4 Elder Law Myths Busted

Wooden Blocks with the text: Myths
  1. Individuals with dementia cannot do Estate Planning
    FALSE. A person who is suffering from various forms of dementia such as Alzheimer’s, Parkinson’s or any other neurological disease may still have the requisite legal capacity to execute a Last Will and Testament, Power of Attorney and Living Will (also known as an Advanced Medical Directive). The standard for executing such documents is based on an individual’s legal capacity (and it is not based on a medical standard). An experienced Elder Law attorney will know how to determine if a client has the requisite capacity to execute such documents. Oftentimes, those suffering from these diseases are the ones who are in most need of Estate Planning, especially if there are no documents currently in place or prior documents are insufficient. This is because the need for trusted caregivers to access financial and health information is paramount to providing the necessary care for an individual who is dealing with the above-listed issues.
  2. All Banks Know How to Use Your Power of Attorney
    FALSE. Sadly, too many banks nowadays are concerned about liability connected to financial abuse. The end result is that some banks unnecessarily reject legitimate Power of Attorney documents as matter of internal policy. When this happens, cite to the banking provision in your Power of Attorney. This extra step combined with the fact that you will provide them with a “Certified Copy” of the original usually clears up any issues. If the issue persists, it is time to contact the attorney who drafted the documents to help bring additional clarity to the situation.
  3. Transferring my Assets to my children will help me qualify for Medicaid.
    FALSE. This strategy is among the most-asked questions I deal with when discussing Medicaid matters. While there are certain legitimate Medicaid approved ways to transfer assets to a child prior to applying for Medicaid, the above-mentioned strategy may cause catastrophic problems when done incorrectly. The timing of the transfer as well as other factors such as whether the recipient suffers from a disability may also impact an applicant’s success.
  4. I earn too much income to qualify for Medicaid
    FALSE. While prior to December 2014, it was true that individuals seeking Medicaid approval for assisted living or home care arrangements were subject to an income limit, this is no longer the case. Since then, individuals seeking Medicaid to cover the cost of assisted living, home arrangements or in a nursing home must use a qualified Income Trust (QIT) on a monthly basis, whether or not it is above the current monthly income cap of $2,199 (for 2016). Other rules for QIT management apply but the upside is that monthly income may no longer be a bar to Medicaid approval.

This article is not intended as legal advice. Be sure to consult with an attorney when contemplating any of the above-described matters.

About the author. Daniel Del Collo, III is an Estate Planning and Elder Law attorney with an office located in Mount Laurel, New Jersey. He is also a member of the National Academy of Elder Law Attorneys. To discuss this article or any others, you can contact Dan at (856) 533-2405.

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