“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?
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
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Posted by: school_dubl | 12/29/2010 at 11:14 AM