Texas Estate Planning

What's the Difference Between Medicaid, Medicare, SSI, and SSDI?

If you need assistance paying for long-term care, then you need to look into Medicaid, not Medicare. But if you need health insurance, then it’s a Medicare application you’ll be submitting. And although SSI (Supplemental Security Income) refers to a specific type of program, it’s only a one letter difference from SSDI (Social Security Disability Insurance) which is a completely different benefit program for people with various types of disabilities. 

And when you look into the details of each program, it only gets more complex. So let’s break it down…

There are over one-hundred programs administered under the umbrella of Medicaid out there to help you receive the appropriate health care, insurance, and assistance that you deserve. Because of the sheer number of programs, it can be difficult to find the one best-suited for your needs. Each program has different requirements, guidelines, and limitations. 

Each program is guided by laws that change each year, if not more often, and vary from state to state, depending on the program. It can be quite helpful to get counsel from a licensed attorney in your area who stays up to date on the laws that specifically deal with the program you are applying to. The Attorneys at our Firm stay up to date through consistent continued learning experiences offered specifically for this purpose, and they ensure that every member of the team is made aware of updates and changes in the law so that we can better serve the needs of our community. 

To help you in your search for the program that best fits you and your family’s needs, here is a very quick rundown of 4 common programs that are easy to confuse: 

 

1. Medicaid: 
   • Health coverage (which is legal entitlement to payment or reimbursement for your health care costs)
   • Funded and administered jointly by the state and federal governments. This means that each state has different laws regarding Medicaid.
   • Income and asset limit 
   • Available to low-income: 
     1. Adults
     2. Children
     3. Pregnant women
     4. Elderly adults 
     5. People with disabilities 
   • Can be used for: 
     1. Long-term care 
     2. Inpatient and outpatient hospital services
     3. Physician services
     4. Lab and x-ray services
     5. Home health services 
2. Medicare: 
   • Health insurance 
   • Administered by the federal government 
   • Eligibility is based on: 
     1. Age (65 or older) 
     2. Certain younger people with disabilities 
     3. People with End-Stage Renal Disease 
   • There are various Medicare plans based on your eligibility and needs. 
3. SSI (Supplemental Security Income): 
   • Supplemental monthly income 
   • Eligibility is based on:
     1.  income and asset limits 
     2. disability
     3. Age 
        • Adults: 65+, or blind, or have a disability 
        • Children: under 18 and have physical or mental condition(s) that very seriously limits their daily activities for a period of 12 months
4. SSDI (Social Security Disability Insurance): 
   1. Supplemental monthly income 
   2. Means-tested based on disability and recent work history 
      1. Includes income and asset limits 
   3. Same medical requirements as SSI 

 

Hopefully that helps give you a better picture of where to start in your search for the programs that you or your loved ones might need. Remember that each state has their own set of laws regarding benefit programs and a licensed attorney with an understanding of these programs can be a helpful resource in navigating the application process. 

Ard Law Firm, PLLC is located in the Greater Houston Area, off I-45 south on the way to Galveston, but is able to serve all of Texas. Over the last decade, we’ve focused on Medicaid to help people transition into long-term care without large financial burdens.

We work with our clients to get their information together in order to apply for the benefits they deserve, and if obstacles come up along the way we work together to overcome them. Whether that means drafting legal documents, conducting research, or even arguing appeals, we walk with you on your journey, every step of the way.

Money & Dementia: How the Diagnosis Can Affect Your Finances

Aging is difficult, especially if you have dementia. In a recent story from NPR titled, “An older person's money management errors may be a sign of some sort of dementia,” reporter, Sarah Boden, speaks with people across America who have experienced the effects of dementia on family finances. The conversations are insightful, yet heartbreaking. 

“Dementia specialists say money problems can be one of the first signs of trouble,” NPR reported. Experts spoke of elders being scammed or taken advantage of by financial institutions and family members, but stories also included reckless spending and seniors forgetting to mail out checks. Everyone should be on the lookout for financial predators and missteps as their loved ones begin to age. 

The story continues, citing, “One study of some 81,000 Medicare recipients found that people with Alzheimer's disease and related dementias started to develop poor credit up to six years before their diagnosis.” Dementia comes in many different forms which can impact someone’s ability to handle their money. But one thing is clear: dementia negatively impacts cognition and memory, two functions necessary for taking care of financial duties such as paying bills. 

Many seniors value their independence, making conversations about money and aging emotionally challenging. And although financial institutions are taking steps to protect seniors from scams and thoughtless spending, the responsibility ultimately falls on family and friends who know the aging person and their values. 

It can be hard to see the impact of dementia on a loved one’s finances, especially if you live out of state, but it’s important to check in to avoid catastrophe. This was especially important for one family in the story who needed money to afford their mother’s care, but lost out on selling their home due to foreclosure because her dementia made her unable to pay the mortgage. 

There are private companies that will keep an eye on finances for a monthly fee and certain accounts allow owners to add a trusted contact to be notified in case of any major withdrawals, but these options aren’t available or appropriate for everyone. In estate planning, a Durable Power of Attorney is a document which grants someone you know and trust the authority to access all of your financial accounts. 

It’s a huge act of trust and respect to give someone that much access to your finances, but it’s often vital for estate planning purposes. For instance, if your loved one is in the hospital for an extended period of time, someone will need to go to their residence and pay the bills before they begin to pile up. But banks are built to keep people’s money safe, which is why a legally binding document is necessary to handle someone else’s finances when they are unable to. 

Speak with an estate planning attorney licensed in your state if you begin to notice things are changing with you or your loved one’s cognition and spending habits. Making sure the family home and other assets are protected can be immensely helpful for the next generation – start the process today by giving us a call: 713-429-0218

What is the Supreme Court Doing about Vet's Retroactive Disability Benefits?

Adolfo Arellano was aboard an aircraft carrier in 1980 when a collision killed and injured several of his shipmates and nearly swept him overboard.

Military Times’ recent article entitled “Supreme Court hears case on retroactive benefits for disabled veterans” reports that he was honorably discharged in October 1981. Years later, a VA doctor determined that the traumatic collision had given him psychological issues — including schizoaffective disorder, bipolar disorder and post-traumatic stress disorder — and left him 100% disabled.

However, for the first 30 years after his discharge, Arellano didn’t file for disability benefits because the extent of his disability prevented it. Only in 2011 did his brother, who’s also his caregiver, file a claim. The VA awarded Arellano disability benefits but didn’t back-pay him the hundreds of thousands of dollars he could have received across the three decades that preceded his claim. His lawyers have asked the U.S. Supreme Court to consider whether the Navy veteran is eligible to receive the sum of the benefits he would have been entitled to had he filed for them earlier.

A federal statute lets vets get months’ worth of retroactive benefits, if they file within a year of becoming disabled. Arellano’s counsel claimed this time limit should be subject to equitable tolling, a legal principle that gives individuals flexibility on time limits in extraordinary circumstances.

Arellano appealed his case to a VA higher court and then to the U.S. Court of Appeals for the Federal Circuit. In summer 2021, a panel of 12 federal circuit judges split on the legal issues but agreed Arellano wasn’t entitled to back pay.

The Supreme Court would need to say if vets like Arellano can rely on equitable tolling to get retroactive benefits if they miss the VA’s one-year deadline. The case hinges on technical legal questions, including whether that deadline counts as a statute of limitations, which could open it up to equitable tolling.

The justices won’t release a decision until the spring or early summer.

Even if the justices accept the argument that vets can seek retroactive disability benefits, it’s not guaranteed Arellano will get any additional money. A lower court would likely first have to review the particulars of his case.

Reference: Military Times (Oct. 5, 2022) “Supreme Court hears case on retroactive benefits for disabled veterans”

What are Proposed Changes to Vets’ Disability Ratings?

The changes to the Department of Veterans Affairs disability ratings system are part of a review of the VA’s Schedule for Rating Disabilities. This governs how VA staffers evaluate and compensate veterans with service-connected injuries.

Military Times’ recent article entitled “Vets’ disability benefits for tinnitus, mental health issues may change” says Thomas Murphy, acting VA undersecretary for benefits, said the goal of the work was not to reduce or increase the number of veterans receiving disability benefits but instead to ensure that “veterans receive decisions based on the most current medical knowledge relating to their condition.”

For veterans currently receiving those payouts, the changes will not take away any existing benefits or lower their disability rating. However, vets could see their ratings increased based on the changes, if the new rules end up more advantageous to their health situation. Vets who apply for benefits in the future will see a different set of standards applied to their cases than their older peers. This could have significant financial ramifications for those individuals.

Under VA rules, a disability rating of at least 10% can mean monthly payouts of more than $140 for a vet. A vet who receives a disability rating of 100% — either from a single service-related condition or a combination of injuries and illnesses — can receive roughly $3,100 a month in disability compensation.

The number of veterans receiving compensation for sleep apnea — interrupted breathing during sleep — has increased dramatically in recent years. Under proposed changes, VA officials for the first time could offer a “0 percent evaluation” for asymptomatic sleep apnea, allowing the department to formally acknowledge a veteran’s condition without requiring any compensation if the condition is easily controlled with treatment. Vets would receive ratings of 10% or more for sleep apnea “only when treatment is either ineffective or the veteran is unable to use the prescribed treatment due to comorbid conditions.”  They can currently get a rating of 10% or more for the condition, even if treatments are effective at dealing with the condition.

Veterans dealing with mental health issues would see a lower threshold for getting increased disability ratings under the changes. Conditions such as anxiety, depression, or post-traumatic stress disorder (PTSD) would be evaluated on how they impact a veteran’s ability to perform everyday functions. Even mild impairment would be available for compensation. The proposed rules say that the changes better recognize the effect of mental health on individuals’ well-being “ by placing greater emphasis on a disabled veteran’s ability to function in the work setting, rather than focusing on symptoms alone.”

The VA does not have a planned implementation date for the changes.

Reference: Military Times (Feb. 15, 2022) “Vets’ disability benefits for tinnitus, mental health issues may change”

What Did Former VA Secretary Say Is Wrong with the Veteran’s Benefits System?

“We’re focused on getting veterans checks and not getting them well and getting them back into society,” Former Veterans Affairs Secretary Robert Wilkie said during an American University event recently.

Military Times’ article entitled “Vets should be getting fewer disability benefits, more help in post-military life says former SECVA” reports on the former VA Secretary’s comments.

“The purpose of VA is to care for those .. who have suffered as a direct result of their military service. In my experience, the encouragement of many of the [support] groups give to people coming out of the service, it’s almost as if they encourage them to play disability. And it is incredibly destructive to the system.”

Robert Wilkie suggested that the list of injuries and illnesses making veterans eligible for financial support may be too expansive. He says that there are many issues that are more attributable to aging than military deployments. As a result, this encourages veterans to seek payouts from VA, instead of finding ways to work and integrate into civilian life.

The comments came during a roundtable discussion with Daniel Gade, retired U.S. Army lieutenant colonel and a former Virginia Senate candidate, about his new book on the Veterans Affairs system. The book is titled “Wounding Warriors: How Bad Policy is Making America’s Veterans Sicker and Poorer.”

About 40% of all post-9/11 veterans have some type of service-connected disability, as compared to about 26% of all veterans in America today, according to the Department of Labor.

Wilkie, who served as the Secretary of Veterans Affairs for almost three years under President Donald Trump, described the department as “incredibly resistant to reform” and criticized veterans lobbyists as making the issue worse with their viewpoints of always expanding benefits and services, instead of catering to veterans with specific military-related needs.

“We put those who hold the Purple Heart in the front line, when it came to compensation and compensation decisions,” he said. “The howls from the professional class were deafening, as was the response from many in Congress, because they believe that anyone who’s put on a uniform should be treated just like all the others. That is a disconnect that we as a nation have to have to address.”

Gade, a White House staffer during President George W. Bush’s administration, said his book is designed to broach conversations about sweeping reforms within the veterans disability process, including the idea that veterans should get compensation or treatment for ailments that do not have a direct, immediate link to military wounds.

The Department of Veterans Affairs processed more than one million disability claims last fiscal year, setting a new case record. However, there has been a growing backlog of overdue claims decisions, since pandemic delays and new eligibility rules have increased staff workload. Wilkie believes that improvements can’t be made without wholesale changes in how veterans groups and lawmakers view the system.

Reference: Military Times (Nov. 9, 2021) “Vets should be getting fewer disability benefits, more help in post-military life says former SECVA”

Can You Get More from Social Security?

Social Security is a complicated program for many Americans, who struggle to figure out what benefits they are eligible for and when they should apply for benefits. However, just because the system is complex, doesn’t mean you can figure it out. This article from The San Diego Union-Tribune titled “17 ways to get more from Social Security” can help.

Right now, now matter how far away your retirement date is, go to the agency’s website and create a “my Social Security” account. Make sure that all of the information about you, your earnings and the amount of money you have already paid into Social Security is correct.

Put in your 35 years of working. Your payments are based on your highest 35 years of income, so don’t skip out. Years with zero income will have a big impact on the average earnings calculation.

Work longer and delay your claim. If you can hold off on claiming Social Security, you‘ll be rewarded with a bigger monthly benefit. Yes, you can begin taking benefits as early as age 62, but your benefit will be reduced for the rest of your life. Every year you work beyond your full retirement, increases your benefit by 8% until you reach 70. Still working in your 60s and making good money? Keep working and bank more high-earnings years.

Alternatively, apply as early as you can. If your health is not great, start collecting benefits at age 62. True, you won’t receive as much money as you would if you held off, but you may get more money overall than if you waited for bigger benefits.

Don’t let the feds get your Social Security benefits. Here’s one of those big complications. You could lose a portion of your benefits to federal income tax. If you and your spouse file taxes jointly, up to 85% of your benefits could be taxable. However, that’s only if your adjusted gross income plus your nontaxable interest plus HALF of your combined Social Security benefits equals $44,000 or more. How do you avoid that tax trap? Work less in retirement or do more planning in advance. One tactic is to roll savings into a Roth IRA, because Roth withdrawals don’t usually count towards your taxable income.

Move to another state, if your state taxes Social Security.  Look before you leap: some of the states that tax benefits may be more tax friendly than others.

Take advantage of spousal benefits. If your life partner has earned more than you, you can receive a benefit based on your own earnings or one that’s equal to 50% of your spouse’s benefits. Your spouse’s benefits won’t be impacted.

Divorced? If your marriage lasted more than ten years and you have not remarried, you can get Social Security benefits based on a former spouse’s earnings. Delay your divorce, if you can, to reach that ten year mark. If possible, push the finalization of the divorce back, if you are near the end of the process.

Talk with your spouse about their benefits and timing. If your spouse has similar income and your spouse is ready to retire at full retirement age, you could collect a spousal benefit while continuing to work past full retirement age yourself. The rules changed November 2015, but you may still qualify if you were born before January 2, 1954.

For surviving spouses and exes. If your spouse or your ex has died, you can collect their benefit amount if it’s greater than your own. You can do this starting at age 60. There is no need to wait until your full retirement age. However, you should be careful, since the amount is based on age, marital status, remarriage and other factors.

A second chance. If you took benefits at age 62, and then found a job, you can pay the money back to collect a larger benefit later. You can only do this once, and you only have 12 months in which to do it.

Unemployed? If you’re laid off and collecting unemployment, you might be able to collect unemployment and Social Security at the same time. Check your state’s rules—there may be a “claw back” provision to unemployment.

Don’t earn too much in retirement. Younger than full retirement age, Social Security cuts $1 from benefits for every $2 you earn over $17,640. Are you older than full retirement age? Benefits shrink by $1 for every $3 earned above $46,920.

Get a second or third opinion. Social Security can be complicated, and you don’t want to make an expensive mistake. Talk with your estate planning attorney to get their input about your situation, while you are having your estate plan created or reviewed.

Reference: The San Diego Union-Tribune (September 16, 2019) “17 ways to get more from Social Security”

Fighting Against Abusive Probate Guardianship

However, the Wall Street Journal's recent article,"Abuses Plague Guardianship Systems Across the Country," says that guardianship systems nationwide are rife with allegations of financial exploitation and abuse despite reform efforts. As a result, some say that many elderly people with significant assets are just becoming ensnared in a system that seems mainly to succeed at generating billings. 

"These laws which were designed to protect the vulnerable are being used against them to exploit them," Dr. Sam Sugar is quoted as saying. Sugar is the founder of Americans Against Abusive Probate Guardianship, an advocacy group.

Because guardianship systems vary by state and county and record-keeping systems are inconsistent, exact national data is unavailable. Nevertheless, the report notes that the roughly 1.5 million adult guardianships in the U.S. deal with about $273 billion in assets.

These issues are getting more urgent as aging baby boomers will cause the population of seniors to just about double by 2050, according to Census estimates. For example, in New Jersey, the number of adult guardianships added annually increased 21% from 2009 to 2014, to 2,689 cases.

Guardians who have proper judicial oversight generally do a good job protecting elderly people from exploitation by acquaintances and others. But the worst cases are those where there is no guardian.

The expenses that are part of a guardianship—including legal representation for both guardians and wards—typically get paid from the ward's assets. Some jurisdictions have a public guardian's office that handles cases for indigent clients. But this financial arrangement, critics say, encourages lawyers and guardians to perpetuate guardianships indefinitely.

Talk with an experienced elder law attorney about guardianships and make sure that your loved one is being cared for in the best possible way.

Reference: Wall Street Journal (October 30, 2015) "Abuses Plague Guardianship Systems Across the Country"

 

Special Needs Attorney Testifies Before Congress

Richard Courtney told the Subcommittee members that the legislation that originally created Special Needs Trusts (SNTs), the Omnibus Budget Reconciliation Act of 1993, "included a drafting oversight that seems to assume that a person with disabilities lacks the requisite mental capacity to enter into a contract… We believe it was … not the intent of Congress to deny a basic right to individuals with disabilities."

In its report on the testimony, The (Jackson, MS) Clarion-Ledger's "Courtney testifies before Congress on behalf of persons with disabilities," said that, at present, special needs trusts funded with assets of an individual with disabilities must be created for that individual by his or her parent, grandparent, legal guardian or a court. Because of this requirement, adults with no living parents or grandparents and no guardian are forced to petition the court to create a special needs trust.

Courtney based his remarks on both his professional experience as a special needs and elder law attorney, as well as his experience as the father of a daughter with cerebral palsy and learning disabilities. Speaking of daughter Melanie, he noted that she needs and is receiving attendant care under a Medicaid waiver program. Because the cost of her care and services is expensive, she must rely on programs such as Medicaid, as do many persons with disabilities.

Right now the law says that she can't create her own trust if she were to receive an inheritance or settlement—so she could forfeit her Medicaid waiver benefits that pay her attendant to her each day for a few hours. 

An SNT would allow Melanie to pay for additional health care that's not covered by Medicaid, in addition to basics like clothing, transportation, and furniture.

Talk with an elder law and special needs attorney if you have questions about SNTs.

Reference: The (Jackson, MS) Clarion-Ledger (October 18, 2015) "Courtney testifies before Congress on behalf of persons with disabilities"

 

Mr. Cub Alleged to Have Dementia when He Signed New Will

Ernie Banks was in the middle of a long and somewhat contentious divorce with Elizabeth Banks, his fourth wife, when he passed away in January at age 83. The court petition, which was recently made public, says that Elizabeth Banks disputed a March ruling that validated Banks' will. That will left all of his estate to his caregiver, Regina Rice.

The Chicago Tribune reported that Elizabeth Banks argued in the filing that Ernie’s health was in a rapid state of decline since the preceding October when he was injured in a fall. Rice, who was a longtime friend to Ernie Banks, took him in to live with her at her home in Plainfield, Illinois while he was recovering.

Elizabeth Banks alleged in those March proceedings that Regina Rice coerced the ailing baseball legend and “Mr. Cub” into making changes to his will to give Regina all of the assets. However, two paralegals testified in the case that Ernie had the capacity and was of sound mind during the notarization of the will changes. The witnesses also said Ernie also said to them that he didn’t plan to leave money to his family. 

Regina Rice has told the media that Ernie’s estate was worth a little more than $16,000 when he passed away.

For more on this story see a recent Sporting News article titled “Estranged wife claims Ernie Banks had dementia when he signed will.”

Make sure that your estate plan is legal and solid, so that there are no conflicts over your assets. Contact a qualified estate planning attorney to discuss your situation.

Reference: Sporting News (July 27, 2015) “Estranged wife claims Ernie Banks had dementia when he signed will”