Jan Neal Law Firm, LLC

Alabama Estate, Elder and Special Needs Law


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Welcome

Welcome to Jan Neal Law Firm LLC, located at 207 N. 4th Street, Opelika, Alabama 36801 where you can find the latest news concerning Probate, Elder and Special Needs Law in Alabama.  Contact Jan at 334-745-2779 or toll free 1-800-270-7635 or email her at neal@janneallaw.com, jbneal@icloud.com, jbneal@me.com.

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Beware Deceptive Marketing of Medicare Advantage Plans

Medicare Advantage Plans (MA) are a good fit for many people, while they may not be a good idea for others.  I have no problem with Medicare Advantage, but I do have a problem with the deceptive ways these plans are marketed. 

Earlier this year The Center for Medicare and Medicaid Services (CMS) revealed that from 2020 to 2021 the agency received double the complaints from Medicare eligible persons about private sector marketing of MA plans.  These complaints launched a Senate Finance Committee majority staff inquiry in August 2022.  The committee reviewed complaints from 14 states and found that Medicare eligible persons were being “inundated with aggressive marketing tactics as well as false and misleading information, such as:

Seniors shopping at their local grocery store are approached by insurance agents and asked to switch their Medicare coverage or MA plan.

Insurance agents selling new MA plans tell seniors that their doctors are covered by the new plans. Seniors who switch plans find out months later that their doctor is actually out-of-network, and they have to pay out-of-pocket to visit their doctor.

Seniors receive mailers that look like official business from a Federal agency, yet the mailer is a marketing prompt from an MA plan or its agent or broker.


An insurance agent calls seniors 20 times a day, attempting to convince them to switch their Medicare coverage.


Widespread television advertisements with celebrities claim that seniors are missing out on benefits, including higher Social Security payments, in order ot prompt seniors to call MA plan agent or broker hotlines.”

These deceptive Medicare Advantage marketing practices are especially pervasive during open enrollment (October 15 – December 7).  The committee recommends that CMS warn seniors and people living with disabilities of the following:


“Warning 1: USE CAUTION IF CALLING A TV HELPLINE . The Federal Medicare program does not advertise MA plans or benefits on television. These so-called helplines will connect you with an agent or broker. That agent or broker does not have to tell you about all of your options in the Medicare program and does not have to ensure that your plan will meet your needs.


Warning 2: IF YOU THINK YOU HAVE BEEN ENROLLED IN A NEW PLAN THAT DOESN’T WORK FOR YOU, CALL 1-800-MEDICARE FOR HELP. Seniors and people living with disabilities can also get no-cost counseling from the local State Health Insurance Assistance Program (SHIP) or Senior Medicare Patrol (SMP office). In some situations you may be eligible for a special enrollment period to switch back into your original plan During the first three months of the year you can also change your enrollment.


Warning 3: BE CAREFUL WHAT YOU CLICK. Third-Party Marketing Organizations are using sneaky tactics to get your information and then sell your information to agents or brokers who can call you. When in doubt, don’t provide your information on unfamiliar websites or to unfamiliar people. The Medicare Call Center (1-800-MEDICARE) and your local State Health Insurance Assistance Program (SHIP) office can help you understand your Medicare choices and enroll in a plan that will meet
your needs.”

There are multiple policy recommendations made in this report including reinstating requirements over marketing MA plans that were loosened during the Trump Administration. 

The full report, Deceptive Marketing Practices Flourish in Medicare Advantage, can give you good insight on how to protect yourself while shopping for the right Medicare coverage that meets your individual needs.


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Do You Need a Will or a Trust?

I will be speaking on Wills and Trusts at the Shelby County Senior Health and Wellness Exhibition in Columbiana on 10/13/22 from 10:45 – 11:15. The event will be at the First Baptist Church of Columbiana, 208 N Main St, Columbiana 35051 from 9:30 – 1:00. After the presentation I will make available my slide presentation covering the pros and cons of wills vs. trusts on this web site, Facebook and our Slideshare Account.  


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Medicaid Estate Recovery Presentation

You can access the training presentation on Medicaid Estate Recovery in Alabama given today for the Middle Alabama Area Agency on Aging’s Take a Stand for Caregivers series at this web site. You can read or download the presentation.


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Medicaid Estate Recovery Training

I will be providing training on Alabama Medicaid Estate Recovery on Tuesday, 09/20/22, at 10:00 a.m. Central time. If you feel like you could benefit from information on this topic be sure to register with the Middle Alabama Area Agency on Aging. Free CEUs are being offered for social workers, nursing home administrators, occupational therapists and physical therapists.

We will be examining how estate recovery works in Alabama, and who is at risk for losing property to repay benefits Medicaid pays on their behalf.


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Alabama Small Estate Summary Distribution Update

The Alabama Small Estates Act allows the personal property of a deceased person to be distributed to the surviving spouse or appropriate next of kin through a court proceeding in a summary manner without full probate or administration. Summary distribution makes the passing of a small estate significantly faster.   

The requirements to use this process depends on what is in the estate and its value.  No real property can be passed by summary distribution, and the personal property has to be of limited value.

Every March the permitted value to use summary distribution is published by the State Finance Director based on the Consumer Price Index. As of March 1, 2022, the value of the estate cannot exceed $32,047 (up $1439 from the 2021 limit of $30,608).

This process is frequently used for small estates where someone leaves a bank account with no joint owner or payable on death designation.  If the person had a will, it is included in the filing to control to whom the property will be distributed, and if he or she did not have a will, the property will pass by intestate succession (the state prescribed order of distribution when a deceased has no will).      


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Medicaid Caregiver Child Transfer Exemption

When a person applies for Medicaid the agency looks back at transfers the applicant made during the previous five years to determine if any property was given away or transferred for less than the value assigned by Medicaid.  If so, a transfer penalty is incurred, and that means Medicaid will not pay for care for a length of time based on how much was transferred. 

There are some permissible transfers allowed by law resulting in no penalty being imposed. These include:

The home when a child under 21, blind or disabled lives there;
The home when a sibling with an equity interest was residing there for at least one year prior to the institutionalization;
The home when a son or daughter of such claimant who was residing in the applicant’s home for a period of at least two years immediately before the date of applicant’s admission to the medical institution or nursing facility, and who provided care to such claimant which permitted the applicant to reside at home rather than in an institution or facility (the caregiver exemption);

Transfers of money into a Special Needs Trust.

Looking more closely at the caregiver child exemption, you often see children who have lived with the parent for many years to keep them safe at home and out of a nursing home who are concerned about their own security when the parent applies for Medicaid.  If the child can meet the caregiver child standard, the home can be transferred to him or her without penalty, but often there is debt on the home preventing a transfer.  The lesson here is to pay off debt on the home as quickly as possible to be able to take advantage of the caregiver child permissible transfer.

If the transfer cannot be done, and the parent goes in a nursing home, the property counts as a resource.  But if the parent receives Home and Community Based Services through Medicaid the house does not count as a resource until the parent dies.  At that time Medicaid will claim what it paid for the parent through Medicaid Estate Recovery.  The only good news here is the estate recovery can be delayed until the caregiver child no longer lives in the home.    


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Unintended Consequences of Failing to Probate a Will

A will has no legal effect if not filed with the court and accepted as a legitimate document meeting the testamentary requirements (which is known as probate).  Many people do not know this, and they do not know that a will must be probated within five years of death.

If the will is not filed within five years of death, then the law of intestacy determines where property passes, and it may result in very unfortunate consequences for the intended beneficiaries.

The best way to explain this is an example:

Mrs. Smith’s husband died last year, and she decided to update her will.  They owned multiple pieces of property, most of which they owned as joint tenants with right of survivorship (meaning that when the first owner dies, the other will automatically own all of the property).  But the one piece of property on which their home is located was owned by her husband without right of survivorship.  Since most people don’t sit around reading deeds after the death of a spouse, Mrs. Smith did not know this until the deeds were produced to rewrite her will.  Her husband’s will left everything to her, so if his will is probated, no problem.  But if his will is not probated within five years, she will own her home property jointly with his children by a previous marriage.  Not only will she be unable direct all of the property to pass to the children of this marriage at her death, if she wants to downsize she will not be able to sell the property without the agreement of her husband’s children by a previous marriage.  And if those children agree to sell, she will only get half of the proceeds from the sale.  This could have been a serious problem for Mrs. Smith if she had not found this need to probate her husband’s will within five years of his death. 

The best practice is to always check to see if a will needs to be probated rather than assuming it does not.  With that said, not all wills need to be probated.  For instance, there may be nothing in the probate estate to pass because all assets were jointly titled in bank accounts, and the home was owned by the spouses as joint tenants with right of survivorship.  But if there is property that does not automatically pass to others, take action sooner, rather than later, to determine what you need to do.


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Arranging to Pass Personal Property at Death

The person who makes a will is known as the testator.  Rather than requiring the testator to list all of his individual pieces of personal property in a will, some states allow the person to make a list of personal property stating to whom each item should pass.  Known as a personal property memorandum, the document is separate from the will but must be referenced in the will to be legally binding. 

Alabama does not have a provision for this type of distribution, but there is a work-around.

A will may state that the personal representative has complete authority to distribute personal property.  If the personal representative is highly trusted by the testator he or she may be given such a memorandum to follow for the distribution of personal property.  It is important to recognize that the personal representative is not legally bound by this personal property memorandum, but where the testator has a high trust level, he may feel comfortable with such an arrangement.           


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Medigap Coverage

Medigap premiums for plans from insurance companies offering the same benefits vary widely, so it pays to be a smart shopper.

So why do you need a Medigap? You need this supplemental coverage to cover the Medicare gaps in coverage.  With all the deductibles, copayments and coverage exclusions, Medicare pays for only about half of the medical costs for Medicare eligible persons.  Much of the balance not covered by Medicare can be covered by purchasing a Medigap insurance policy.

As always with Medicare, timing is important.  A Medicare recipient cannot be denied a Medigap policy if he or she applies for one within six months of enrolling in Medicare Part B. Otherwise, claims relating to pre-existing conditions can be denied only during the first six months that the policy is in effect. However, federal law does not require that fee-for-service Medigap policies be offered to those who enroll in Medicare Part B because they are disabled, although some states require the insurance companies to offer at least one kind of Medigap policy to people with Medicare under 65.   Alabama is not one of those states.

Medigap policies do not fill all the gaps in Medicare coverage. The biggest gap they fail to bridge is for custodial care in a nursing facility or for skilled care in a nursing home beyond the first 100 days. For coverage of this type of care, you must either purchase long-term care insurance or qualify for Medicaid coverage.

Federal law requires that each insurance company offers the same benefits for each of the Medigap plans lettered A through M, but each company sets its own premium rates.  The 8 available Medigap policy packages are identified by the letters A, B, D, G, K, L, M, and N. Plans E, H, I, and J are no longer sold, but, if those who already had that plan when discontinued were allowed to keep that coverage. As of January 1, 2020, Medigap plans sold to people new to Medicare were not allowed to cover the Part B deductible. Because of this, Plans C and F were no longer available to people who are new to Medicare on or after January 1, 2020, but those who already had either of these two plans were able to keep their plans.   

A Medigap insurance company sets premiums in three ways:

  • Community-rated, where the premiums are the same, regardless of age
  • Issue or entry age-related, where premiums are cheaper if purchased at a younger age
  • Attained-age-related, where premiums are based on your age at the time of purchase

When choosing a Medigap plan, compare the different benefits each plan offers and the price for each company’s plan. Consider your current health status, what your health care needs might be in the years to come, as well as your future health care budget.

Premiums vary drastically from state to state.  For instance, The American Association for Medicare Supplement Insurance found that in 2022 the lowest costs for a female age 65 ranged from $99.24 per month in Dallas to $278.25 per month in New York City.

When shopping for a Medigap policy, get quotes from two or more insurance agents working for different insurance brokers. Every insurance broker may not represent all of the insurers offering a plan in the state or city where you live.

It will take time to shop around, but the money you save will be worth it.


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Avoid The Ultimate Co-mingling of Assets

It is standard advice to avoid co-mingle property of an older relative with your own money because it may be necessary to prove what belongs to each.  For instance, if your relative needs to apply for Medicaid it may be difficult to provide a clean trail of his or her assets and expenditures for five years prior to application as is required by Medicaid.

But the ultimate co-mingling is when families live on property owned by the older relative who never partitioned the property to deed individual parcels to the children or grandchildren. It is not unusual to see families who live and operate businesses off the property of an aging mother, father, or grandparent.  This can provide a great family support system and work for all parties involved.  Until it doesn’t. 

If the aging parent becomes sick enough to need nursing home placement and there are not enough liquid resources to pay for that, then the property will need to be liquidated to provide income to pay for nursing home care or to spend down assets before qualifying for Medicaid.  This leaves the relatives living on the property in a very precarious position.

If you are in this position, get legal advice now about what you can do to protect yourself and your aging relative before it becomes an emergency.