The Law in Your Life

Protecting Family Treasures and Nursing Homes

“LAW IN YOUR LIFE”
“Protecting Family Treasures & Nursing Homes”

Rusty Fracassa, Attorney,
McCormick & Fracassa
Elder Law and Special Needs Attorneys
Liberty, Missouri                             

Question 1----What happens to a person’s property and savings if he or she has to be cared for in a nursing home?

Question 2 ----Then someone in the family or a caretaker would be in charge of the person’s property or savings to make sure those bills are paid?

Question 3 ----Nursing homes are expensive.  How can a lawyer help a person to legally and ethically not lose everything they’ve worked for to pay for the last years of their life in a nursing home?

Question 4----Sometimes a loved one goes to a nursing home but it’s not for old age.  It may be for a degenerative disease or even a car accident that would send a young person to a nursing home.  Are there any ways to plan for these life-changing events?

Question 5----Hopefully, growing old is inevitable.  How can we financially plan to protect the family treasures we hold onto now if we go into a nursing home? Not personal belongings but those items that do have significant monetary value?

Question 6 ----Do you, as a special attorney for elder law and special needs, have many meetings with siblings who might have opposing opinions on what to do with family treasures when Mom or Dad goes into a nursing home?

Question 7----Bottom line is…plan ahead, right?

 

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Text Transcript of Audio Interview

Shelley Tucker: Welcome to the Law in Your Life, a Missouri Bar podcast for the public.  I'm Shelley Tucker.  Our guest is Russell Fracassa, an attorney whose practice focuses on elder law and special needs.  He's with the law firm of McCormick and Fracassa of Liberty, Missouri.  Rusty, what happens to a person's property or savings if he or she has to be cared for in a nursing home?

Rusty Fracassa:  One thing that it is going to be used for is what they've been probably saving it for all of their life, at least the current generation, and that is that proverbial rainy day.  It's going to be used for No. 1, their current care in the nursing home, and No. 2, if they've retained their home, it's going to be used to continue to maintain that home even though they may not be living there.

Shelley Tucker: There's someone in the family or there'll be a caretaker who will be in charge of the person's property or savings to make sure those bills are paid?

Rusty Fracassa:  Well, ideally, yes.  The first thing to do is always, whether it's somebody in their 30’s or 40’s or somebody that's going to be older than that, is if they have someone available is to have a durable power of attorney in place.  Then that person feels somewhat of an obligation and they're going to take care of the business. That provides an avenue also for the elderly person.  Now, sometimes that stuff just seems to be able to get done, which is never usually a good option. So, if there's no durable power of attorney in place then really the only other option if somebody cannot  -- due to physical reasons or mental reasons -- take care of their business, then that's when there needs to be a conservatorship through the probate court. If there's nobody available to serve in that capacity then every county has a public administrator that takes over that duty  

Shelley Tucker: That’s understandable.  We know nursing homes are expensive.  How can a lawyer help a person to legally and ethically not lose everything they’ve worked for to pay for the last years of their life while in a nursing home?

Rusty Fracassa:     Well really it's just that lawyers can help to plan because we’ve been through it many, many times before and seen many different scenarios and basically know the different options that are available that the law provides.  The first and foremost of course is always advanced planning --  the durable powers of attorney and long-term care insurance are important.  Long-term care insurance is important because it's not just the nursing home that   provides for but it's also in‑home care or assisted living that it provides for.  The next thing that we can do kind of goes along with just knowing what's available because of dealing with it so much. And that is (exploring) the different avenues available to not necessarily preserve the estate for the children just to increase their inheritance but also to continue to care for the community spouse or to kind of cut off or round off those rough edges of being in the nursing home and only living off of $30.00 a month for incidentals or little things to make life a little easier at the end of the stage.

Shelley Tucker: Sometimes a loved one goes to a nursing home, but it's not for old age. It may be for a degenerative disease or even a car accident that would send a young person to a nursing home.  Are there any ways to plan for these life-changing events?

Rusty Fracassa:     Well really it seems to keep coming back to the durable power of attorney and long-term care insurance. Really what's nice in living in a society that does provide, and  I know there are arguments that it doesn't provide enough, although I think some taxpayers may think that it provides too much,  but there are avenues available,  such as for any wartime veterans there's certain benefits available through the Veterans Administration, and then there's also Medicaid which in Missouri is called MO HealthNet.

Shelley Tucker:  Hopefully growing old is inevitable, but how can we financially plan to protect those family treasures, not personal belongings, not what we see around us day to day, but those family treasures that we hold on to now if we go into a nursing home.  Those items that do have some significant monetary value.

Rusty Fracassa:     The one that I think of immediately that we see a lot is the family farm that has been passed down through many generations.  The first issue is for it not to be depleted during a spouse’s nursing home stay. There are a lot of ways to be able to transfer that over to the community spouse that are available.  Some of those are that if it’s an ongoing business providing income to the family then that is an exempt resource.  The income will be considered but the asset itself won’t be considered. Also you might try qualifying the nursing home resident for Medicaid.  If there are monetary items such as cash or CD’s or stocks or bonds, there is also, as long as you have a community spouse, ways that you can increase the amount that is allowed for the community spouse to keep.  I think that’s very important because typically, not always, but typically it’s the 85-year old grandmother who cannot earn any more money and her Social Security is very low because she’s always cared for the family. Now, her household income has dropped significantly if her husband’s income is going to the nursing home, and with some different limitations half of the assets are going to go away.  So we could do things such as transfer the assets to the community spouse and she can purchase an annuity.  That no longer is an asset but now it is an income stream.  Now it can’t just be any annuity, that comes along with just knowing what the law says and what the local practices are, because there are certain criteria for that.  Another option is, is if there is a disabled child.  The law allows for any assets to be transferred to a disabled child and it doesn’t have to be a child who is receiving Social Security disability.  It can be somebody who is just qualified as disabled, which just as many lawyers have clients determined to be disabled through the Social Security Administration. We can do the same thing through Medicaid.  And that’s another very popular option.

Shelley Tucker: As an attorney for elder law and special needs, do you have a lot of meetings with siblings who might have opposing opinions on what to do with the family treasures or the property when mom or dad might go into the nursing home?

Rusty Fracassa:     If you're preserving assets to be later inherited, people don't seem to argue as much about that.  They always seem to be pretty positive even though the children will always says I just want Mom to spend all the money to go on trips.  At least with the world's greatest generation, which is the age bracket that's we're speaking about today, that's not their desire.  Their desires are to know that money is sitting in the bank and to be able to pass it on to the children.  And so there's not a lot of arguing, it doesn't seem, in that fashion.  And I suppose that's one of the reasons that they come to a counselor --  in order to be able to work out some of those differing ideas in a more objective way.  So that is not as common as what I think we see on TV.

Shelly Tucker:   Bottom line is “plan ahead.”

Rusty Fracassa:     Yes.

Shelly Tucker:   And there are resources out there, The Missouri Bar can help out and also law firms such as yours can help out as well.

Rusty Fracassa: Very much so, yes.

Shelly Tucker:   Our guest has been Rusty Fracassa with the law firm of McCormick and Fracassa, elder law and special needs attorneys in Liberty, Missouri.  The Law in Your Life provides general information about the law for the public for your specific legal needs.  Remember you can only get legal advice from your attorney.  We hope you've enjoyed this segment.  If you have any suggestions for future podcast topics let us know at movar.org.  I'm Shelly Tucker for the Missouri Bar and Law in Your Life

PRENUPTIAL AGREEMENTS

“PRENUPTIAL AGREEMENTS”

Gail Berkowitz…………ON Pre-Nuptial Agreements
Law Firm of “Berkowitz, Cook and Gondring” of Kansas City

Question 1. HOW COMMON ARE PRENUPTIAL AGREEMENTS?

Question 2. WHY IS THAT?

Question 3. SOME PEOPLE WOULD SAY THAT IF YOU HAVE TO DO A PRENUPTIAL AGREEMENT, MAYBE YOU DON’T TRUST THE PERSON YOU ARE GOING TO MARRY. YOUR THOUGHTS ON THAT

Question 4. BY DOING A PRENUPTIAL AGREEMENT ARE YOU ALREADY PRE-PLANNING YOUR DIVORCE?

Question 5. ARE PRENUPTIAL AGREEMENTS ONLY FOR CELEBRITIES AND VERY WEALTHY COUPLES?

Question 6. WHAT SORT OF THINGS SHOULD PEOPLE PUT INTO A PRENUPTIAL AGREEMENT?

Question 7. SO IT’S PROTECTION OR A MATTER OF STRATEGIC PLANNING?

Question 8. WHAT ABOUT CERTAIN THINGS YOU CAN’T PUT INTO A PRENUPTIAL AGREEMENT?

Question 9. ARE PRENUPTIAL AGREEMENTS RECOGNIZED AS CONTRACTS IN MISSOURI, OR IS THERE A STATUTE THAT RECOGNIZES THEM?

Question 10. WHAT DO YOU SAY TO THE ROMANTICS AMONG US, WHO SAY, LOVE WILL TAKE CARE OF EVERYTHING?

Question 11. SO THE BRIDE AND GROOM WOULD SIT DOWN WITH THEIR ATTORNEY PRIOR TO THE WEDDING AND MAP OUT A PRENUPTIAL AGREEMENT…..?

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Text Transcript of Audio Interview

Shelley Tucker: Welcome to law in your life a Missouri podcast for the public. I'm Shelley Tucker. Our guest is Gail Berkowitz of Berkowitz, Cooke and Gondring of the law firm in Kansas City. We're discussing prenuptial agreements. How common are prenuptial agreements?

Gail Berkowitz: More and more common. I would say in terms of first marriages probably less common; a second marriage is certainly far more common.

Shelley Tucker: And why is that?

Gail Berkowitz: Most people in their first marriages are marrying younger, they don't have a lot of assets to be concerned with although families where there has been inheritance or there is a concern for an inheritance in that - the near future, you might find that the parents are supportive of a prenuptial agreement.

Shelley Tucker: Well Gail some people might say that - you know, if you have a prenuptial agreement or you go into a marriage with a prenuptial agreement, maybe you're not trusting the person that you're going to marry. Your response on that

Gail Berkowitz: I wouldn't agree with that at all. In fact, I think often times if a prenuptial agreement is being drafted properly both the spouses are receiving counseling. They're really going to be discussing some financial issues that they might not have considered. Prenuptial agreement don't forget not only deal with what occurs upon a divorce but also what occurs upon a death of either party. 

Shelley Tucker: By doing a prenuptial agreement you're not already preplanning your divorce at all, are you?

Gail Berkowitz: I assume there are some people who do go into it with that in mind but that would really be the minority.

Shelley Tucker: Are prenuptial agreements only for celebrities or as you said very wealthy couples?

Gail Berkowitz: Absolutely not. Particularly people who again have been married previously and they may have children from their prior marriage and they would like to protect that there would some other assets that would be set aside for their children.

Shelley Tucker: What are some things that we should put into a prenuptial agreement?

Gail Berkowitz: I'd like to look at prenups as two very distinct issues. One is what would occur upon death and what would occur upon divorce. A lot of people put into their prenups issues regarding maintenance which is what we used to refer to as alimony but more than that it's really to look at what occurs with assets that either party has brought into a marriage or anticipates inheriting during the marriage and how they would like to preserve those for either their children again from a prior marriage -

Shelley Tucker: - It's a protection and it's - it's really strategic planning, isn't it?

Gail Berkowitz: Absolutely. And we often ask our clients to work with an estate planner.

Shelley Tucker: What about certain things you can't put into a prenuptial agreement?

Gail Berkowitz: Anything that relates to your children would be inappropriate because a court would retain jurisdiction to make any decisions relating to your children. My law partner and I have often questioned when a prenuptial agreement does address the lack of support for a spouse particularly when one spouse has been the only - or tends to be the only breadwinner in the family and that makes me very uncomfortable.

Shelley Tucker: Are prenuptial agreements recognized as contracts in Missouri or in some states? Is there a statute that recognizes prenuptial agreements?

Gail Berkowitz: Kansas has passed a uniform act. Missouri does not have the uniform act but they are considered to be contracts as long as you meet all the qualifications. Those qualifications are that both parties have had an opportunity to be represented, that there has been a full disclosure of all the assets, and that there has been what we call consideration. In other words, those parties are receiving a benefit from the contract. Kansas has adopted the uniform act and so long as you can reflect or show that both parties were adequately represented, and that is a gross generalization, but it is much easier to uphold than in Kansas because of the act than it is in Missouri. There are far more qualifications in Missouri.

Shelley Tucker: What do you say to the romantics among us who say that, you know, love will just take care of everything in a marriage?

Gail Berkowitz: Well luckily nobody asks me that question, they have already made the decision by the time they come to me. Again, I think a prenuptial agreement is approached by both parties as a way to not only plan for the future but also to raise issues for today. I think it is a very good mechanism for that. 

Shelley Tucker: How much would one cost? I mean, just go to your attorney as you are getting ready to get married, the bride and the groom, sit down with their attorney before they get married and set this up, right?

Gail Berkowitz: Preferably far before the wedding. First of all, you don't want somebody who is the day before the wedding having to deal with these issues, but it is shocking how many times it does occur. And that is one of the issues to be reviewed in Missouri to determine if the document was conscionable. But both parties would have their individual attorneys, preferably six to seven months before the marriage would be ideal. Your attorney is going to bill you on an hourly basis. 

Shelley Tucker: Our guest has been Gail Berkowitz with the Kansas City law firm of Berkowitz, Cook & Gondring. The Law in Your Life provides general information about the law for the public for your specific legal needs. Remember, you can only get legal advice from your attorney. We hope you have enjoyed this Pod Cast . If you have any suggestions for future Pod Cast topics, let us know at mobar.org. I am Shelly Tucker for the Missouri Bar and Law in Your Life.