Ask the Expert: Divorcing a Loving Husband to Afford Long-Term Care
Published: Thu, 12/05/13
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Ask the Expert: Your Elder Law Questions Answered by Evan H. Farr, CELA |
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Ask the Expert: Divorcing a Loving Husband to Afford Long-Term Care
Q. I have a question about Medicaid eligibility and need elder law and/or divorce advice in order to protect our modest assets. My husband and I reside in Virginia. I am in my late 60s and work full time. My husband is 80 and has Parkinson's disease and early signs of dementia. His only income is Social Security and a military pension. While our income is OK, it is not enough to support myself AND my husband should he need to go into a nursing facility, which is getting to be more and more likely. I understand that in Virginia, my 401k retirement account (which is sizeable) is counted in determining Medicaid eligibility. I'm worried that my only option is to divorce my husband so we can qualify for Medicaid assistance and I can sustain the modest level of living we have. Are there any other options? He could not get long term care insurance due to his Parkinson's. Based on a question asked on Avvo by a resident of Manassas, VA -------
A. You do NOT need to divorce your husband, and divorcing him might not even accomplish your goal.
For many people, the idea of divorcing a spouse of many years is unconscionable. As a loving spouse, you may feel as if you are deserting a sick husband, and you will have to deal with the stress and public nature of the divorce proceedings. In addition, in a divorce, there is also always the possibility that the judge will not order a division of property in accordance with your desires or even in accordance with a written agreement. A divorce may be worthwhile only if a judge grants all of the assets to you, the healthy spouse. Yet a judge may be unwilling to do so if he feels that your husband, who is sick and has high medical costs, deserves more. The judge may also view your agreement as an act intended for Medicaid eligibility only and may be unwilling to use court authority to help you engage in Medicaid Asset Protection. There is also the issue of incompetence. Getting a divorce is much more complex when a guardian has to be appointed by the court for the spouse who is no longer competent. Legally, it would be the guardian's duty to act in the best interest of his client only and he or she might not be as worried about the best interests of the healthy spouse. If this is the case, it could be difficult for the couple to obtain their desired financial outcome. Divorce can also have unwanted practical consequences for pensions, Social Security benefits, taxes, insurance, estate law, medical decision-making, even hospital and nursing home visitation rights, among other things.
Luckily, there are dozens of legal and ethical strategies that experienced Elder Law attorneys such as myself can help you employ to protect 100% of your total marital assets and 100% of your income, as the healthy spouse, and get your husband on Medicaid if and when he needs nursing home care. Through the process of Life Care Planning and Medicaid Asset Protection (which our firm calls "Level 4 Planning"), we can help you protect ALL of your assets and quickly obtain Medicaid to pay for your husband's nursing home care. We might even be able to get some of your husband's monthly income allocated to you. Level 4 Planning is focused not on preparation of specific documents, but rather on protecting your assets and obtaining Medicaid to help pay for your husband's care. You mention that your husband has a military pension . . . assuming he served at least one day active duty during wartime, we might also be able to get your husband a benefit called Veteran's Aid and Attendance, which is a special type of Pension available for wartime veterans who served on active duty for at least 90 days.
The assets that we protect can be used to maintain your quality of life and also, if it would benefit your husband, to enhance his quality of life in the nursing home by allowing you to purchase goods and services not covered by Medicaid: goods such as dentures, hearing aids, vision aids, and personal items; services such as enhanced medical care or private sitters to provide him with an enhanced level of care.
Virginia also has a Medicaid home care benefit which could help you care for your husband at home if the need arises. The Program for All Inclusive Care for the Elderly (PACE) is designed to allow Medicaid eligible individuals aged 55 or older, who meet the nursing facility level of care, to access comprehensive coordinated care in their homes and communities. To be eligible, Participants must be age 55 or older, be certified for nursing facility care, be residing in the approved service area, and be able to live safely in the community. Learn more about the PACE program.
The bottom line is that we can protect ALL of your family's assets without forcing you to get a divorce. The Fairfax and Fredericksburg Elder Law Firm of Evan H. Farr, P.C. helps couples in similar situations obtain Medicaid assistance and Veterans Aid and Attendance benefits without having to divorce or deplete their life savings. With proper planning, you can retain all of the assets and most or all of the income while Medicaid takes care of the nursing home. In addition, we aim to ensure that you, the spouse who is remaining at home, is able to maintain your dignity and standard of living. Read more about the services we offer to help couples in similar situations, then call us today at 703-691-1888 for a free consultation.
 Siamese Cats Explain if Estate Planning Services Are Tax-Deductible  Dear Saki and Alley,
As the end of the year draws near, I am paying close attention to tax deductions. I met with the Farr Law Firm this year to do my estate planning. Are my legal expenses tax deductible? Thanks! Payton A. Taxes ---- Dear Payton, In both Merians v. Comm'r, 60 TC 187 (1973) (involving estate planning using an irrevocable trust) and Wong v. Comm'r, TC Memo. 1989-683 (1989) (involving estate planning using a revocable trust), the Tax Court ruled that twenty percent (20%) of a non-itemized estate planning bill was deductible as tax advice under Section 212(3). Attorney's fees are deductible only to the extent they exceed 2% of the taxpayer's adjusted gross income and they are subject to a phase out when the adjusted gross income exceeds a certain amount. They cannot be taken into account in computing the alternate minimum tax. In order to take advantage of the 2% rule, you should pay all deductible legal fees in one year. Attorney's fees are deductible to the extent they are incurred*: Expenses, to be deductible under section 212, must be "ordinary and necessary." Such expenses must be reasonable in amount and must bear a reasonable and proximate relation to the production or collection of taxable income or to the management, conservation, or maintenance of property held for the production of income.* When deductible, attorney's fees are treated as "miscellaneous itemized deductions." Here at The Fairfax and Fredericksburg Law Firm of Evan H. Farr, P.C., we suggest that 20% of the total fees that you paid to our firm can appropriately be considered deductible tax advice. If you haven't yet had the chance to meet with an Estate Planning Attorney, call us at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to make an appointment for a no-cost consultation. Purrs, Saki and Alley About Saki and Alley: Saki and Alley are nine year old Siamese cats that belong to Jeannie and Evan Farr and live here at the Farr Law Firm. They are very sweet and smart and love all the attention they get from staff and friendly clients at the firm. We encourage you to visit us and meet these extraordinary Siamese cats! Sources: * IRC § 212, Regs §1.212-1 ** (IRC § 212(3); Carpenter v. United States, 338 F.2d 366 (Ct.Cl.1964); Rev. Rul. 72-545, 1972-2 CB 179). |
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