 16, 2010 which requires language similar to the following so that the word "Super Lawyer" does not imply a comparison to other lawyers.
An appropriate listing is: "Mr. Smith is on a list called Super Lawyers for the year 2011. Such list is prepared by Thomson Reuters. The selection process includes peer nominations, a blue ribbon panel review and independent research of candidates. Such list does not imply a comparison to other lawyers, but is compiled by the above process. This advertisement has not been approved by the Supreme Court."
Therefore, a listing of one as a "Super Lawyer" is unethical unless the above qualification is made.
It would appear that these opinions are based upon the First Amendment rule of the public to be informed rather than the First Amendment right of an attorney to state his qualifications.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2011, Post 174
"A truthful communication that the lawyer has received an honor or accolade is not misleading or impermissibly comparative for purposes of this Rule if: (1) the conferrer has made inquiry into the attorney's fitness; (2) the conferrer does not issue such an honor or accolade for a price; and (3) a truthful, plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection either as part of the communication itself or by reference to a convenient, publicly available source."
This opinion was clarified by Opinion 42 Issue December 16, 2010 which requires language similar to the following so that the word "Super Lawyer" does not imply a comparison to other lawyers.
An appropriate listing is: "Mr. Smith is on a list called Super Lawyers for the year 2011. Such list is prepared by Thomson Reuters. The selection process includes peer nominations, a blue ribbon panel review and independent research of candidates. Such list does not imply a comparison to other lawyers, but is compiled by the above process. This advertisement has not been approved by the Supreme Court."
Therefore, a listing of one as a "Super Lawyer" is unethical unless the above qualification is made.
It would appear that these opinions are based upon the First Amendment rule of the public to be informed rather than the First Amendment right of an attorney to state his qualifications.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© December 2011, Post 174
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