Articles & Insights



Key Elder Law Numbers for 2017: Our Annual Roundup
Below are figures for 2017 that are frequently used in the elder law practice or are of interest to clients.


Medicaid Spousal Impoverishment Figures for 2017
The new minimum community spouse resource allowance (CSRA) is $24,180 and the maximum CSRA is $120,900.
The maximum monthly maintenance needs allowance is $3,022.50.
The minimum monthly maintenance needs allowance remains $2,002.50. 

Medicaid Home Equity Limits
Minimum: $560,000
Maximum: $840,000

Income Cap
The income cap for 2017 applicable in "income cap" states is $2,205 a month.

Gift and estate tax figures
Federal estate tax exemption: $5.49 million for individuals
Lifetime tax exclusion for gifts: $5.49 million
Generation-skipping transfer tax exemption: $5.49 million
The annual gift tax exclusion remains at $14,000. 

Long-Term Care Premium Deductibility Limits for 2017
The Internal Revenue Service has announced the 2017 limitations on the deductibility of long-term care insurance premiums from income. Any premium amounts above these limits are not considered to be a medical expense.
Attained age before the close of the taxable year Maximum deduction:
40 or less - $410
More than 40 but not more than 50 - $770
More than 50 but not more than 60 - $1,530
More than 60 but not more than 70 - $4,090
More than 70 - $5,110

Medicare Premiums, Deductibles and Copayments for 2017
Part B premium: $109/month (was $104.90) 
Part B premium for beneficiaries not "held harmless": $134/month (was $121.80)
Part B deductible: $183 (was $166)
Part A deductible: $1,316 (was $1,288)
Co-payment for hospital stay days 61-90: $329/day (was $322)
Co-payment for hospital stay days 91 and beyond: $658/day (was $644)
Skilled nursing facility co-payment, days 21-100: $164.50/day (was $161)

Part B premiums for higher-income beneficiaries:
Individuals with annual incomes between $85,000 and $107,000 and married couples with annual incomes between $170,000 and $214,000 will pay a monthly premium of $187.50 (was $170.50).
Individuals with annual incomes between $107,000 and $160,000 and married couples with annual incomes between $214,000 and $320,000 will pay a monthly premium of $267.90 (was $243.60).
Individuals with annual incomes between $160,000 and $214,000 and married couples with annual incomes between $320,000 and $428,000 will pay a monthly premium of $348.30 (was $316.70).
Individuals with annual incomes of $214,000 or more and married couples with annual incomes of $428,000 or more will pay a monthly premium of $428.60 (was $389.80).

High-earner premiums differ for beneficiaries who are married but file a separate tax return from their spouse:
Those with incomes between $85,000 and $129,000 will pay a monthly premium of $348.30 (was $316.70).
Those with incomes greater than $129,000 will pay a monthly premium of $428.60 (was $389.80).

Social Security Benefits for 2017
The new monthly federal Supplemental Security Income (SSI) payment standard is $735 for an individual and $1,103 for a couple.
Estimated average monthly Social Security retirement payment: $1,360 a month (was $1,341) for individuals and $2,260 (was $2,212) for couples
Maximum amount of earnings subject to Social Security taxation: $127,200 (was $118,500)

For a complete list of the 2017 Social Security figures, go to: https://www.ssa.gov/news/press/factsheets/colafacts2017.pdf

The Grim Reaper Appears Again
 
It happened again, just this week.  I took a phone call at the office from a lady named Joy.  She explained that her mother had recently passed away after a prolonged stay in a nursing home.  Her mom’s savings account of approximately $80,000 had been spent down by making payments to the nursing home.  Once all the money was gone, her mom’s nursing home bill had been subsidized by TennCare.  Following her mom’s death, Joy filed for a TennCare release which was denied.  She learned that TennCare had paid the nursing home more than $132,000 for her mom’s care and now, they wanted to be reimbursed through the process known as “estate recovery”.  In brief, that means TennCare notified her that they would be placing a lien on her mother’s residential real estate.

When I asked Joy what her mother’s property was worth, she estimated $120,000 to $125,000….less than the lien TennCare would be filing.  My heart sank for her because, in effect, TennCare would be taking her mother’s property, leaving her without any inheritance at all.  When I told her what “estate recovery” meant, she replied, “But, mama wanted me to have her house… she left it to me in her Will…what can I do?”

Unfortunately, for Joy, there’s little she can do at this point.  TennCare has a legal right to be reimbursed from her mom’s probate estate.  Thus, the Grim Reaper will take what he is due.

You need to know what Joy and her mom didn’t know.  First, a nursing home resident does not have to “spend down” all of their financial assets to receive TennCare.  Further, a TennCare recipient’s residential real estate can be insulated from estate recovery.  Tennessee law currently provides that TennCare can only pursue estate recovery from the probate estate of a decedent. There are two or three legal ways to insure that residential real estate is titled so that it falls outside of probate when someone dies.  Each of these strategies requires some forethought, planning, and the counsel of a competent elder law attorney.

Only 32% of Americans ever get around to executing the most basic estate planning document…a Last Will & Testament.  Joy’s mom ran against the herd when she took the time and made the investment in having her Will prepared.  Sadly however, she failed to understand that having a Will didn’t ensure that her daughter would receive a legacy consisting of some cash and a piece of real estate.  Joy’s mom didn’t take the proactive steps required to protect her nest egg of savings from the ravages of costly nursing home care and her real estate from the long arm of estate recovery.

The good news for you is that now you know about Joy's unfortunate situation, you can make sure that what happened to her never happens to your heirs.
  
 
Am I Liable for My Spouse's Nursing Home Bill?
 
Usually in non-community property states, one spouse is not responsible for the other spouse’s debt.
 
However, in some states there is an exception to this rule for medical bills, meaning that a spouse may be liable for any debts relating to the other spouse’s medical treatment. In those states, nursing home care may be considered a medical bill. The rules regarding a spouse's liability for medical bills vary from state to state.
 
One option is for the spouse needing care to apply for Medicaid to cover his nursing home expenses.  An elder law attorney can assist with determing the right course of action to make sure you won't end up with a bill you can't pay,or better yet, having Medicaid pay the bill for you.
 
Can I Refuse to Serve as Executor?
 
Just because you are named as executor in a will does not mean you are required to serve as an executor.
 
If your mother-in-law is still alive, you can inform her you no longer want the position, and she will need to amend her will to name a different executor. If she has already passed away, you can inform the successor executor, if there is one, or the court that you do not want to serve in this capacity. If the will is already being probated, you will need to formally resign in writing in the probate court and provide a written accounting of what you have done. If the will does not name a successor executor, the probate court will choose an executor after you resign.
 
State law dictates who has priority to serve. The surviving spouse usually has first priority, followed by children. If there is no spouse or children, then other family members may be chosen. If more than one person has priority and the heirs can't agree on who should serve, then the court will choose. 
 
Medicare Now Covers Conversations About End-of-Life Care
 
Medicare beneficiaries may now discuss options for care at the end of life with their health care providers. Beneficiaries of course were already free to talk about advance care planning with their doctors or other qualified health professionals, but the practitioners could be reimbursed for such discussions only during a patient’s “Welcome to Medicare” visit, a time when the topic may not seem very relevant.
 
As of January 1, 2016, Medicare will pay physicians for speaking at any time with Medicare beneficiaries and their families about different options for care and treatment at the end of life. 
 
These purely voluntary conversations will help enable patients to end their lives on their own terms. Patients are often unable to express themselves when a crisis is at hand and a decision needs to be made about how much or little care they want when facing a terminal illness. According to the Kaiser Family Foundation, one-quarter of Medicare’s budget is spent on patients in their last year of life.  For many patients, life-prolonging medical procedurs are unwanted and unwelcome.  A 2011 study found that when medical personnel know what kind of care a patient wants at the end of life, Medicare can be spared significant sums and the patient is more likely to die at home rather than in a hospital in some areas.
 
Now that discussions about advance care planning are a regular Medicare benefit, seniors and other Medicare beneficiaries will be able to learn about health care options that are available for end-of-life care, such as advance directives, palliative care and hospice care.  They can then determine which types of care they would like to have, and share their wishes with their practititioners and family.  After sufficient conversations with their doctors and
other health professionals, the beneficiaries may be ready to execute legal documents, such as advance directives or “POLST” forms, and name a health care proxy to ensure that their wishes will be carried out. Studies have found that 40 percent of people over age 65 have not written down their wishes for end-of-life treatment. 

An early version of the Affordable Care Act (aka “Obamacare”) would have allowed Medicare to pay for these patient discussions, but former vice presidential candidate Sarah Palin and other opponents of health reform characterized them as government “death panels,” and the provision never made it into the final health care legislation. The Obama administration tried again in 2011, enacting a Medicare regulation that would have reimbursed doctors for discussing end-of-life planning with patients during their annual checkups, but quickly reversed course and withdrew the regulation, apparently fearing that it would revive the specter of  "death panels" at a time when the health reform law was under fierce attack from Republicans. 

Under the new regulations, the advance care planning discussions can take place during the annual wellness visit or at a separate appointment.  They are a reimbursable benefit under Medicare Part B and there will be a copayment if the conversation is not part of the annual wellness visit.
 
Talk to your elder law attorney about drawing up the documents to help ensure you receive the end-of-life medical treatment you want -- no more and no less.