Jan Neal Law Firm LLC

Alabama Elder and Special Needs Law


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Elder Law Training at OLLI

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On October 10, 2016, Jan taught the first of a two part presentation on Elder Law at  Osher Lifelong Learning Institute (OLLI) at Auburn University entitled Elder Law:  Enhancing the Lives of Seniors Through Education, Planning For What Comes Next.  The second session will be taught on Monday, October 17, 2016, at 2:30 p.m. at The Clarion in Auburn, Alabama.  

Topics covered in this training include:  Older Americans Act Legal Assistance; Important Documents Needed for Proper Planning; Authority Issues; Long-term Care Levels of Care and Payment Options; Medicaid for Long-term Care; Special Needs Planning; Probate; Administration of Estates; Planning for Last Remains and Funerals.

A 39 page Keynote presentation covering these topics is provided to course participants.

Anyone interested in this and the many other learning opportunities available through OLLI can learn more by visiting the OLLI website.


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Alabama ABLE Act to Provide Planning Opportunity for Disabled Persons

Husband and handicapped wife taking stroll in park alley

On June 9, 2015, Governor Bentley signed ABLE Act legislation into law in Alabama permitting the state to implement a program to permit developmentally disabled persons to have limited tax free savings without losing public benefits.  ABLE stands for Achieving a Better Life Experience, and the act was passed on the federal level in December 2014 permitting each state to set up its own program.  Though the program in Alabama has not yet become operable, it will be getting underway in the coming months.

The ABLE Act will permit up to $14,000 per year to be placed in one approved bank account set up for a developmentally disabled person living in Alabama (one who became disabled prior to age 26) with those funds exempt from counting as resources for public benefit purposes.  This means that the disabled person can have these funds to use for disability-related expenses without losing his or her public benefits such as SSI or Medicaid.  Up to $100,000 can be accumulated in an ABLE account without loss of SSI, and $350,000 can be accumulated in such an account in Alabama without loss of Medicaid (note that this is state specific, and some states may permit an accumulation as high as $425,210 or as low as $235,000 before loss of Medicaid).  At the death of the disabled person any funds left in the ABLE account will be payable to Medicaid to repay that agency in amounts up to what the agency paid for the disabled person’s health care costs.

Contributions to an ABLE account are not tax deductible, and income earned by an ABLE account is not taxable.

Stay tuned for more information about these accounts in the coming months or go to the Alabama State Treasury’s ABLE website and sign up for an update notification when accounts are available.    


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Elder Law at OLLI

Jan is teaching a two part course on Elder Law at Osher Lifelong Learning Institute at Auburn University (OLLI at Auburn).  See page 11 of the OLLI Spring 2016 catalog for the course description.  The first session is Wednesday, March 30, 2016, from 10:15 a.m. – 11:45 a.m., and the second will be on Wednesday, April 6, 2016, from 10:15 a.m. – 11:45 a.m.  Topics to be covered include Older Americans Act Legal Assistance, Authority Issues and Advance Directive Options, Long-Term Care Planning, Long-Term Care Payment Options Including Medicaid, Special Needs Planning, Probate, Administration of Estates and Funeral Planning.  If you aren’t a member of OLLI, check out all the benefits and learning opportunities here.

Materials for the training can be downloaded at elder-law-training-for-olli-at-auburn-033016-60244085 and will be posted at this site soon.


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Incentives to Purchase Long-term Care Insurance

shutterstock_305517047Long-term care insurance was originally designed to protect purchasers from the catastrophic expense associated with long-term care in a nursing home. However, over time the public has clearly voiced a preference for home care over care in an institution. In response to that preference, long-term care insurance companies now offer a variety of in-home services to help individuals pay for services to assist a person with activities of daily living. In fact most policies sold today are comprehensive policies which cover services in different long-term care settings including at home.

The majority of policies sold today are comprehensive policies. They typically cover care and services in a variety of long-term care settings to include at home skilled nursing care, occupational, speech, physical and rehabilitation therapy, and personal care. Some policies also cover homemaker services, such as meal preparation or housekeeping as well; adult day health care centers; hospice and respite; assisted living; and other residential care facilities and nursing homes.

Consumers should be aware of limitations on coverage, such as prior hospitalization requirements, and pre-existing condition exclusions. It is important to thoroughly understand what is being purchased, so a good deal of homework is involved in examining long-term care policies. Be sure that the services purchases are not services that are already covered by Medicare.

There are incentives in the form of resource protection offered by Medicaid for a person to purchase long-term care insurance.

For policies issued prior to March 1, 2009, Medicaid will not consider resources of a person equal to the amount of long-term care insurance benefit payments in determining Medicaid eligibility when the long-term care insurance policy has paid at least the first three years of nursing home care and/or home health care services.

For policies issued on or after March 1, 2009, Medicaid will not consider resources equal to the amount of benefits paid (dollar-for-dollar) by an Alabama Long-Term Care Insurance Partnership Policy (Partnership Policy) for long-term care services received in determining Medicaid eligibility and in estate recovery. The amount to be excluded will be above and beyond the standard resource exclusion provided under the Medicaid State Plan. To qualify for this exclusion, the individual must be covered by a Partnership Policy that has been certified by the Alabama Department of Insurance as a policy that covers a person who was a resident of Alabama when coverage first became effective under the policy. Medicaid will provide reciprocity with respect to long-term care insurance policies covered under other states.


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Planning For Long-Term Care

12x14 Going To The Drawingboard-2 copy

Planning for long-term care is critical for seniors and families with aging relatives.  Financial options are limited, and without proper planning placement can be cost prohibitive.  It is better to get advice earlier than later because earlier planning permits the use of more options and fewer headaches.  Waiting until a placement is imminent makes it much harder for all persons involved.

It is particularly important to get advice if your aging relative has a reverse mortgage on his or her property to determine how to handle repayment in connection with a Medicaid application.  Unwittingly, relatives make arrangements with the mortgage company and later run into serious problems with Medicaid’s interpretation of disposal of the property.  Remember that every $5700 worth of uncompensated value transferred within five years of application will result in a month of Medicaid ineligibility.

I tell people routinely that if you feel turned inside out when you complete a Medicaid application…well, that’s normal!  While it can be unpleasant and time consuming, the process can be manageable when you know what Medicaid expects of you.

Put on your drawingboard a call to us to discuss your options and to get your loved one’s affairs in order before it becomes an emergency.


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Medicaid Estate Recovery

The Alabama Medicaid Agency is required to recoup funds it spends paying for health care for certain eligible individuals after those service recipients die.  Those Medicaid recipients are:

  • people who die in nursing facilities, intermediate care facilities for people with intellectual disabilities or other medical institutions;
  • persons who were 55 years of age or older when medical services were covered by Medicaid; and
  • persons who had a special needs trust.

If any assets (real or personal property, bank funds, vehicles, cash, etc.) remain in the estate of those Medicaid service recipients, the agency will try to recover an amount of money up to what it spent for care.

When estate recovery is initiated by Medicaid, a letter is sent to family members from the Medicaid Estate Recovery Program Recovery Unit in Irving, Texas.  A questionnaire is provided to determine what the individual owned at the time of death.  While the questionnaire may appear to be straightforward, care in completing is advised.  Challenges to estate recovery may exist based on what is in the probate estate and whether the family qualifies for an undue hardship.  Estate recovery may be delayed based on the status of the surviving family members.   Legal advice is recommended to assure that family members know their rights.