As April 15th lurks right around the corner, it evokes certain unpleasant feelings in many of us. Most people do not relish the notion of gathering all their paperwork, including 1099s, charitable donations, medical expenses, etc. to submit to their accountant in a comprehensive and legible format. Furthermore, while many might anticipate a refund, there are others who dread seeing the amount that is owed. Tax season begins in January when accountants start burning the midnight oil to submit their clients’ returns in a timely fashion. People are given ample time, and email blasts are sent with gentle reminders. Nonetheless, it is inevitable that some will wait until the last minute or file for an extension.

This type of stalling does not just occur in the world of income tax returns. People often procrastinate with respect to their own estate and elder law planning, often to their own detriment. The reasons may be like why we dread tax time. To execute a complete and effective plan, it is important to collect documentation. An estate planning attorney needs to know the amount and nature of assets held by the client to plan properly. Furthermore, people may be anxious about the costs associated with estate planning and therefore put it off.

While normal procrastination is understandable, it is unwise and sometimes extremely detrimental. Recently, a client came to consult with us regarding her mother who had just been moved to a nursing home from the hospital. The client, who lived with her mother, informed us that she was an only child and the only asset owned by her mother was a house in Brooklyn, valued at $600,000. After further inquiry, we gleaned that the mother had lost a daughter several years earlier. The daughter left a surviving son who was totally estranged from the entire family. The mother had not done any planning prior to entering the nursing home. Her nursing home admission was necessary as she was suffering from advanced Alzheimer’s disease and could no longer care for herself.

The above-described scenario sounds straightforward enough. The mother’s only asset was a home. Due to the home’s value, both federal and state estate taxes were of no concern. However, upon closer scrutiny, we can see how damaging and costly it can be to not have any estate plan in effect. Firstly, nursing home care is very costly. When someone has no liquid assets and no long-term care insurance, Medicaid is the only option in terms of coverage. Unfortunately, a home loses its exempt status when its occupant requires nursing home care. The mother’s ownership of the home would prevent her from being eligible for Medicaid. One way around this is by maintaining that the patient intends to return to her home. If the “intent to return home” is invoked, the Medicaid applicant can receive coverage provided she is otherwise eligible. After a certain period, if the applicant does not go home, Medicaid will put a lien on the house and recover whatever it has laid out once the person dies. If the mother does not have a power of attorney appointing her daughter to sign the necessary papers, this intent to return home might not be available. This would mean that the mother would not be eligible for Medicaid and would have no way to pay for her care.

Furthermore, the fact that the client had lived with her mother offered a perfect way to protect the entire home. Usually, Medicaid imposes a five year look back for any applicant’s uncompensated transfer (gift) of assets to another. A penalty will be imposed based on the amount gifted. However, there are certain exceptions to this rule and one such exception is the transfer of a home to a child who has resided with the applicant for at least two years. This is referred to as the caretaker child exemption. With respect to our example, the mother’s entire home could be protected because the client resided with her. Nonetheless, without a comprehensive power of attorney containing gifting powers, this transfer cannot be effected. If the mother is too incapacitated to sign, the only solution would be for the client to initiate a guardianship proceeding. This is a lengthy and costly process which could have easily been avoided with earlier planning.

There is one more glaring problem. Aside from the Medicaid issue, if the client’s mother dies without a will or trust, the administration of her estate will be messy and costly. When an individual dies (the “decedent’) without a will, state law dictates how the assets in the decedent’s name should be distributed. The client’s mother’s house would be distributed as follows:  fifty percent to the client and fifty percent to the estranged grandson. This result would not be what the mother would have wanted. Further, as the client was living in the house, the fifty percent distribution to her nephew might force her to sell the home and completely upend her life.

If our client’s mother had effected some advanced planning, she would have signed a comprehensive power of attorney authorizing her daughter to do any planning necessary to protect her assets. Furthermore, we would have advised the mother to transfer her home to a trust during her lifetime. Depending on the nature of the trust (revocable or irrevocable), the mother would have been able to protect the house in case she required Medicaid in the future. The transfer of the house to the trust would have also allowed her to leave her house in its entirety to her daughter and would have eliminated the need for any court intervention.

This brief case study is a perfect example of what can happen when one puts off necessary planning. Once those tax returns are filed, it would be a good idea to consult with an attorney who specializes in estate and elder law planning.

 Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Debby Rosenfeld, Esq. is a senior staff attorney at the firm. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also a partner with Brightside Advisors, a wealth management firm with offices in New York and Los Angeles.

 By Ronald A. Fatoullah, Esq.
and Debby Rosenfeld, Esq. 

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