How Can I Use an ABLE Account for My Special Needs Child?

For those with special needs and/or their caretakers, securing a financial future is essential. The Achieving a Better Life Experience (ABLE) Act lets qualified individuals and/or their families start an ABLE savings account, without impacting their eligibility for needs-based public benefits programs, like Supplemental Security Income (SSI) and Medicaid.

The Legal Examiner’s recent article, “The ABCs of ABLE Accounts” says that, when the ABLE Act passed, individuals with more than $2,000 in assets weren’t eligible for those benefits.

For those people who got a personal injury lawsuit or received another lump sum of money like an inheritance, this rule was an issue. Some individuals used a special needs trust, a pooled trust, an ABLE account, or another solution to be sure they would comply with the programs’ rules. Many of these choices come with tax advantages.

With an ABLE account, beneficiaries and their families have more choices and control over the account. The cost of establishing an ABLE account most likely will also be less than that of a trust. Determining which option is best, depends on an individual’s unique circumstances.

An ABLE account can pay for qualified disability expenses (QDEs), which are related to the blindness or disability of the beneficiary. A QDE includes (but is not limited to) expenses for things like education, housing, transportation, employment training and support, assistive technology and related services, prevention and wellness.

When a beneficiary with an ABLE account dies, any funds still in the account will be used to finish paying all outstanding QDEs and may then reimburse the state for Medicaid benefits that he or she received.

To be eligible for an ABLE account, a person must be eligible for SSI based on disability or blindness that began before age 26; must be entitled to disability insurance benefits, childhood disability benefits, or disabled widow’s or widower’s benefits based on disability or blindness that began before age 26; or must certify that there is an impairment meeting the specified criteria or is blind, and the disability or blindness must have occurred before age 26.

A person with “signature authority” can also establish and administer an ABLE account for a beneficiary who is a minor or an adult who is incapable of managing the account. The individual with signature authority must be a parent, legal guardian, or someone acting under power of attorney.

An elder law attorney can help with the application process and make certain that all the right steps are taken in the beneficiary’s best interest.

Reference: The Legal Examiner (February 11, 2019) “The ABCs of ABLE Accounts”

Suggested Key Terms: Special Needs Trust, Medicaid Planning Lawyer, Disability, ABLE Account, Elder Law Attorney

What Does the Tax Cuts and Jobs Act Mean for My Estate Plan?

If you haven’t reexamined your estate plan in light of the changes in the Tax Cuts and Jobs Act, do so now, says The Kansas City Star in its article “Talk to estate attorney about impacts of Tax Cuts and Jobs Act.”

A big change in the tax law is the doubling of the federal estate tax exemption from $5.49 million per person in 2017 to $11.18 million per person in 2018 (or $22.36 million per couple). In 2019, the federal estate tax exemption is $11.4 million per person (or $22.8 million per couple).

You should review any wills or trusts drafted prior to the passing of the 2017 legislation. If the trusts use formulas tied to the federal estate tax exemption, then there could be unintended ramifications because of the new larger exemption amount.

You should also look at trusts drafted prior to 2011, when portability was introduced. This legislation allows for “portability” of the deceased spouse’s unused estate exemption. Therefore, the surviving spouse’s estate can now use any exemption amount that wasn’t used by the first deceased spouse’s estate.

The Tax Cuts and Jobs Act didn’t change the step-up of basis. However, the unintended effects of this “non-event” are potentially more significant now. When the decedent dies, the heir’s cost basis of many assets becomes the value of the asset on the date of their death. Thus, highly appreciated assets that avoided income taxes to the decedent, could also avoid or minimize income taxes to the heirs.

Maintaining the ability for assets to receive a step-up in basis is a more important part of estate planning now, because of the larger federal estate tax exemption. However, note that beneficiaries who inherit assets from a bypass or credit shelter trust upon the surviving spouse’s death don’t benefit from a “second” step-up of basis. Instead, the basis of the heir’s inheritance would be the original basis on the first spouse’s death.

As a result, bypass trusts are much less useful than in the past and could have negative income tax impacts for the heirs. This is particularly true, if the assets appreciated significantly after the first spouse’s death or if there was a relatively long amount of time between spouses’ deaths. If your current trust establishes a bypass trust at your death, you might want to ask your estate attorney about restructuring how the bypass trust is funded for the larger federal estate tax exemption.

If you haven’t looked at your estate planning documents with an estate attorney recently, do it in 2019.

Reference: The Kansas City Star (February 7, 2019) “Talk to estate attorney about impacts of Tax Cuts and Jobs Act”

Suggested Key Terms: Estate Planning Lawyer, Trusts, Trustee, Asset Protection, Unified Federal Estate & Gift Tax Exemption, Portability, Step-Up Of Basis

Moving to a Care Community? Check the Fine Print

Reading the fine print when purchasing a home in a retirement community or a care community is intimidating. The typeface is tiny, you’ve got boxes to pack and movers to schedule and, well, you know the rest. What most people do, is hope for the best and sign. However, that can lead to trouble, advises Delco Times in the article “Planning Ahead: Moving to a care community? Read the agreement.”

If you don’t want to read the fine print or can’t make head or tails of what you are reading, one option is to ask your estate planning attorney to do so. Without someone reading through and understanding the contract, you and your family may be in for some unpleasant surprises. Here are some things to consider.

What kind of a community are you moving into? If you are moving to a Continuing Care or Life Care Community, your documents will probably have provisions regarding health insurance, entry fees, deposits, a schedule of costs, if you need additional services, fees for moving to a higher level of care and provisions for refunds and estate planning.

When you enter an Assisted Living facility, which is referred to as “Personal Care” in Pennsylvania, you may find yourself signing documents regarding everything from laundry policies, pharmacy choices, financial disclosures and statements of your rights as a resident. Not every document you sign will be critical, but you should understand everything you sign.

If moving into a nursing home that accepts Medicaid, you and your family need to know that nursing homes that accept Medicaid are not permitted to demand payment on admission from either an adult child or a power of attorney from their own funds. However, Pennsylvania does have support provisions regarding children, that are called “filial responsibility.” This should not be a problem, as long as you speak with an elder law attorney who can make sure you have completed the Medicaid application correctly and are in full compliance with all of the requirements.

If your adult children ask you to sign documents and “don’t worry” about what documents are, you may want to sit down with an attorney to review the documents. When someone is not trained to review these documents, they won’t know what red flags to look for.

If someone signs the document who is not the applicant/future resident, that person may become responsible for the costs, depending upon what role you have when you sign: are you a guarantor or indemnitor? That person typically agrees to pay after the applicant/resident’s funds are exhausted. The payments may have to come from their own funds. Sometimes the “responsible party” is simply the person who handles business matters on the applicant’s behalf. You’ll want to be sure that the person signing the papers understands what they are agreeing to.

Almost all agreements will say that the applicant, or the person receiving services, is responsible for payment from their own assets. However, if someone signing the documents is power of attorney, they need to be mindful of what they are signing up for.

If possible, the person who will receive services should be the one who signs any paperwork, but only after a thorough review from an experienced attorney.

Reference: Delco Times (Feb. 5, 20-19) “Planning Ahead: Moving to a care community? Read the agreement”

Suggested Key Terms: Continuing Care, Nursing Care Facility, Medicaid, Filial Responsibility, Power of Attorney

Timing Is Everything Where Medicare’s Concerned

There are many complex rules about transitioning from employment-based health care coverage to Medicare, and mistakes are expensive and often, permanent. That’s the message from a recent article in The New York Times titled “If You Do Medicare Sign-Up Wrong, It Will Cost You.”

Tony Farrell did all the right things — he did the research and made what seemed like good decisions. However, he still got tripped up, and now pays a penalty in higher costs that cannot be undone. When he turned 65 four years ago, he was still working and covered by his employer’s group insurance plan. He decided to stay with his employer’s plan and did not enroll in Medicare. Four months later, he was laid off and switched his health insurance to Cobra. That’s the “Consolidated Omnibus Budget Reconciliation Act” that allows employees to pay for their own coverage up to 36 months after leaving a job.

Medicare requires you to sign up during a limited window before and after your 65th birthday. If you don’t, there are stiff late-enrollment penalties that continue for as long as you live and potentially long waits for coverage to start. There’s one exception. If you are still employed at age 65, you may remain under your employer’s insurance coverage.

What Mr. Farrell didn’t know, and most people don’t, is that Cobra coverage does not qualify you for that exemption. He didn’t realize this mistake for over a year, when his Cobra coverage ended, and he started doing his homework about Medicare. He will have to pay a late-enrollment penalty equal to 20% of the Part B base premium for the rest of his life. His monthly standard premium increases for Mr. Farrell from $135.50 to $162.60.

There are several pitfalls like this and very few early warnings. Moving from Affordable Care Act coverage to Medicare is also complex. There are also issues if you have a Health Savings Account, in conjunction with high-deductible employer insurance.

Here are some of the most common situations:

Still employed at 65? You and your spouse may delay enrollment in Medicare. However, remember, Cobra does not count. You still need to sign up for Medicare.

If you have a Health Savings Account (HSA), note that HSAs can accept contributions only from people enrolled in high deductible plans, and Medicare does not meet that definition. You have to stop making any contributions to the HSA, although you can continue to make withdrawals. Watch the timing here: Medicare Part A coverage is retroactive for six months for enrollees, who qualify during those months. For them, HSA contributions must stop six months before their Medicare effective date, in order to avoid tax penalties.

There are many other nuances that become problematic in switching from employer insurance to Medicare. If this sounds complicated, at least you are not alone. Moving to Medicare from other types of insurance is seen as complicated, even by the experts. The only government warning about any of this comes in the form of a very brief notice at the very end of the annual Social Security Administration statement of benefits.

There are advocacy groups working on legislation that would require the federal government to notify people approaching eligibility about enrollment rules and how Medicare works with other types of insurance. The legislation was introduced in Congress last year – the Beneficiary Enrollment Notification and Eligibility Simplification Act — and will be reintroduced this year.

Reference: The New York Times (Feb. 3, 2019) “If You Do Medicare Sign-Up Wrong, It Will Cost You”

Suggested Key Terms: Medicare, Employer Health Insurance, Health Savings Accounts, Retirement, Cobra

What’s the Latest with Aretha Franklin’s Estate?

Aretha Franklin, known as “The Queen of Soul,” died of pancreatic cancer in August of 2018 in her Detroit riverfront apartment at age 76.

Franklin did not have a will or trust. Therefore, processing the estate, which could be worth tens of millions of dollars, has been slow.

The Detroit Free Press reported in a recent article, “Aretha Franklin’s ex-husband wants a cut of her music royalties,” that recently filed pleadings in Oakland County Probate Court detail some of the fighting.

“There is a dispute between the estate and Ms. Franklin’s ex-husband, the father to one of the heirs, regarding music royalties,” David Bennett, a lawyer for the estate, wrote in a pleading.

Aretha Franklin was twice divorced, and the record doesn’t name the man, beyond saying that he’s the father of one of her four sons. It looks like it’s her first husband, Ted White, who served for a time as Franklin’s manager. Franklin and White have a son, Ted White Jr. Her second marriage to actor Glynn Turman didn’t occur until 1978—eight years after her youngest son was born.

The recent court pleading was filed in response to a request from Edward Franklin, Aretha’s son, for more financial disclosure from the estate, as it’s being processed. Prior to Christmas, a lawyer for Edward Franklin requested that Probate Judge Jennifer Callaghan order the disclosure of monthly financial statements and other records.

Edward wants “copies of all invoices and supporting documents regarding payments to friends and relatives of the personal representative, if any, for services performed for the estate.”

The lawyer for the estate, Bennett, asked Judge Callaghan to deny the request for monthly financial updates, because it “would be an exceptional expense to the estate, is time-consuming and would interfere with the administration of the estate.”

The IRS filed a claim in December of last year alleging the Franklin estate owed about $6.3 million in back taxes and penalties. An attorney for the estate told the Associated Press that at least $3 million in back taxes had been paid back to the IRS, since Franklin’s death.

Reference: Detroit Free Press (January 11, 2019) “Aretha Franklin’s ex-husband wants a cut of her music royalties”

Suggested Key Terms: Estate Planning, Asset Protection, Probate Court, Inheritance, Probate Attorney, Intestacy, Will, Trust

What Doesn’t Medicare Cover?

Medicare Part A and Part B are also known as Original Medicare or Traditional Medicare. These two parts cover a large portion of your medical expenses, after you turn age 65. Part A is hospital insurance that helps pay for inpatient hospital stays, stays in skilled nursing facilities, surgery, hospice care and even some home health care.

Part B is your medical insurance that helps pay for doctors’ visits, outpatient care, some preventive services and some medical equipment and supplies. Most seniors can enroll in Medicare three months before the month they turn 65.

Kiplinger’s article, “7 Things Medicare Doesn’t Cover,” takes a closer look at what isn’t covered by Medicare, plus information about supplemental insurance policies and strategies that can help cover the additional costs, so you don’t wind up with unanticipated medical bills in retirement.

Prescription Drugs. Medicare doesn’t provide coverage for outpatient prescription drugs. However, you can purchase a separate Part D prescription-drug policy for that or a Medicare Advantage plan that covers both medical and drug costs. You can sign up for Part D or Medicare Advantage coverage, when you enroll in Medicare or when you lose other drug coverage. You can switch policies during open enrollment each fall.

Long-Term Care. Medicare provides coverage for some skilled nursing services but not for custodial care. That includes things like help with bathing, dressing and other activities of daily living. However, you can purchase LTC insurance or a combination long-term-care and life insurance policy to cover these costs.

Deductibles and Co-Pays. Part A covers hospital stays and Part B covers doctors’ services and outpatient care. Nonetheless, you have to pay out-of-pocket for deductibles and co-payments. Note that over your lifetime, Medicare will only help pay for a total of 60 days beyond the 90-day limit (“lifetime reserve days”). After that, you’ll pay the full hospital cost. Part B typically covers 80% of doctors’ services, lab tests and x-rays. However, you must pay 20% of the costs, after a $183 deductible (in 2018). A Medigap (Medicare supplement) policy or Medicare Advantage plan can fill in the gaps, if you don’t have the supplemental coverage from a retiree health insurance policy. If you purchase a Medigap policy within six months of signing up for Medicare Part B, insurers can’t reject you or charge more because of preexisting conditions. Medicare Advantage plans have medical and drug coverage through a private insurer. They also may also provide additional coverage, like vision and dental care. You can switch Medicare Advantage plans annually in open enrollment.

Most Dental Care. Medicare will not provide coverage for routine dental visits, teeth cleanings, fillings, dentures or most tooth extractions. There are Medicare Advantage plans that cover basic cleanings and x-rays, but they usually have an annual coverage cap of about $1,500. You could also get coverage from a separate dental insurance policy or a dental discount plan.

Routine Vision Care.  Medicare doesn’t cover routine eye exams or glasses (exceptions include an annual eye exam, if you have diabetes or eyeglasses after certain kinds of cataract surgery). However, some Medicare Advantage plans give you vision coverage, or you may be able to purchase a separate supplemental policy that provides vision care alone or includes both dental and vision care. If you saved money in a health savings account before you enroll in Medicare, you can use the money tax-free at any point for glasses, contact lenses, prescription sunglasses, and other vision care out-of-pocket expenses.

Hearing Aids. Medicare doesn’t cover routine hearing exams or hearing aids, but some Medicare Advantage plans cover hearing aids and fitting exams, and some discount programs provide lower-cost hearing aids.

Medical Care Overseas. Medicare usually doesn’t cover care you receive while traveling outside of the U.S., except for very limited situations (like on a cruise ship within six hours of a U.S. port). However, Medigap plans C through G, M, and N cover 80% of the cost of emergency care abroad with a lifetime limit of $50,000. There are some Medicare Advantage plans that cover emergency care abroad. Another option is to purchase a travel insurance policy that covers some medical expenses, while you’re outside of the U.S.

Reference: Kiplinger (May 23, 2019) “7 Things Medicare Doesn’t Cover”

Suggested Key Terms: Medicare, Retirement Planning, Long-Term-Care, Life Insurance, Medigap, Health Savings Account (HSA)

Does a “Gray Marriage” Affect My Social Security?

Widowed or divorced Social Security beneficiaries can run into issues, if they decide to remarry later in life. Those who remarry in their 50s or 60s should know about the ways your new marital status can impact your Social Security benefits.

Investopedia’s recent article, “How Remarrying Late in Life Impacts SS Benefits,” gives us some things to consider.

First, if either you or your intended is widowed and receiving Social Security benefits based on the deceased spouse’s work record, age is important. A surviving spouse who remarries prior to age 60, becomes ineligible to receive benefits on their late spouse’s record. However, after your first anniversary with your new spouse, you become eligible for spousal benefits, based on that person’s work record.

Decide whether to wait for marriage in order to keep a widow’s benefit for longer, or if the spousal benefit from their new union will offer more financial security. If you’re married at least nine months prior to one spouse’s death, the surviving spouse is eligible for spousal benefits based on the second marriage.

If one or both members of the new couple is divorced, things are trickier because the Social Security Administration does allow a divorced spouse to collect spousal benefits based upon the work records of their deceased ex-spouse, as long as the divorced beneficiary meets the following criteria:

  • The original marriage lasted at least 10 years;
  • The beneficiary applying for divorced spousal benefits has remained unmarried; and
  • The beneficiary applying for divorced spousal benefits is at least 62.

If you are divorced from an ex who significantly out-earned you and your new fiancé, remarrying stops the ex-spousal benefits you’d otherwise receive. This can make a big difference in your finances, and cohabitating without getting hitched, may make more financial sense for some couples.

Beneficiaries who are receiving Social Security Disability Insurance (SSDI) may have the toughest calculations, as far as a second marriages are concerned. This is because SSDI beneficiaries are subject to a family maximum benefit (FMB) calculation. The FMB limits the amount of money available for auxiliary benefits, like the dependent child benefit. Figure out and compare these three amounts to determine FMB:

  1. 85% of the worker’s average indexed monthly earnings (AIME).
  2. The worker’s primary insurance amount (PIA), based on full retirement age.
  3. 150% of the worker’s PIA.

If number three is the highest of these three calculations, then the FMB is the higher of number one or two. However, if number one is the highest of the three calculations, then the FMB is number three.

It’s important that later-in-life couples don’t forget that there can be some unanticipated consequences to their new unions. Know the potential effects that marriage can have on your Social Security benefits, before you walk down the aisle. While you’re at it, make sure to meet with your estate planning attorney to update your wills and your estate plan, especially if one or both of you have children from a prior marriage.

Reference: Investopedia (August 1, 2018) “How Remarrying Late in Life Impacts SS Benefits”

Suggested Key Terms: Estate Planning, Tax Planning, Financial Planning, Retirement Planning, Social Security, Social Security Disability Insurance (SSDI)

Social Security Theft Is on the Rise: Be Prepared and Protected

The advice in the blog post is still applicable today: everyone should go to the Social Security website and create an account. It’s a gateway to many online services from the Social Security Administration, and if you don’t set up your account, there is a greater chance that someone can set one up using your name. By creating your account, says Next Avenue in the article Protect Yourself Against Social Security Identity Theft,” you can try to preempt this form of Social Security theft.

One woman took this advice, since anyone who is older than 18 and has a Social Security number, and email and a mailing address, is allowed to open an account, even if they are decades away from claiming any benefits. However, within nine months of doing so, she received an email from the Social Security Administration saying they were deactivating her account. What happened?

She hadn’t done anything. No one else, as far as she knew, had access to the account. Therefore, she called the Social Security Administration and requested a direct deposit block on her account. This did two things: it prevented changes to direct deposit information through a financial institution or through the Social Security website. It also stops anyone who might be trying to change a mailing address.

Some further research resulted in information about what might have happened. The U.S. Public Interest Research Group website reports that with a name, birth date and Social Security number, a thief can try to open an account in your name and then change your direct deposit information to their checking account. It’s not that hard to gather that information online.

A 2018 report from the Javelin Strategy and Research firm found that nearly 30% of Americans were notified of a breach of their accounts in 2017. That’s up from 12% in 2016 and cost $16.8 billion dollars.

Scammers have shifted tactics. One consumer helpline reports that there have been fewer complaints about people impersonating IRS agents demanding money and an increase of complaints about people impersonating Social Security Administration representatives.

How can you protect yourself?

If you haven’t already done so, sign up for a “my Social Security” account. Check it on a regular basis to monitor your address information or date of birth. If you see any information that has changed or is wrong, contact the Social Security Administration immediately.

If there’s any fraud or identity theft, you may also want to contact fraud hotlines at the Social Security Administration, Office of the Inspector General, the Federal Trade Commission and the Senate Select Committee on Aging.

If you have a problem logging into your account because the password has changed, call the Social Security and ask for “helpdesk,” when the system asks why you are calling.

Reference: Next Avenue (Jan. 17, 2019) Protect Yourself Against Social Security Identity Theft”

Suggested Key Terms: Social Security Administration, Identity Theft, Scams

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