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Special Needs Trusts, Medicaid Planning, and Protecting Assets Last Minute · The Legal Exchange

• 0:00
  Speaker 1: This is The Legal Exchange with Todd Lutzke from the
• 0:04
  Speaker 1: law firm of Cushing & Dolan and Susan Powers of
• 0:07
  Speaker 1: the Armstrong Advisory Group. Each week, Todd and Susan will
• 0:10
  Speaker 1: discuss many topics, including estate planning, how to avoid probate,
• 0:13
  Speaker 1: and protecting your money from a nursing home. If you
• 0:16
  Speaker 1: need assistance in any of these areas or have a
• 0:18
  Speaker 1: question about another issue that may affect your future, call
• 0:21
  Speaker 1: 866-848-5699 to make an appointment. That's 866-848-5699. Operators are standing by. Now,
• 0:31
  Speaker 1: here are your hosts, Todd Lutzke and Susan Powers.
• 0:37
  Speaker 2: Welcome into The Legal Exchange with Todd Lutzke. I'm Susan Powers,
• 0:41
  Speaker 2: a financial advisor with the Armstrong Advisory Group, and I'm
• 0:44
  Speaker 2: joined by Todd Lutzke, a partner with the law firm
• 0:47
  Speaker 2: of Cushing and Dolan with a master's in taxation.
• 0:50
  Speaker 3: Welcome, Todd.
• 0:51
  Speaker 2: How are you today?
• 0:52
  Speaker 3: I am never better. And you?
• 0:53
  Speaker 2: I am great. Thank you. What do you have for
• 0:55
  Speaker 2: us this week?
• 0:55
  Speaker 3: Couple of things. As we approach the end of the month,
• 1:00
  Speaker 3: not approach, we're there, really. So I got a case
• 1:03
  Speaker 3: out of Arkansas. And basically, you know, it's always make
• 1:07
  Speaker 3: sure you get capacity before you make changes to your documents.
• 1:12
  Speaker 3: So this is an interesting case where, you know, someone
• 1:17
  Speaker 3: wanted to make changes that one kid decided after one
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  Speaker 3: of the parents died to help the mother change the
• 1:25
  Speaker 3: revocable trust.
• 1:27
  Speaker 2: Is help in quotes here?
• 1:28
  Speaker 3: Helps in quotes. So we're going to see how that
• 1:31
  Speaker 3: plays out, obviously. And of course, the other kid who
• 1:35
  Speaker 3: was cut out wasn't so happy about this. And so
• 1:38
  Speaker 3: it's interesting to see how it plays out, though, and
• 1:40
  Speaker 3: whether or not it actually works, because there is a
• 1:43
  Speaker 3: little twist to this one. So it's going to be
• 1:46
  Speaker 3: good to learn about that. But at least a revocable
• 1:48
  Speaker 3: trust was done by husband and wife, and you can
• 1:50
  Speaker 3: see how the planning actually plays out. So that's good news.
• 1:53
  Speaker 3: Then we head over to the Southern District in West Virginia.
• 1:59
  Speaker 3: So Southern District Court, it's in West Virginia. In this case,
• 2:04
  Speaker 3: we're really going to learn the differences between a special
• 2:06
  Speaker 3: needs trust and a self-settled and a third party special
• 2:10
  Speaker 3: needs trust. Because here, John was collecting SSI benefits, which
• 2:14
  Speaker 3: was an asset-based situation, then he lost benefits. But interestingly enough,
• 2:22
  Speaker 3: when he was reapplying, his dad died and left him $ 45, 000
• 2:24
  Speaker 3: as an inheritance. Not a great idea. But again, I
• 2:29
  Speaker 3: think we're going to learn how to treat your special needs,
• 2:32
  Speaker 3: you know, beneficiaries, children, etc. So that they don't lose
• 2:37
  Speaker 3: governmental benefits. So I think we can learn a lot
• 2:40
  Speaker 3: from this case, because there are plenty of folks out
• 2:43
  Speaker 3: there who have special needs children. So Folks, that's a
• 2:47
  Speaker 3: little bit about what we're going to do, but it
• 2:50
  Speaker 3: is the end of the month. It's the last chance
• 2:51
  Speaker 3: to get it. And these are some great planning cases,
• 2:54
  Speaker 3: but many times when we're entering a nursing home, we
• 2:57
  Speaker 3: either haven't planned or we have planned, but there's still
• 3:01
  Speaker 3: assets that are outside of the trust and need protected.
• 3:05
  Speaker 3: And this guide, Last Minute Medicaid Eligibility, will help you
• 3:08
  Speaker 3: understand what's countable and what's non-countable, how to switch things
• 3:12
  Speaker 3: and save assets last minute when you're faced with going
• 3:16
  Speaker 3: into the nursing home, like how a house is treated
• 3:19
  Speaker 3: versus a rental property versus a 401k and an IRA.
• 3:23
  Speaker 3: And by the way, folks, they're treated differently for married
• 3:26
  Speaker 3: couples and single people. So a little something for everyone,
• 3:29
  Speaker 3: whether you planned or you've not planned when you're faced
• 3:32
  Speaker 3: with a nursing home care, get the guide. It's the
• 3:34
  Speaker 3: end of the month, folks. 866-848-5699 or LegalExchangeShow.com. Again, 866-
• 3:44
  Speaker 3: 848-5699 or LegalExchangeShow.com. And you can always go to our
• 3:51
  Speaker 3: Cushing and Dolan PC Instagram page for more information. Let's
• 3:55
  Speaker 3: head over to Arkansas, shall we? So George and Helen
• 4:01
  Speaker 3: lived in Kansas until they retired to Alaska. I'm sorry,
• 4:07
  Speaker 3: it's not Arkansas, it's Alaska. My mistake. Until they retired
• 4:11
  Speaker 3: to Alaska. And they owned property in both states. They
• 4:16
  Speaker 3: were close to their one son, Doug, but sometimes they
• 4:19
  Speaker 3: had a strange relationship with their son, Larry. So on
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  Speaker 3: July 2014, they established a revocable trust to be used
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  Speaker 3: for their care, for their lives. Also note in this
• 4:31
  Speaker 3: case that this trust remained revocable until both spouses died,
• 4:38
  Speaker 3: which is a little strange, but we'll come back to that.
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  Speaker 3: Then they transferred about $ 4. 2 million of assets to the trust.
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  Speaker 3: It did state that upon the death of both of them,
• 4:49
  Speaker 3: certain real estate-specific property would go to Doug, and everything
• 4:53
  Speaker 3: else was equally to both kids. 2018, George died. Interestingly enough,
• 4:59
  Speaker 3: two weeks later, Doug, the good son, apparently... Allegedly. calls Helen...
• 5:06
  Speaker 3: Calls Helen, I'm sorry, calls Helen's attorney, mom's attorney, and
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  Speaker 3: basically wants to amend the trust to eliminate Larry.
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  Speaker 2: So help mom by helping himself.
• 5:18
  Speaker 3: So the attorney said, you better get letters of capacity
• 5:21
  Speaker 3: from the doctor. So two doctors examine Helen and conclude
• 5:25
  Speaker 3: independently that she definitely has capacity. The attorney then also
• 5:29
  Speaker 3: made his own determination as to whether or not she
• 5:31
  Speaker 3: had capacity and then proceeded to amend the trust to
• 5:34
  Speaker 3: eliminate Larry. Well, in 2020, a couple years later, September,
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  Speaker 3: Helen dies. Doug, the good son apparently, petitions the court
• 5:47
  Speaker 3: to validate the trust, and of course Larry opposes it.
• 5:51
  Speaker 3: He argues that she lacked capacity, and not to mention
• 5:54
  Speaker 3: that Doug also unduly influenced Helen. Five-day trial. And at
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  Speaker 3: the end of the day, they determined that the evidence
• 6:03
  Speaker 3: supporting Helen's capacity, the doctor's testimony, all the other evidence,
• 6:08
  Speaker 3: outweighed the evidence calling anything into question. So Doug wins. Well,
• 6:14
  Speaker 3: Larry wasn't happy, so he appealed. The appellate court affirmed,
• 6:19
  Speaker 3: basically saying that, yes, there was more evidence supporting Helen's doctors,
• 6:25
  Speaker 3: the testimonies, than there was to believing Larry's expert witnesses. So,
• 6:32
  Speaker 3: interestingly enough, I probably agree with the capacity argument, but
• 6:38
  Speaker 3: I don't feel like they addressed the undue influence part enough.
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  Speaker 2: I mean, if she had capacity, though, she may have
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  Speaker 2: wanted to. Maybe her husband didn't agree.
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  Speaker 3: Her husband was already dead. No, no, I know it. Oh, yeah, yeah.
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  Speaker 2: But that's why she waited until he died and said,
• 6:54
  Speaker 2: he's out.
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  Speaker 3: Could be, and that might have been what they determined,
• 6:58
  Speaker 3: but it's... But again, even when people have capacity, that's
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  Speaker 3: why there's an undue influence argument to say, yeah, you
• 7:04
  Speaker 3: have capacity, but when you're a little older, you have
• 7:09
  Speaker 3: a son who's pushing you. That's not right either. So
• 7:13
  Speaker 3: I'm a little suspect on this case because I don't
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  Speaker 3: think I have enough information to know about the undue
• 7:19
  Speaker 3: influence piece because it does seem like it flies in
• 7:21
  Speaker 3: the face of undue influence. But nevertheless, the point here
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  Speaker 3: is that, hey, they had a revocable trust in place.
• 7:26
  Speaker 3: They had a plan. you know, it works, right? It
• 7:30
  Speaker 3: accommodated their wishes, you know, and they really wanted it
• 7:34
  Speaker 3: for their own care, their own benefit first, and that's
• 7:36
  Speaker 3: what it was all about. Then they also wanted certain
• 7:39
  Speaker 3: assets to go to Doug, which was accomplished, and that worked.
• 7:44
  Speaker 3: So again, just not convinced about the undue influence. The
• 7:48
  Speaker 3: part that I want to educate you on here, so,
• 7:50
  Speaker 3: and by the way, this is what estate planning is
• 7:53
  Speaker 3: all about to make sure your wishes are accomplished, probates avoided,
• 7:56
  Speaker 3: and probably with the trust they had in place at
• 7:58
  Speaker 3: $ 4 million, probably reduced estate taxes. So folks, this stuff works.
• 8:04
  Speaker 3: The thing that was a little troubling for me, and
• 8:06
  Speaker 3: I want you all to take this to note when
• 8:08
  Speaker 3: you're doing your planning is why on earth did they
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  Speaker 3: make it revocable for both lives?
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  Speaker 2: Yeah, because that's unusual, right?
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  Speaker 3: Yeah, this is strange, right? Because if you do that,
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  Speaker 3: then you cannot really shelter any assets for the for
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  Speaker 3: estate tax purposes, right? Because if it's revocable for both lives,
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  Speaker 3: then all of the assets will be included on both deaths.
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  Speaker 3: So on the second death, everything that's in there is
• 8:35
  Speaker 3: going to be included. So I don't know if Alaska
• 8:37
  Speaker 3: has an estate tax, but, you know, $ 4 million would
• 8:41
  Speaker 3: be includable on the second death. Now, Cushing and Dolan,
• 8:45
  Speaker 3: we do these joint trusts and they become irrevocable after
• 8:49
  Speaker 3: the first death, which allows us to shelter assets. But
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  Speaker 3: it also allows the surviving spouse to be in control,
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  Speaker 3: which is what she was here. So that doesn't bode
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  Speaker 3: well for why we needed to make it irrevocable. Not
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  Speaker 3: only is the surviving spouse in control when it's irrevocable, again,
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  Speaker 3: allowing us to shelter assets for estate tax purposes, it
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  Speaker 3: still grants to the surviving spouse the limited power of
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  Speaker 3: appointment to change the trust like She changed it here.
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  Speaker 1: Right.
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  Speaker 3: So she would have been able to cut children in
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  Speaker 3: and out. And, you know, it's limited to children of
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  Speaker 3: all generations, of course, but it would have allowed us
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  Speaker 3: to cut children in and out of this trust, just
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  Speaker 3: like they did here. So it would seem to me
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  Speaker 3: that you didn't have to make it revocable for both trusts.
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  Speaker 2: I did a little Googling. Alaska does not have an
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  Speaker 2: estate tax.
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  Speaker 3: That might be a good idea. And that's why, again,
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  Speaker 3: I still, I think from an educational standpoint, we need
• 9:49
  Speaker 3: to know that. But she can move.
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  Speaker 2: They already moved once.
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  Speaker 3: And also, folks, having real estate language in these trusts,
• 9:55
  Speaker 3: allowing us to leave exactly what we want to each
• 9:58
  Speaker 3: person is super important. And so, folks, there you go.
• 10:03
  Speaker 3: Call and get the guide, though. It's the end of
• 10:05
  Speaker 3: the month. If you're faced with entering a nursing home,
• 10:08
  Speaker 3: learn what you can do and what you can't do.
• 10:10
  Speaker 3: 866-848-5699 or LegalExchangeShow.com. Again, 866-848-5699.
• 10:22
  Speaker 2: You've been listening to Todd Lutzke, a partner with the
• 10:24
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 10:27
  Speaker 2: financial advisor with the Armstrong Advisory Group. We've got much
• 10:31
  Speaker 2: more to come when we return to The Legal Exchange
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  Speaker 1: A nursing home stay can cost more than $ 14, 000 a month.
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  Speaker 2: Welcome back into The Legal Exchange with Todd Lutzky. I'm
• 13:57
  Speaker 2: Susan Powers, a financial advisor with the Armstrong Advisory Group,
• 14:01
  Speaker 2: and I'm joined by Todd Lutzky, a partner with the
• 14:03
  Speaker 2: law firm of Cushing & Dolan with a master's in taxation.
• 14:07
  Speaker 2: Where are we headed now, Todd?
• 14:09
  Speaker 3: We're going to head over to West Virginia.
• 14:13
  Speaker 2: Oh, special needs trust.
• 14:14
  Speaker 3: That's right. Yeah, yeah. So we've got John, who started
• 14:18
  Speaker 3: collecting SSI benefits. Now, SSI benefits are asset-based benefits.
• 14:23
  Speaker 2: Low income.
• 14:24
  Speaker 3: Benefits, right? You have to have under a certain amount
• 14:26
  Speaker 3: of assets in order to get it. Not so much income, assets.
• 14:31
  Speaker 2: Okay.
• 14:33
  Speaker 3: And so he did this starting in 2003. Then he
• 14:37
  Speaker 3: had to reapply in 2013, so 10 years later, because
• 14:42
  Speaker 3: his benefits were terminated because I guess they thought he
• 14:45
  Speaker 3: was entering a facility or something. Well, January 2014, so
• 14:50
  Speaker 3: right away, he files this reapplication. And the reapplication got denied.
• 14:55
  Speaker 1: Why?
• 14:55
  Speaker 3: Because he received an inheritance from his dad of $ 45, 000. Directly. Directly. Well,
• 15:03
  Speaker 3: in April of 2014, right away, still continuing, a trust
• 15:08
  Speaker 3: got established for the inheritance. And then they continued the
• 15:11
  Speaker 3: application process, still denied, because the administrative law judge said
• 15:15
  Speaker 3: that you could not create his own special needs trust.
• 15:18
  Speaker 3: and have it excluded, and the trust was not excluded
• 15:21
  Speaker 3: as a Medicaid trust. So then he appealed, and on
• 15:25
  Speaker 3: appeal they remanded the case back to the appellate law
• 15:28
  Speaker 3: judge for the appellate law judge to consider whether or
• 15:32
  Speaker 3: not this was income when he was applying and not
• 15:36
  Speaker 3: an asset prior to the establishment of the trust. There's
• 15:42
  Speaker 3: a rule out there that says if you receive a
• 15:44
  Speaker 3: one-time lump sum settlement of like an inheritance, it's income
• 15:49
  Speaker 3: in the first month and then an asset.
• 15:51
  Speaker 2: So you don't address it.
• 15:53
  Speaker 3: Right. So it doesn't kick you off. So I think
• 15:56
  Speaker 3: maybe that's what they were pursuing. And they said the
• 15:57
  Speaker 3: administrative law judge came back and still issued an unfavorable
• 16:01
  Speaker 3: ruling to John because he said he found that the
• 16:03
  Speaker 3: resource that John got was cash placed in a bank
• 16:08
  Speaker 3: account that John could liquidate anytime he wanted to. Therefore,
• 16:13
  Speaker 3: it's clearly an asset. He had the asset. still not
• 16:18
  Speaker 3: sure they addressed the income issue correctly, but let's just
• 16:21
  Speaker 3: move on. So he's still denied. Well, he appealed. And
• 16:27
  Speaker 3: the appellate court agreed with the administrative law judge that
• 16:32
  Speaker 3: the inheritance was an asset or accountable resource at the
• 16:35
  Speaker 3: time when John applied for SSI. And at that time,
• 16:41
  Speaker 3: he said the individual could not petition the court to
• 16:43
  Speaker 3: create a trust with their own funds to qualify for
• 16:47
  Speaker 3: for the special needs trust exception. What are they talking
• 16:50
  Speaker 3: about there? Well, that's a self-settled trust under the regulations, D4A.
• 16:54
  Speaker 3: They call them D4A trusts. I'll explain that. So I
• 16:57
  Speaker 3: think at the end of the day, folks, you have
• 16:59
  Speaker 3: to really think about what you're doing when, in this case,
• 17:02
  Speaker 3: he was actually disabled or collecting assets on his own.
• 17:05
  Speaker 3: But I want to expand this to help us learn
• 17:08
  Speaker 3: about people who have special needs children. Or if you
• 17:12
  Speaker 3: have a disability on your own during life, And you
• 17:15
  Speaker 3: want to create your own self-settled trust. How do you
• 17:18
  Speaker 3: not run into these problems? And folks, that just comes
• 17:21
  Speaker 3: with planning. Make sure you do your planning, as we
• 17:23
  Speaker 3: always say, especially when you've got special needs situations so
• 17:27
  Speaker 3: you don't lose benefits. However, nevertheless, there are times we
• 17:32
  Speaker 3: end up in a nursing home and we don't have
• 17:35
  Speaker 3: any planning done or we've done planning and we have
• 17:37
  Speaker 3: assets left over. You need to call and get the guide.
• 17:40
  Speaker 3: It's the end of the month, folks. Don't just write
• 17:43
  Speaker 3: the check to the nursing home.
• 17:44
  Speaker 5: Learn more.
• 17:45
  Speaker 3: What you can do last minute. This guide explains to you,
• 17:48
  Speaker 3: it actually gives you an example of like a client
• 17:51
  Speaker 3: worth about $ 2 million applying for Medicaid with no planning.
• 17:54
  Speaker 3: Can you get on?
• 17:55
  Speaker 5: Sure.
• 17:56
  Speaker 3: Understand how rental properties are treated. Primary residence. Understand what
• 18:01
  Speaker 3: to do with excess resources by using annuities. What about,
• 18:05
  Speaker 3: you know, a rental property versus a 401k? All assets
• 18:10
  Speaker 3: are treated differently and they're treated differently if you're married
• 18:13
  Speaker 3: versus single. So learn what you can do last minute
• 18:17
  Speaker 3: to not just write the check and convert assets from
• 18:21
  Speaker 3: countable to non-countable. Get the guide 866-848-5699 or LegalExchangeShow.com. Again,
• 18:34
  Speaker 3: 866-848-5699 or LegalExchangeShow.com. And you can download it there and
• 18:38
  Speaker 3: always go to Cushing Dolan PC for more information on
• 18:42
  Speaker 3: our Instagram page.
• 18:43
  Speaker 2: So there's a couple of different types of special needs trust, right? Yeah.
• 18:46
  Speaker 3: Yeah. And I think that's really what people need to
• 18:48
  Speaker 3: focus on. So my first message is always when you
• 18:52
  Speaker 3: have a special needs child, let's start with that. You
• 18:57
  Speaker 3: should always remember that you do not have to disinherit
• 19:00
  Speaker 3: the child in order to preserve governmental benefits.
• 19:03
  Speaker 2: A lot of people do think that they need to
• 19:05
  Speaker 2: do that.
• 19:05
  Speaker 3: They do. They do. In this case, remember there was
• 19:09
  Speaker 3: actually an inheritance that caused a problem, right? So It
• 19:12
  Speaker 3: can cause the problem. So if you have a child
• 19:15
  Speaker 3: with special needs, what you need to do is in
• 19:18
  Speaker 3: your revocable trust or in your irrevocable Medicaid trust, if
• 19:22
  Speaker 3: that's the way you want to go, make sure you
• 19:25
  Speaker 3: put language in there that says, upon the death, establish
• 19:30
  Speaker 3: the shares for the children. But in the case of
• 19:32
  Speaker 3: a share established for so-and-so, whatever the child's name is,
• 19:36
  Speaker 3: that will be held in a special needs trust for
• 19:39
  Speaker 3: that child. And the language is, in essence, that the
• 19:42
  Speaker 3: trustee can distribute income and principal out of that trust
• 19:48
  Speaker 3: for that special need. child in the trustee's sole discretion
• 19:55
  Speaker 3: for life.
• 19:56
  Speaker 2: And what is that type of trust called, Todd?
• 19:58
  Speaker 3: That's like a special needs trust. It's interesting that you
• 20:02
  Speaker 3: ask that because it's the same language we use For
• 20:05
  Speaker 3: people who aren't special needs but want divorce protection.
• 20:08
  Speaker 2: Oh, like I refer to it as the inheritor's trust.
• 20:10
  Speaker 3: Yeah. Creditor protection. Divorce protection. Generation skipping tax protection. Same language,
• 20:17
  Speaker 3: different reason.
• 20:18
  Speaker 2: Okay.
• 20:19
  Speaker 3: Right? And why that's important and why it works for
• 20:22
  Speaker 3: all of these reasons is because the beneficiary of that
• 20:27
  Speaker 3: kind of a share, they don't own it. And if
• 20:32
  Speaker 3: they don't own it, in this case, it's not going
• 20:35
  Speaker 3: to cause them to lose governmental benefits. So here, if
• 20:38
  Speaker 3: you're collecting the SSI and he received that $ 45, 000 in
• 20:41
  Speaker 3: a special needs share for his benefit, this would have
• 20:46
  Speaker 3: never been a problem. He wouldn't have ever been kicked
• 20:48
  Speaker 3: off governmental benefits because he didn't receive it. The trust did.
• 20:53
  Speaker 3: It's also the same reason it works for divorce and
• 20:55
  Speaker 3: creditor protection. You don't own it.
• 20:57
  Speaker 4: Right.
• 20:58
  Speaker 3: So if you don't own it, it's not a marital
• 20:59
  Speaker 3: asset when it comes to getting a divorce to begin with.
• 21:02
  Speaker 2: And if that's the case, then when that special needs
• 21:04
  Speaker 2: child passes away, there's not a payback provision then, right?
• 21:08
  Speaker 3: That's exactly right. So that's why I'm saying here, note
• 21:11
  Speaker 3: that in this case, this would have been not a
• 21:15
  Speaker 3: problem at all if he had this assets. He wouldn't
• 21:17
  Speaker 3: have lost benefits. But let's switch gears, as you said,
• 21:20
  Speaker 3: just for a minute. What if... And by the way,
• 21:23
  Speaker 3: you're right, no payback provision. So when this child dies,
• 21:26
  Speaker 3: it would go to this child's children if they had any.
• 21:29
  Speaker 3: If they didn't, then it would bounce back to the siblings.
• 21:32
  Speaker 3: So it would continue to stay in the bloodline and
• 21:35
  Speaker 3: never having to be used to pay back the state.
• 21:39
  Speaker 3: Switch that up with a self-settled trust, which is more
• 21:42
  Speaker 3: what should have kind of happened here, but he inherited
• 21:44
  Speaker 3: the money. So let's say on the other hand, you're
• 21:47
  Speaker 3: not disabled, but you have an accident. Someone hurts you
• 21:50
  Speaker 3: in some way and you get disabled. And you get
• 21:52
  Speaker 3: a settlement.
• 21:53
  Speaker 1: Sure.
• 21:53
  Speaker 3: Well, that's your money. And it has to be your
• 21:56
  Speaker 3: money to create a self-settled trust with your money. In
• 22:01
  Speaker 3: this case, what you do is you either have the
• 22:03
  Speaker 3: judge create the trust or a parent or yourself if
• 22:07
  Speaker 3: you're competent. But the money never really comes to you.
• 22:11
  Speaker 3: The settlement goes directly into the trust. And so it's
• 22:17
  Speaker 3: never going to cause a problem. and transferring it into
• 22:21
  Speaker 3: a self-settled special needs trust for your own benefit is allowed.
• 22:25
  Speaker 3: It will not cause you to lose governmental benefits. You
• 22:28
  Speaker 3: will continue to live your life like you were, and
• 22:31
  Speaker 3: you will continue to enjoy the assets that are in
• 22:34
  Speaker 3: that trust during your life to make your life better.
• 22:39
  Speaker 2: And is that why, because he got those assets directly
• 22:41
  Speaker 2: as an inheritance in his bank account, that he couldn't
• 22:44
  Speaker 2: use that?
• 22:44
  Speaker 3: It's what the judge seems to say.
• 22:46
  Speaker 2: Okay.
• 22:46
  Speaker 3: It's what it seems to say, that it's like you
• 22:48
  Speaker 3: had complete control over these assets. You could have liquidated it.
• 22:51
  Speaker 3: Whereas in this case, the only difference, though, is when
• 22:54
  Speaker 3: you do these self-settled trusts, there is a payback provision.
• 22:58
  Speaker 3: Got it. So at the end of this person's life,
• 23:00
  Speaker 3: if they've received governmental benefits, you got to pay back
• 23:03
  Speaker 3: the governmental benefits. Right. Folks, very important. I think great
• 23:06
  Speaker 3: lessons on special needs trusts from this case. And folks,
• 23:10
  Speaker 3: when you're faced with last minute planning and you're heading
• 23:13
  Speaker 3: into a nursing home, call. It's the end of the month.
• 23:15
  Speaker 3: Get the guide on what to do last minute to
• 23:18
  Speaker 3: not just write the check. Convert those countable assets to
• 23:21
  Speaker 3: non-countable assets. 866-848-5699 or LegalExchangeShow.com.
• 23:25
  Speaker 1: Again, 866-848-5699.
• 23:35
  Speaker 3: And get the guide, protect those assets last minute.
• 23:38
  Speaker 2: You've been listening to Todd Lutzke, a partner with the
• 23:40
  Speaker 2: law firm of Cushing and Dolan. I'm Susan Powers, a
• 23:44
  Speaker 2: financial advisor with the Armstrong Advisory Group. Todd will be
• 23:47
  Speaker 2: answering your listener questions when we return to The Legal
• 23:51
  Speaker 2: Exchange with Todd Lutzke.
• 23:53
  Speaker 1: One day, you're living in your own home. The next,
• 23:56
  Speaker 1: you can't return home after rehab. Now, you're faced with
• 24:00
  Speaker 1: a nursing home bill of more than $ 14, 000 a month
• 24:03
  Speaker 1: and wondering how you're going to pay for it. These
• 24:06
  Speaker 1: situations can occur without warning, but Cushing and Dolan can help.
• 24:10
  Speaker 1: Before you make any major decisions, get the facts. Cushing
• 24:14
  Speaker 1: and Dolan's new guide, Last Minute Medicaid Eligibility, explains common
• 24:18
  Speaker 1: misconceptions about Medicaid, what assets may or may not be
• 24:21
  Speaker 1: at risk, and why the first answer you receive isn't
• 24:24
  Speaker 1: always your only option. Call right now, 866-848-5699, and get
• 24:29
  Speaker 1: your free copy of Last Minute Medicaid Eligibility. That's 866-848-5699.
• 24:35
  Speaker 1: Or you can request the guide online at LegalExchangeShow.com. That's LegalExchangeShow.com.
• 24:42
  Speaker 1: The proceeding was paid for and the views expressed are
• 24:43
  Speaker 1: solely those of Cushing and Dolan. Cushing and Dolan and
• 24:46
  Speaker 1: or Armstrong Advisory may contact you offering legal or investment services.
• 24:49
  Speaker 1: Cushing and Dolan and Armstrong Advisory do not endorse each
• 24:52
  Speaker 1: other and are not affiliated.
• 24:55
  Speaker 6: Stuck in traffic again? Same road, same commute, same thought.
• 25:01
  Speaker 6: How many more years am I doing this?
• 25:03
  Speaker 3: One, two, five?
• 25:05
  Speaker 6: At the Armstrong Advisory Group, our financial advisors help people
• 25:09
  Speaker 6: answer one of the biggest retirement questions. Could I be
• 25:12
  Speaker 6: retired right now? Many factors may affect your decision, including
• 25:16
  Speaker 6: what your income might look like and whether your retirement
• 25:19
  Speaker 6: plan is built for the life you actually want. We
• 25:22
  Speaker 6: can provide you with some strategies to help you see
• 25:25
  Speaker 6: where you stand. So before you assume you have to
• 25:28
  Speaker 6: keep working, get a clearer picture. Visit our website at armstrongadvisory.com
• 25:33
  Speaker 6: and schedule a no-obligation meeting. The Armstrong Advisory Group. We
• 25:38
  Speaker 6: answer only to you.
• 25:39
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 25:42
  Speaker 1: registered investment advisor. Nothing in the ad or in any
• 25:44
  Speaker 1: Armstrong guide is specific financial, legal, or tax advice. Consult
• 25:47
  Speaker 1: your own financial, tax, and estate planning advisors before making
• 25:50
  Speaker 1: any investment decisions. Armstrong may contact you to offer investment
• 25:53
  Speaker 1: advisory services.
• 25:54
  Speaker 5: For many Massachusetts veterans, getting to a medical appointment isn't
• 25:58
  Speaker 5: always easy. That's why the Disabled American Veterans Department of
• 26:01
  Speaker 5: Massachusetts provides free transportation to VA medical appointments through its
• 26:06
  Speaker 5: network of dedicated drivers. Every mile helps a veteran get
• 26:10
  Speaker 5: the care they've earned through their service. You can help
• 26:13
  Speaker 5: by volunteering or making a donation. Learn more at DAVMA.org.
• 26:19
  Speaker 5: That's DAVMA.org.
• 26:24
  Speaker 1: One day, you're living in your own home. The next,
• 26:27
  Speaker 1: you can't return home after rehab. Now, you're faced with
• 26:31
  Speaker 1: a nursing home bill of more than $ 14, 000 a month
• 26:34
  Speaker 1: and wondering how you're going to pay for it. These
• 26:37
  Speaker 1: situations can occur without warning, but Cushing and Dolan can help.
• 26:41
  Speaker 1: Before you make any major decisions, get the facts. Cushing
• 26:44
  Speaker 1: and Dolan's new guide, Last Minute Medicaid Eligibility, explains common
• 26:48
  Speaker 1: misconceptions about Medicaid, what assets may or may not be
• 26:52
  Speaker 1: at risk, and why the first answer you receive isn't
• 26:54
  Speaker 1: always your only option. Call right now, 866-848-5699, and get
• 27:00
  Speaker 1: your free copy of Last Minute Medicaid Eligibility. That's 866-848-5699.
• 27:06
  Speaker 1: Or you can request the guide online at LegalExchangeShow.com. That's LegalExchangeShow.com.
• 27:12
  Speaker 1: The proceeding was paid for and the views expressed are
• 27:14
  Speaker 1: solely those of Cushing and Dolan. Cushing and Dolan and
• 27:16
  Speaker 1: or Armstrong Advisory may contact you offering legal or investment services.
• 27:20
  Speaker 1: Cushing and Dolan and Armstrong Advisory do not endorse each
• 27:23
  Speaker 1: other and are not affiliated. You're listening to The Legal Exchange,
• 27:27
  Speaker 1: and it's time for Ask Todd, the segment where Todd
• 27:30
  Speaker 1: will answer your questions about anything and everything that's included
• 27:34
  Speaker 1: in the estate planning process. Once again, here's Todd Lutzke
• 27:38
  Speaker 1: and Susan Powers.
• 27:41
  Speaker 2: Welcome back, Todd. I have a few questions from listeners
• 27:44
  Speaker 2: for you. Our first question comes from Elaine in Menden, Mass.,
• 27:47
  Speaker 2: and Elaine writes, My aunt created her irrevocable trust many
• 27:50
  Speaker 2: years ago. She now has stage four cancer and has
• 27:54
  Speaker 2: declined treatment. We need to pay for her 24-7 care
• 27:57
  Speaker 2: to stay at home, though I'm not sure how long
• 28:00
  Speaker 2: she will live. She has $ 25, 000 in an IRA and $ 100, 000
• 28:05
  Speaker 2: in a Roth, as well as over $ 1 million in
• 28:08
  Speaker 2: her irrevocable trust account. What is the best way for
• 28:11
  Speaker 2: us to pay for her care? What happens if she
• 28:14
  Speaker 2: outlives her retirement money?
• 28:17
  Speaker 3: So this is really a great question because many people wonder,
• 28:22
  Speaker 3: you know, look, she did her planning and that's great.
• 28:24
  Speaker 3: Do your planning. There's still things to think about, much
• 28:27
  Speaker 3: like I talk about with this guide, right? There's things
• 28:29
  Speaker 3: to think about when you're either faced with nursing home care,
• 28:32
  Speaker 3: even though you've done your planning, or if you're not
• 28:35
  Speaker 3: going to go in the nursing home, that's fine too.
• 28:37
  Speaker 3: I still have assets that I should figure out what
• 28:40
  Speaker 3: I should spend first. And that's the case here. So
• 28:43
  Speaker 3: here's the rule of thumb.
• 28:45
  Speaker 6: IRA.
• 28:45
  Speaker 2: IRA.
• 28:46
  Speaker 3: First, right?
• 28:48
  Speaker 2: How come?
• 28:48
  Speaker 3: We know it's never in a trust. We know all
• 28:51
  Speaker 3: the time you're going in a nursing home, this asset
• 28:54
  Speaker 3: is guaranteed not in the trust because you couldn't put
• 28:57
  Speaker 3: it in and be a big tax. That's number one.
• 29:00
  Speaker 3: So it's at risk. Number two, even if I wasn't
• 29:04
  Speaker 3: going in the nursing home right away, saving an IRA
• 29:07
  Speaker 3: for children who have to take it out over 10
• 29:09
  Speaker 3: years could put them into a higher bracket. Not necessarily
• 29:13
  Speaker 3: in this case, because there's a small number, but it
• 29:15
  Speaker 3: could put kids into a higher income tax bracket, then
• 29:19
  Speaker 3: you taking it out over your retirement. So another good reason.
• 29:23
  Speaker 3: And the third reason to use it first is especially
• 29:26
  Speaker 3: in this case, yes, every penny that comes out of
• 29:29
  Speaker 3: an IRA is taxable income. I get it. Boy, but
• 29:33
  Speaker 3: if I'm using it for my care, I'm going to
• 29:35
  Speaker 3: get an offsetting medical deduction. So it's actually tax efficient.
• 29:40
  Speaker 3: at the same time.
• 29:41
  Speaker 2: Because you're getting that write-off.
• 29:43
  Speaker 3: And meanwhile, my million dollars sitting in this irrevocable trust
• 29:46
  Speaker 3: that we put together is protected and growing just fine.
• 29:50
  Speaker 3: Just what we want it to do. So that's sitting
• 29:52
  Speaker 3: there doing what it needs to do. That's number one.
• 29:55
  Speaker 3: Number two, the Roth. Well, Yeah, I mean, a Roth
• 29:59
  Speaker 3: is not taxable. I get it. It's a great asset
• 30:01
  Speaker 3: to leave to your family. But it nevertheless is at
• 30:04
  Speaker 3: risk because it's not in the trust. Now, people say, well,
• 30:07
  Speaker 3: why wouldn't you put a Roth in a trust? Well,
• 30:09
  Speaker 3: because it wouldn't be taxable when you take it out.
• 30:12
  Speaker 3: I get that. But once you take it out of
• 30:14
  Speaker 3: the Roth and put it in a trust, it's what?
• 30:17
  Speaker 3: No longer a Roth. So now you have to realize
• 30:20
  Speaker 3: that it's growing taxable.
• 30:23
  Speaker 6: Yes.
• 30:23
  Speaker 3: Not that that's a problem, and it's protected, but that
• 30:27
  Speaker 3: is the trade-off. Okay, so at the end of the day,
• 30:30
  Speaker 3: this Roth is not in the trust, so might as
• 30:33
  Speaker 3: well spend it first.
• 30:33
  Speaker 2: Use that next.
• 30:34
  Speaker 3: Again, I got money. So that's $ 125, 000. That's got to
• 30:39
  Speaker 3: be pretty close to a year, I would think. No,
• 30:41
  Speaker 3: not at home. Not at home care?
• 30:43
  Speaker 2: I have clients that are spending $ 25, 000 a month to
• 30:46
  Speaker 2: bring in 24-7 care.
• 30:47
  Speaker 3: At home? At home, yeah. Wow, nursing homes are actually cheaper.
• 30:50
  Speaker 2: It is cheaper, but they don't want to go.
• 30:51
  Speaker 3: No, I get it.
• 30:52
  Speaker 2: Yeah, so if it's 24-7 skilled care, it's $ 25, 000 a
• 30:54
  Speaker 2: month easy.
• 30:54
  Speaker 1: Yeah.
• 30:59
  Speaker 2: So let's say she makes it past the five-month mark.
• 31:01
  Speaker 2: What do they do next?
• 31:02
  Speaker 3: And then they can, again, since it's a trust that
• 31:06
  Speaker 3: if we created it, did we? I don't know if
• 31:09
  Speaker 3: we did or we didn't.
• 31:09
  Speaker 2: They didn't say that.
• 31:11
  Speaker 3: So if it's drafted right, there should be a way
• 31:15
  Speaker 3: to make gifts out of the trust to children who
• 31:17
  Speaker 3: could then help out. So you can always make gifts
• 31:20
  Speaker 3: out of these trusts to children because, you know, not
• 31:23
  Speaker 3: just for this reason, but because during life you might
• 31:26
  Speaker 3: want to give children, right?
• 31:27
  Speaker 2: Sure.
• 31:28
  Speaker 3: If it's been in the trust more than five years,
• 31:30
  Speaker 3: the distribution out is a non-issue. So just distribute it
• 31:34
  Speaker 3: out to kids, grandkids for education, whatnot. So there's a way. Okay.
• 31:37
  Speaker 3: A mechanism. Good. Good, good. But folks, this is a
• 31:41
  Speaker 3: prime example of why you need to get this guide,
• 31:44
  Speaker 3: Last Minute Medicaid Eligibility Techniques. It gives you an example
• 31:48
  Speaker 3: of a $ 2 million case and applying for Medicaid with
• 31:52
  Speaker 3: no planning done. You would think that's impossible. It's not.
• 31:56
  Speaker 3: Get the guide and learn how They can convert countable
• 31:59
  Speaker 3: assets to non-countable assets. Each asset is treated differently from
• 32:04
  Speaker 3: rental properties to homes to annuities with our excess assets
• 32:08
  Speaker 3: to IRAs, life insurance. But most importantly, folks, it works
• 32:13
  Speaker 3: for people, whether you've done your planning or you haven't,
• 32:15
  Speaker 3: much like this. Help yourself. Don't write the check to
• 32:19
  Speaker 3: the nursing home. 866-848-5699. Or LegalExchangeShow.com. You can download it
• 32:28
  Speaker 3: right there. 866-848-5699. Or LegalExchangeShow.com. Or go to Cushing, Dolan,
• 32:37
  Speaker 3: PC's Instagram page for more information.
• 32:40
  Speaker 2: Todd, our last question comes from Norman in Norwood. And
• 32:44
  Speaker 2: she writes... That's cute, Norman from Norwood. My mother recently
• 32:47
  Speaker 2: passed away. She had her home in her irrevocable trust,
• 32:51
  Speaker 2: which you created, of which I am the trustee.
• 32:54
  Speaker 3: Okay.
• 32:54
  Speaker 2: What is the process now to wrap up her affairs?
• 32:57
  Speaker 2: So it doesn't sound like mom went into a nursing home,
• 33:00
  Speaker 2: just passed away after she did her trust planning.
• 33:04
  Speaker 3: So everything worked out well here. In other words, she
• 33:07
  Speaker 3: did her planning, but again, never really needed the nursing home.
• 33:11
  Speaker 3: Which is good. Yeah, so people say, well, then was
• 33:14
  Speaker 3: it a waste? No, it wasn't a waste. Remember, not
• 33:17
  Speaker 3: everybody goes to a nursing home, but everybody dies. So
• 33:21
  Speaker 3: we need to understand that. That's just one of the
• 33:25
  Speaker 3: benefits of planning. In this case, turned out good for her.
• 33:29
  Speaker 3: It wasn't needed. But what did it still do for her? Well,
• 33:33
  Speaker 3: the assets that were in there avoided probate. Perfect. That's
• 33:36
  Speaker 3: what she wanted. And again, if she's single, but if
• 33:40
  Speaker 3: it was a married couple, they could have also been
• 33:42
  Speaker 3: designed to shelter assets for estate tax purposes. For a
• 33:46
  Speaker 3: single person, not so much. But for a married couple,
• 33:49
  Speaker 3: we could have still used the irrevocable Medicaid trust to
• 33:53
  Speaker 3: double The amount of the exemption. Good. Maybe eliminating at
• 33:57
  Speaker 3: least mass estate tax. Next and third, the final thing
• 34:02
  Speaker 3: that this trust is probably doing for her is it's
• 34:04
  Speaker 3: going to allow for a bloodline distribution to her family, again,
• 34:08
  Speaker 3: without probate. So we would need to read the document
• 34:11
  Speaker 3: to see how to wrap it up, but likely it's
• 34:15
  Speaker 3: going to be one of two things. It's going to say,
• 34:18
  Speaker 3: you know, equally to my kids. It just says my mother.
• 34:22
  Speaker 3: I don't know if there's other siblings.
• 34:23
  Speaker 2: Let's assume there's a couple kids, maybe a house and
• 34:25
  Speaker 2: some investments or something.
• 34:28
  Speaker 3: So it probably says something like, you know, equally to
• 34:31
  Speaker 3: the kids if living. And now there's the two options, really.
• 34:36
  Speaker 3: And we talked about one earlier in the program. It
• 34:39
  Speaker 3: could be hold it in trust, you know, with kids.
• 34:44
  Speaker 3: Divorce proof protection, creditor protection, if there's a special needs.
• 34:48
  Speaker 1: All that.
• 34:48
  Speaker 3: And so the wrapping up might not wrap up. It
• 34:51
  Speaker 3: might say, I might be telling her, you know what?
• 34:54
  Speaker 3: You need to have the trustee create ID numbers for
• 34:59
  Speaker 3: the buckets, put the assets, retitle the assets into the bucket.
• 35:04
  Speaker 3: And then from there, read the language. The trustee can
• 35:08
  Speaker 3: make distributions out in the trustee's sole discretion to these people.
• 35:13
  Speaker 1: Kids.
• 35:13
  Speaker 3: Say there's three. But again, each kid can only take
• 35:17
  Speaker 3: from their bucket. So you don't have to worry about
• 35:20
  Speaker 3: robbing Peter to pay Paul. And it can even come
• 35:23
  Speaker 3: out generally to the grandkids from that bucket. So if
• 35:27
  Speaker 3: there's kids and grandkids, you could make distributions out as well.
• 35:32
  Speaker 3: So that would be the one option. I shouldn't say
• 35:35
  Speaker 3: the better or worse way. It's just one option.
• 35:37
  Speaker 2: And they have to work with your office directly to
• 35:39
  Speaker 2: do that, correct?
• 35:40
  Speaker 3: Well, to set up the accounts, they probably should, yeah.
• 35:42
  Speaker 3: But once they're set up and running, the trustee really
• 35:45
  Speaker 3: can be on their own and make a lot of decisions.
• 35:47
  Speaker 3: They might have to work with an independent trustee to
• 35:49
  Speaker 3: make the distributions, but that's a great way of doing it.
• 35:55
  Speaker 3: Another way would be a lot simpler, maybe, where you
• 35:58
  Speaker 3: just say, you know what, we didn't care about those things,
• 36:00
  Speaker 3: or maybe there wasn't a ton of money in here.
• 36:03
  Speaker 3: Divide it by three and pay it out. Well, if
• 36:06
  Speaker 3: you pay it out, then what we would do is
• 36:08
  Speaker 3: we probably wouldn't need to necessarily go through getting new
• 36:11
  Speaker 3: ID numbers. And we would just take the deed and
• 36:14
  Speaker 3: transfer it out to the kids. I'm sure that'll have
• 36:17
  Speaker 3: language in there that says, you know, first sell it
• 36:20
  Speaker 3: unless the kids want it. And we don't want them
• 36:22
  Speaker 3: fighting over the real estate so they can buy each
• 36:25
  Speaker 3: other out if they wanted to. Distribute it out. New
• 36:27
  Speaker 3: deeds and release the lien. If I need to file
• 36:30
  Speaker 3: a tax return, I would. I mean, I don't know
• 36:32
  Speaker 3: if they're over the $ 2 million mark. If there is,
• 36:34
  Speaker 3: then we've got to file a mass tax return and
• 36:36
  Speaker 3: release the liens before we distribute it out. And the
• 36:39
  Speaker 3: final thing is, if it is paid out, we would
• 36:41
  Speaker 3: not only prepare the deed out, but we would work
• 36:43
  Speaker 3: with someone like you to retitle the investments.
• 36:46
  Speaker 2: The investments.
• 36:46
  Speaker 3: And those would be distributed out too. So probably the
• 36:49
  Speaker 3: two ways to work. Folks, end of the month, last
• 36:53
  Speaker 3: chance to get it. Last time I'm going to say it.
• 36:55
  Speaker 3: Get the guide, 866-848-7000. 866-848-5699 or LegalExchangeShow.com and learn how
• 37:02
  Speaker 3: to protect those assets last minute from the nursing home.
• 37:05
  Speaker 2: 866-848-5699. If you have a question you would like to
• 37:12
  Speaker 2: ask Todd, visit his website, LegalExchangeShow.com, and click on the
• 37:16
  Speaker 2: Ask Todd tab. Maybe I'll be able to read your
• 37:19
  Speaker 2: question on the air, and hopefully his answer will stop
• 37:22
  Speaker 2: you from becoming one of his next real-life stories. You've
• 37:25
  Speaker 2: been listening to Todd Lutzke, a partner with the law
• 37:28
  Speaker 2: firm of Cushing & Dolan. I'm Susan Powers, a financial
• 37:31
  Speaker 2: advisor with the Armstrong Advisory Group, and we'll be back
• 37:35
  Speaker 2: with more after this quick break on The Legal Exchange
• 37:38
  Speaker 2: with Todd Lutzke.
• 37:40
  Speaker 1: One day, you're living in your own home. The next,
• 37:43
  Speaker 1: you can't return home after rehab. Now, you're faced with
• 37:46
  Speaker 1: a nursing home bill of more than $ 14, 000 a month
• 37:49
  Speaker 1: and wondering how you're going to pay for it. These
• 37:52
  Speaker 1: situations can occur without warning, but Cushing and Dolan can help.
• 37:56
  Speaker 1: Before you make any major decisions, get the facts. Cushing
• 38:00
  Speaker 1: and Dolan's new guide, Last Minute Medicaid Eligibility, explains common
• 38:04
  Speaker 1: misconceptions about Medicaid, what assets may or may not be
• 38:07
  Speaker 1: at risk, and why the first answer you receive isn't
• 38:10
  Speaker 1: always your only option. Call right now, 866-848-5699, and get
• 38:15
  Speaker 1: your free copy of Last Minute Medicaid Eligibility. That's 866-848-5699.
• 38:22
  Speaker 1: Or you can request the guide online at LegalExchangeShow.com. That's LegalExchangeShow.com.
• 38:28
  Speaker 1: The proceeding was paid for and the views expressed are
• 38:30
  Speaker 1: solely those of Cushing and Dolan. Cushing and Dolan and
• 38:32
  Speaker 1: or Armstrong Advisory may contact you offering legal or investment services.
• 38:36
  Speaker 1: Cushing and Dolan and Armstrong Advisory do not endorse each
• 38:38
  Speaker 1: other and are not affiliated.
• 38:40
  Speaker 3: Seeing some high volume out there on those roads today, folks.
• 38:43
  Speaker 5: 93 northbound at exit.
• 38:44
  Speaker 2: Sound familiar?
• 38:45
  Speaker 1: The Braintree split is backed up.
• 38:46
  Speaker 2: If your commute feels endless, it might be time to
• 38:49
  Speaker 2: ask a bigger question. Are you working because you want
• 38:51
  Speaker 2: to or because you think you have to? At the
• 38:53
  Speaker 2: Armstrong Advisory Group, our financial advisors help individuals and families
• 38:58
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• 39:04
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• 39:07
  Speaker 2: If you're concerned about what path you're on or have
• 39:10
  Speaker 2: questions about your financial plan, we may be able to help.
• 39:13
  Speaker 2: Visit armstrongadvisory.com and schedule a no-obligation meeting. The Armstrong Advisory Group.
• 39:19
  Speaker 2: We answer only to you. Schedule your meeting today at armstrongadvisory.com.
• 39:24
  Speaker 2: That's armstrongadvisory.com.
• 39:26
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 39:28
  Speaker 1: registered investment advisor.
• 39:42
  Speaker 5: Our nation's veterans answered the call to serve. Today, the
• 39:46
  Speaker 5: Disabled American Veterans Department of Massachusetts is there to support
• 39:50
  Speaker 5: our veterans through benefits assistance, transportation services, advocacy, and community outreach.
• 39:56
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• 39:59
  Speaker 5: life's challenges alone. You can make a difference by volunteering
• 40:03
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• 40:07
  Speaker 5: at davma.org.
• 40:10
  Speaker 1: A nursing home stay can cost more than $ 14, 000 a month.
• 40:14
  Speaker 1: Before you assume you have to spend everything to qualify
• 40:16
  Speaker 1: for Medicaid, get the facts. Call 866-848-5699 for your free
• 40:21
  Speaker 1: copy of Cushing and Dolan's new guide, Last Minute Medicaid Eligibility.
• 40:24
  Speaker 1: That's 866-848-5699 or request it online at LegalExchangeShow.com. The proceeding
• 40:30
  Speaker 1: was paid for and the views expressed are solely those
• 40:32
  Speaker 1: of Cushing and Dolan. Cushing and Dolan and or Armstrong
• 40:34
  Speaker 1: Advisory may contact you offering legal or investment services. Cushing
• 40:37
  Speaker 1: and Dolan and Armstrong Advisory do not endorse each other
• 40:39
  Speaker 1: and are not affiliated. You're tuned to The Legal Exchange
• 40:43
  Speaker 1: with Todd Lutzke. If you or a loved one needs
• 40:45
  Speaker 1: a nursing home stay, call Todd right now at 866-848-5699
• 40:50
  Speaker 1: and let him make sure your assets are protected. That's
• 40:53
  Speaker 1: 866-848-5699 or visit him online at LegalExchangeShow.com.
• 41:00
  Speaker 2: Welcome back into The Legal Exchange with Todd Lutzke. I'm
• 41:03
  Speaker 2: Susan Powers, a financial advisor with the Armstrong Advisory Group,
• 41:07
  Speaker 2: and I'm joined, of course, by Todd Lutzke, a partner
• 41:10
  Speaker 2: with the law firm of Cushing & Dolan with a
• 41:13
  Speaker 2: master's in taxation. So, Todd, we're talking all about last-minute
• 41:17
  Speaker 2: Medicaid eligibility, and one of the techniques... is pooled trust.
• 41:23
  Speaker 2: So how is a pooled trust different than a regular
• 41:27
  Speaker 2: irrevocable trust, like a Medicaid irrevocable trust, if they're both
• 41:31
  Speaker 2: used for the same purposes?
• 41:32
  Speaker 3: Yeah, it's different. It's different in the sense that it's
• 41:35
  Speaker 3: got special rules associated with it.
• 41:38
  Speaker 2: Special powers, little loopholes, I like to think.
• 41:41
  Speaker 1: Of them as.
• 41:42
  Speaker 3: First thing we need to know is we don't draft them. Okay.
• 41:46
  Speaker 3: So you can't come into my office and say, let's
• 41:48
  Speaker 3: create a pooled trust. No, we're not going to do that. One,
• 41:53
  Speaker 3: you wouldn't do that because the irrevocable trusts we created
• 41:58
  Speaker 3: are designed for advanced planning. You're coming in today healthy.
• 42:03
  Speaker 5: Yes.
• 42:04
  Speaker 3: Todd, we want to get a clock started. Okay.
• 42:07
  Speaker 2: Yeah, five-year look back.
• 42:08
  Speaker 3: Let's do our planning. Let's avoid probate taxes, nursing home protection,
• 42:13
  Speaker 3: set up a trust. That's what we do.
• 42:15
  Speaker 1: Good.
• 42:16
  Speaker 3: Yep. Great. Irrevocable Medicaid trust. A pooled trust is something
• 42:20
  Speaker 3: you would only do last minute, right? Which is like
• 42:25
  Speaker 3: what our guide is about, right? Last minute techniques to
• 42:28
  Speaker 3: get on Medicaid. So a couple of things with this. One,
• 42:34
  Speaker 3: if you're married and one of you are going into
• 42:37
  Speaker 3: the nursing home and last minute you want to try
• 42:40
  Speaker 3: to save assets, you probably would never use a pooled trust.
• 42:43
  Speaker 2: How come?
• 42:44
  Speaker 3: Because we have a healthy spouse. Oh, with better options.
• 42:47
  Speaker 3: A much better option. So if we have a healthy spouse,
• 42:50
  Speaker 3: I want to then do all the last minute technique
• 42:52
  Speaker 3: planning to get stuff to the healthy spouse to make
• 42:55
  Speaker 3: sure the healthy spouse can go on and live comfortably
• 42:59
  Speaker 3: and not be bankrupt taking care of the sick spouse.
• 43:02
  Speaker 3: So that's kind of the reason.
• 43:04
  Speaker 5: Yep.
• 43:06
  Speaker 3: But if you're single, so this is a criteria for
• 43:09
  Speaker 3: this pooled trust. One, you kind of have to be single.
• 43:13
  Speaker 1: Mm-hmm.
• 43:14
  Speaker 3: Entering a nursing home and have excess assets that you
• 43:19
  Speaker 3: don't want to protect.
• 43:20
  Speaker 2: Okay.
• 43:21
  Speaker 3: Okay. So now we've determined that there are excess assets.
• 43:23
  Speaker 3: What do we do with them? We put them in
• 43:25
  Speaker 3: these pooled trusts, usually created by whatever the bank or
• 43:28
  Speaker 3: the financial institution is that's going to be managing the
• 43:31
  Speaker 3: money inside the pooled trust. The trustee on that trust
• 43:35
  Speaker 3: is always going to be, I think they use plan
• 43:38
  Speaker 3: of Massachusetts and Rhode Island. It's a charitable organization. Okay.
• 43:43
  Speaker 3: They will serve as trustee and this institution will create
• 43:47
  Speaker 3: the trust and the money will go in there. Probably
• 43:51
  Speaker 3: along with a lot of other people's money. That's why
• 43:53
  Speaker 3: it's a pooled trust. Got it. But your money is,
• 43:56
  Speaker 3: of course, in a separate account. They have to manage it.
• 43:59
  Speaker 3: And that money then is available for you, even though
• 44:02
  Speaker 3: you're in the nursing home. You might never use it.
• 44:04
  Speaker 6: Right.
• 44:05
  Speaker 3: It might just sit there and grow, which is fine.
• 44:07
  Speaker 3: The reason you did it, though, is by transferring it
• 44:10
  Speaker 3: to this trust, pooled trust, last minute. There's no waiting period.
• 44:15
  Speaker 2: No five-year look back.
• 44:16
  Speaker 3: One of the only times. So this sounds too good
• 44:19
  Speaker 3: to be true, except for the fact that there is
• 44:21
  Speaker 3: a payback provision. Okay.
• 44:23
  Speaker 4: Right?
• 44:23
  Speaker 3: So you can get on Medicaid and then there's a
• 44:26
  Speaker 3: payback provision. So those are the main rules. A couple
• 44:29
  Speaker 3: of other rules. But folks, this is one of the
• 44:33
  Speaker 3: reasons you get this guide. It gives an example of
• 44:36
  Speaker 3: a $ 2 million client, husband, wife, going into the nursing home.
• 44:40
  Speaker 3: What do we do last minute? How do you use
• 44:42
  Speaker 3: annuities to deal with excess resources? What do you do
• 44:45
  Speaker 3: with rental property? What do you do with a primary residence?
• 44:48
  Speaker 3: How do we deal with their 401ks and IRAs? So
• 44:52
  Speaker 3: many techniques to deal with each asset and especially different
• 44:57
  Speaker 3: for married couples versus single people. This plan is right
• 45:00
  Speaker 3: for you whether you've done planning and are entering a
• 45:02
  Speaker 3: nursing home or haven't done planning and are entering a
• 45:06
  Speaker 3: nursing home. Don't just write the check. Get the guide.
• 45:08
  Speaker 3: It's the end of the month, folks. 866- 848-5699 or LegalExchangeShow.com. Again,
• 45:17
  Speaker 3: 866-848-5699 or LegalExchangeShow.com. And always go to Cushing Dolan PC
• 45:25
  Speaker 3: for more information on our Instagram page.
• 45:28
  Speaker 2: So Todd, when you're in the nursing home and you
• 45:29
  Speaker 2: have one of these pooled trusts, what can you actually
• 45:31
  Speaker 2: use the money for?
• 45:33
  Speaker 3: So they can be invested, obviously, by the institution any
• 45:37
  Speaker 3: way you want. And then money can come out to
• 45:41
  Speaker 3: help you. It usually isn't used for food or shelter
• 45:44
  Speaker 3: because you already have that. But for extra stuff, I
• 45:47
  Speaker 3: don't know if we need to buy something for the
• 45:49
  Speaker 3: room or you want to provide extra care, you want
• 45:52
  Speaker 3: a person coming in. And there was one other question
• 45:59
  Speaker 3: I was going to add. I was going to add
• 46:00
  Speaker 3: one other thing was, at the end, not only do
• 46:04
  Speaker 3: you have the payback But there's also, remember, Plan of
• 46:07
  Speaker 3: Massachusetts and Rhode Island is a charity serving as trustee.
• 46:10
  Speaker 1: Right.
• 46:11
  Speaker 2: How do they come into play?
• 46:12
  Speaker 3: They get a little piece, too.
• 46:13
  Speaker 1: Okay.
• 46:13
  Speaker 3: So when you die, you got to pay the charity
• 46:19
  Speaker 3: how much? If you were in the nursing home for
• 46:23
  Speaker 3: two years or less, 10%. If you were in the
• 46:28
  Speaker 3: nursing home on Medicaid for more than two years, 20%
• 46:33
  Speaker 3: to the charity. Then pay the state.
• 46:37
  Speaker 1: Yeah.
• 46:38
  Speaker 3: Then what's left goes to the family.
• 46:41
  Speaker 2: Okay. So everybody gets paid.
• 46:42
  Speaker 3: It's a win, win, win. This is why I struggled
• 46:45
  Speaker 3: so long. You know, Susan, since like 2016, they started,
• 46:48
  Speaker 3: you know, sort of fussing around with trying to get
• 46:52
  Speaker 3: rid of these.
• 46:52
  Speaker 6: Yeah.
• 46:52
  Speaker 2: They were fighting them.
• 46:53
  Speaker 3: Yeah. And finally they got their legislation together and said,
• 46:57
  Speaker 3: we're going to keep them. I don't see why not.
• 46:59
  Speaker 3: It's a, it's a win for everybody.
• 47:01
  Speaker 2: So looking at this guide, you have all these different options, Todd.
• 47:05
  Speaker 2: and we're talking specifically about single people, how do you
• 47:08
  Speaker 2: determine if you've got this bucket of excess assets, whether
• 47:12
  Speaker 2: you would use one of these pooled trusts versus an annuity?
• 47:17
  Speaker 3: Yeah.
• 47:17
  Speaker 2: What would lead you one way or the other?
• 47:18
  Speaker 3: That's a great point. I did say that you would
• 47:20
  Speaker 3: use these not for married couples, but for single people.
• 47:23
  Speaker 3: So we've kind of limited it that way. But yeah,
• 47:26
  Speaker 3: you're right. Even then, if I don't want to pay
• 47:29
  Speaker 3: the charity and I only want to pay the state back,
• 47:33
  Speaker 3: because remember, even with These single people, there's a lien
• 47:38
  Speaker 3: on an annuity. So if I only want to pay
• 47:41
  Speaker 3: the state back and not a charity, well, then maybe
• 47:44
  Speaker 3: an annuity is a better approach. But you really have
• 47:47
  Speaker 3: to run the numbers, right? So it depends, one, how
• 47:52
  Speaker 3: old you are, because the older you are, the shorter
• 47:56
  Speaker 3: the term of the annuity.
• 47:57
  Speaker 4: Right.
• 47:58
  Speaker 2: And some of them won't issue them after a certain
• 48:00
  Speaker 2: age either, annuity companies.
• 48:01
  Speaker 1: Right.
• 48:02
  Speaker 3: You start getting into that 88, 89, 90-year-old range, you're
• 48:06
  Speaker 3: more likely going to be forced to use the pooled trust.
• 48:10
  Speaker 2: Because if you have a million bucks, right, not protected,
• 48:13
  Speaker 2: and you're that age.
• 48:14
  Speaker 3: And you have to pay out a million dollars over
• 48:16
  Speaker 3: three years or four-year life expectancy.
• 48:18
  Speaker 2: You've got more income than what the nursing home costs.
• 48:21
  Speaker 6: Right.
• 48:21
  Speaker 3: The numbers just are prohibiting you from doing it because
• 48:28
  Speaker 3: I still have to private pay. The goal is to
• 48:30
  Speaker 3: make your income smaller than like $ 6, 500 a month. Then
• 48:34
  Speaker 3: it works.
• 48:35
  Speaker 2: Got it.
• 48:36
  Speaker 3: Okay. And so I think those are the numbers that
• 48:38
  Speaker 3: you have to look at when you're driving this. Now,
• 48:41
  Speaker 3: if you're younger, and let's say I have a 10-year payout, well,
• 48:47
  Speaker 3: then I run the numbers. I have $ 500, 000 that I
• 48:51
  Speaker 3: need to get rid of, and I buy an annuity
• 48:54
  Speaker 3: to pay out over 10 years. Well, monthly income might
• 48:57
  Speaker 3: be pretty small.
• 48:58
  Speaker 2: Right. And then with the annuity versus the payout at
• 49:01
  Speaker 2: the end with the pooled trust, what happens with the
• 49:03
  Speaker 2: money that's in that annuity that's left?
• 49:05
  Speaker 3: So let's say, let's say the nursing home costs for
• 49:08
  Speaker 3: easy numbers, 6,500 bucks. Let's say I've got 2,500 in
• 49:12
  Speaker 3: social security, which leaves me what? $ 4, 000, right? And the
• 49:17
  Speaker 3: annuity is paying $ 2, 000. So now the state is paying $ 2, 000
• 49:22
  Speaker 3: to make up the difference. Well, that's the lien. So
• 49:27
  Speaker 3: if I die and let's say I was in there
• 49:29
  Speaker 3: for 12 months, that's $ 24, 000 or $ 48, 000 after two years.
• 49:34
  Speaker 3: So let's say I was in there for two years
• 49:36
  Speaker 3: and died. We owe the state back $ 48, 000. Okay. Well,
• 49:41
  Speaker 3: if there's $ 300, 000 left in the annuity, well, $ 48, 000 will
• 49:46
  Speaker 3: go to the state.
• 49:46
  Speaker 2: So the payments go to the state until they're paid off?
• 49:49
  Speaker 3: Well, you can work with the annuity company and look
• 49:51
  Speaker 3: at the contracts and see if there's ways to break
• 49:53
  Speaker 3: it and have lump sums. And then the balance would
• 49:56
  Speaker 3: go to the family. More options. When you're dealing with
• 49:59
  Speaker 3: last-minute planning like this, it's a matter of stretching money out.
• 50:08
  Speaker 3: to provide for the person who's in the nursing home
• 50:10
  Speaker 3: so they're taken care of and hoping there'll be more
• 50:13
  Speaker 3: money left at the end of the day, folks. That's
• 50:15
  Speaker 3: what it comes down to. But folks, I can't say enough.
• 50:18
  Speaker 3: I can't tell you all the answers on the radio.
• 50:20
  Speaker 3: You got to call and get the guide. Last minute
• 50:22
  Speaker 3: Medicaid eligibility planning.
• 50:24
  Speaker 2: Last chance.
• 50:24
  Speaker 3: Last chance. I'm all done. 866-848-5699 or LegalExchangeShow.com. It's good
• 50:33
  Speaker 3: for you if you've planned or you haven't planned. 866- 848-5699.
• 50:40
  Speaker 3: There's always something outside the trust that needs to be
• 50:43
  Speaker 3: protected last minute.
• 50:45
  Speaker 2: Todd Lutzke from the law firm of Cushing and Dolan,
• 50:47
  Speaker 2: thank you so much.
• 50:48
  Speaker 3: Thank you, Susan. Always a pleasure.
• 50:50
  Speaker 2: I'm Susan Powers, a financial advisor with the Armstrong Advisory Group.
• 50:53
  Speaker 2: We thank you for joining us, and we'll be back
• 50:56
  Speaker 2: again next week on The Legal Exchange with Todd Lutzke.
• 51:00
  Speaker 1: One day, you're living in your own home. The next,
• 51:03
  Speaker 1: you can't return home after rehab. Now, you're faced with
• 51:06
  Speaker 1: a nursing home bill of more than $ 14, 000 a month
• 51:09
  Speaker 1: and wondering how you're gonna pay for it. These situations
• 51:13
  Speaker 1: can occur without warning, but Cushing and Dolan can help.
• 51:16
  Speaker 1: Before you make any major decisions, get the facts. Cushing
• 51:20
  Speaker 1: and Dolan's new guide, Last Minute Medicaid Eligibility, explains common
• 51:24
  Speaker 1: misconceptions about Medicaid, what assets may or may not be
• 51:27
  Speaker 1: at risk, and why the first answer you receive isn't
• 51:30
  Speaker 1: always your only option. Call right now, 866-848-5699, and get
• 51:35
  Speaker 1: your free copy of Last Minute Medicaid Eligibility. That's 866-848-5699.
• 51:42
  Speaker 1: Or you can request the guide online at LegalExchangeShow.com. That's LegalExchangeShow.com.
• 51:48
  Speaker 1: The proceeding was paid for and the views expressed are
• 51:50
  Speaker 1: solely those of Cushing and Dolan. Cushing and Dolan and
• 51:52
  Speaker 1: or Armstrong Advisory may contact you offering legal or investment services.
• 51:56
  Speaker 1: Cushing and Dolan and Armstrong Advisory do not endorse each
• 51:58
  Speaker 1: other and are not affiliated.
• 52:02
  Speaker 2: You've been saying one more year for the past five years,
• 52:05
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• 52:39
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• 52:46
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• 52:48
  Speaker 1: The proceeding was paid for by Armstrong Advisory Group, a
• 52:50
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• 52:54
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• 52:59
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• 53:00
  Speaker 5: For many Massachusetts veterans, getting to a medical appointment isn't
• 53:03
  Speaker 5: always easy. That's why the Disabled American Veterans Department of
• 53:07
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• 53:11
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• 53:15
  Speaker 5: the care they've earned through their service. You can help
• 53:19
  Speaker 5: by volunteering or making a donation. Learn more at DAVMA.org.
• 53:24
  Speaker 5: That's DAVMA.org.
• 53:29
  Speaker 1: A nursing home stay can cost more than $ 14, 000 a month.
• 53:33
  Speaker 1: Before you assume you have to spend everything to qualify
• 53:35
  Speaker 1: for Medicaid, get the facts. Call 866-848-5699 for your free
• 53:40
  Speaker 1: copy of Cushing and Dolan's new guide, Last Minute Medicaid Eligibility.
• 53:44
  Speaker 1: That's 866-848-5699 or request it online at LegalExchangeShow.com. The proceeding
• 53:50
  Speaker 1: was paid for and the views expressed are solely those
• 53:52
  Speaker 1: of Cushing and Dolan. Cushing and Dolan and or Armstrong
• 53:54
  Speaker 1: Advisory may contact you offering legal or investment services. Cushing
• 53:57
  Speaker 1: and Dolan and Armstrong Advisory do not endorse each other
• 53:59
  Speaker 1: and are not affiliated.