Tag Archives: elder lawyers in Maine

Long-term health care planning for same sex couples

By Patrice A. Putman, Maine elder law attorney

On June 26, 2013, the US Supreme Court overturned essential parts of the Defense of Marriage Act, a decision that has a major impact on many of my friends and clients. Until then, the federal Defense of Marriage Act “DOMA” did not allow the recognition of same sex marriage. This meant that a married same sex couple who had lived together for 20 or even 60 years was not able to take advantage of the hundreds of federal benefits that the government gives to married heterosexual couples. Many people realize that same sex couples have not been able to take advantage of the tax benefits associated with filing joint federal income tax returns or Social Security benefits. Something that people are less aware of is the inequity in how long-term care rules have applied to these couples. Now, in Maine, a state where same sex marriage is recognized, these inequities can begin to be addressed.

When a family receives a diagnosis of dementia, they not only need to live with frightening health consequences, they also need to deal with a myriad of financial consequences. Where health insurance and Medicare pay for the diagnosis and treatment of most illnesses, they do not pay for long-term care costs when a person needs to move into an assisted living or nursing home. Only long-term care insurance and Medicaid (called MaineCare in Maine) pay for long-term care. Long-term care generally costs $70,000 a year or more. MaineCare will begin contributing to long-term care costs when a person has less than $10,000 in assets.

When a married person moves into an assisted living facility, MaineCare allows the couple to transfer their assets to the spouse who still lives at home. This means that while the spouse who moves into the assisted living facility can only have $10,000, the rest of the couple’s assets can be kept and used by the spouse at home. When a married person moves into a nursing home, MaineCare allows the spouse living at home to own a home, a car, personal property, and have other assets totaling $115,920. Unmarried couples do not have these options. Only the $10,000 rule applies to the unmarried person.

Now that the Supreme Court has declared significant parts of DOMA to be unconstitutional, the federal government must begin providing same sex spouses the same ability to transfer and protect their hard-earned assets that other married couples have always had. Now, when dementia hits a married gay or lesbian couple, they will have the same heartbreak and the same financial concerns that other married couples have, not 100 times more – at least if they are lucky enough to live in a state like Maine where same sex marriages are allowed and recognized.

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Second marriages: what if your spouse requires expensive long term care?

By Sally Wagley, Maine elder law and estate attorney

We have had a number of clients, either divorced or widowed, become happily married later in life. Sadly, after a number of years of love and companionship, one of them may start to decline and need expensive care in a nursing home or assisted living facility. For purposes of discussion, we’ll assume that the husband is the one who needs institutional care, with the wife remaining at home. The wife may find out to her chagrine that she is expected to use her own assets — accumulated by her before the marriage from a lifetime of work –on her husband’s nursing home costs. She may find out that after he has depleted his own funds, he will not qualify for state assistance through Maine’s Medicaid program (called MaineCare) until she has spent down her own funds to a certain point. This causes her great anxiety, for two reasons: most important, she wants to make sure that she has enough to live comfortably for the rest of her life; in addition, she may want to be able to pass on assets to her own children.

What can a couple do in this situation? Advance planning, while both are still healthy, is the best option. If they qualify for and can afford long term care insurance, that will make it less likely that the wife will have to spend down her own savings. Another option is an irrevocable trust, whereby the wife places some of her own assets into an irrevocable trust, naming one or more of her children as trustees. She gives up control of the principal in the trust but will receive income from it. In this way, she can put some of her assets off limits for purposes of her husband’s possible future long term care expenses. In order for her to safely do this, however, she must feel reasonably confident that neither she nor her husband will need long term care in the next five years, as MaineCare has a “five-year look-back” rule which penalizes people who transfer assets in order to qualify for MaineCare.

For a couple who is already in crisis, there are still options. The spouse may purchase a certain type of annuity which meets the requirements of the law. This annuity will protect her assets while providing a stream of income. She can invest her countable assets into exempt assets, such as repairs or improvements to her home, or the purchase of a newer car.

As a last resort, some spouses choose to divorce for the purpose of preserving assets. This is a wrenching decision for most clients, but may be the only option for ensuring that the spouse at home to preserve what she has worked so hard for over the years. This divorce, however, will not prevent the wife from continuing to provide love, companionship and care to her husband, just as if they continued to be married.

Second marriages: providing for a surviving spouse in a trust

By Sally Wagley, Maine elder law and estate attorney

We have had a number of clients who fit the following profile: They are married for a second time, each with children from a previous marriage. One of them has substantially more than the other. Let’s assume for discussion purposes that the husband is the one with more than the wife. The husband wants to ensure that, should he die first, the wife has enough income to live comfortably for the rest of her life. However, he does not want to leave assets to her outright, as he wants to make sure that his children will ultimately inherit.

One option is for the husband to leave some or all of his estate to a trust for his wife’s benefit. Such a trust typically provides that she gets all the income generated by the assets placed in trust, to give her a stream of income which is adequate to maintain her standard of living. The trust may provide, in addition, that should the trust income and her own income be inadequate, the wife can receive amounts of principal which are needed for this purpose.

Who should be the trustee of this trust? One option is for the husband to name one or more of his children as trustees. If his estate is substantial, it is possible to have a bank serve as trustee. Or, if the husband trusts the wife to be a responsible trustee and to abide by the rules of the trust, he can name her to be the trustee, with one or more of his children to become the successor trustee if she becomes incapacitated.

This arrangement may be coupled with giving the wife a life estate in any real estate which he owns separately, such as a primary home or a cottage.

Change in Medicare’s “substantial improvement” standard

By Patrice A. Putman, Maine estate and elder law attorney

Aging is never easy and many people experience a short hospitalization followed by a longer stay in a skilled nursing facility. Eldery people in Maine and elsewhere have generally understood that their hospitalization will be covered by Medicare and that Medicare can cover skilled nursing care for up to 100 days. After 100 days, continued care is considered “long-term” or “custodial” care which Medicare does not pay for.

Up until the fall of 2012, Medicare had a practice of only paying for a skilled nursing facility so long as the patient continued to make “significant improvement”. If the patient was no longer making significant improvement, Medicare’s practice was to stop paying, even if this was well before the 100 day allowance. Last fall, this practice of terminating coverage based on the “substantial improvement” standard ended. Now, the new standard for continued Medicare coverage is a whether the patient needs skilled care — even if it would simply maintain the patient’s current condition or slow further deterioration. The stated standard is “The skilled services must be reasonable and necessary for the diagnosis or treatment of your condition.” The care must also be ordered by a physician. This is a big and positive change to a long-standing practice. Medicare is now covering some patients that it was not covering just six months ago.

If you or a loved one is denied Medicare coverage for skilled nursing care in Maine, it may be helpful to meet with us. We are Maine elder law attorneys (referred to sometimes as “elder lawyers” or “elder care attorneys”). We would review the situation to determine whether you are entitled to continue coverage and then help you resolve this with Medicare.

The information provided in this post is for educational purposes only. It describes the law in effect at the time the materials were written. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Should I give my house to my children?

           A question I often hear from clients is:  “Should I give my house (or camp) to my children?”  Clients often believe that deeding property to others will preserve it in the event of nursing home expenses. Clients may also want to avoid probate, or may want children to help with taxes, insurance and maintenance. It is essential for any client considering this move to know the risks and benefits.

 Possible benefits:

  • If the client is able to go five years without needing nursing home care, but later does need such care, the property will not count against the client if the client seeks financial help from the MaineCare (Maine Medicaid) program.
  • If the property is out of the client’s name at death, the State and other creditors will not have a claim against the property.
  • As a condition of transferring the property (especially a camp), children may agree to pay all or part of the property-related expenses, making life a bit easier for a client on a fixed income.
  • The client may, if desired, maintain a degree of control over the property with a life lease or life estate.*

 Possible risks (and some ways to reduce risks):

  • Nursing home expenses:  If the client needs nursing home care within five years after deeding the property, and if the client needs to apply for MaineCare (Maine Medicaid), the client will be penalized for the gift and will be ineligible for MaineCare for a period of months or years.  The client will either have to go without the needed care for that time period or will have to ask the children to pay for care until the period of ineligiblilty is over.
  • Loss of control:  Having given the property away, the client will need to get approval from the children if the client wants to sell or refinance the property.  (The client can, however, maintain the right to live in or use the property by insisting on a life lease or life estate.*) 
  • Child’s creditors or divorce:  If the child gets into financial trouble or bankruptcy or gets divorced, the child’s creditors or ex-spouse may be able to obtain an interest in the property. (However, the transfer of the property to an irrevocable trust may offer some protection against a child’s creditors or ex-spouse.)  
  • Child’s unexpected death:  If a child unexpectedly dies before the parent, the property may go to the child’s own heirs. (The irrevocable trust or a joint ownership arrangement may be helpful in this circumstance as well.)
  • Tax consequences:  If the client transfers a residence to a child and the property is later sold, there will be a capital gains tax, as the client will no longer be able to use the IRS primary residence exclusion.  The client may also lose property tax exemptions, such as the homestead and veteran’s exemptions.  In addition, the child may later, upon selling the property, pay a higher capital gains tax than if the child inherited it (unless a life estate* or similar arrangement is used).  

 Caution concerning life estates:  Be aware, however, that if you reserve a life estate in the property (treated differently  from a life lease under the State’s MaineCare rules), this  may expose the property at your death to a MaineCare “estate recovery” claim.

  Questions for clients:

          Before advising a client about whether to transfer property, I ask the client a number of questions, including: 

  • How is your health? What are the chances that you might need long term care in the next five years?
  • Do you have long term care insurance?
  • Do you have enough money to pay for nursing home care for all or most of the next five years?
  • Are you willing to give up a degree of control to your children? 

          In short, there is no simple answer to the question “Should I give my property to my children?”  While this may be a reasonable step for some clients, for others (especially older people with chronic health problems and little savings) the risks may be too great.  Any client considering this move should first obtain legal advice from a skilled estate planning or elder law attorney.


The information provided here is for educational purposes only, and should not be construed as legal advice or an answer to your specific legal problem.

Sally M. Wagley practices elder law, estate planning and estate administration with the firm of Levey and Wagley, P.A. in Winthrop, Maine, www.leveyandwagley.com.    


Legal Help for Family Caregivers

The important role of family caregivers.  More than 50 million people in the U.S. provide care for a chronically ill, disabled or aged family member each year. Some “tend out” to a relative; others give up their homes to move to a relative’s home; and others bring a relative into a guest room or in-law apartment. Consider the following survey data from 2000:

  • Family caregivers provided the overwhelming majority of long term care in the U.S.:  about 80%.
  • Over three-quarters of adults in the community in need of long term care relied exclusively on family and friends for care; only 8% use paid help only.
  • 17% of family caregivers provided 40 hours of care a week or more.
  • The estimated value of “free” services provided by these caregivers was $306 billion a year ($1.8 billion in Maine) — almost twice the amount spent on paid home care and nursing home care combined.
  • 1.4 million children under age 18 provided care to an adult relative.
  • 30% of caregivers are over age 65, many with their own health problems.
  • More than half of family caregivers work worked outside the home while caring for a family member.
  • The typical working family caregiver lost $109 per day in wages and health benefits as the result of care giving responsibilities.

(Source:   National Family Caregivers Association, www.nfcacares.org.)

Typical family caregivers. Some typical family caregivers I have seen in my practice:

  • Alice, a single teacher in her 50’s, whose father has dementia, takes early retirement with a reduced pension to live with and care for him full time.
  • Bertha and Gladys, maiden ladies in their 70’s, live together in the family home. Bertha cares for Gladys, who has Parkinson’s and receives MaineCare.  Bertha worries she will lose the home when Gladys dies.
  • John, a single father, leaves work frequently to drive his mother to doctor’s appointments, and worries about losing his job.  He’d like to hire a neighbor to help out, but can’t make sense of the payroll requirements.
  • Frances, married to Albert for 40 years, cares for him at home with the help of her two children.  Albert will soon need nursing home care, and Frances worries that the cost will take all their savings.

Answers and solutions for family caregivers. Caregivers face additional stress when encountering legal and financial issues.  There are some answers and some solutions for them, such as:

  • In the case of a married couple, when one is in a nursing home or assisted living, the spouse at home need not spend down all savings to pay for care, nor must she give up the home.
  • With proper advice, a married couple with one enrolled in MaineCare have opportunities to protect their estate for their heirs.
  • Hiring paid caregivers can be made easier with the help of an accountant or payroll service to handle tax withholding and other requirements.
  • Investment in income-producing property can be a wise move for some people, helping with MaineCare eligibility and helping to minimize the impact on their finances.
  • Under certain circumstances, an older person who wants to give his home to a live-in caregiver child or to a disabled child may, with proper legal advice, do so without risking MaineCare eligibility.
  • Older siblings who own and live in a home together can ensure that the survivor is able to keep the home upon the death of the first of them.
  • Maine’s “Long Term Care Partnership Program,” now in the development stage, provides incentives to people who purchase long term care insurance by enabling them to preserve assets for their heirs if they later receive Maine Care.
  • With a personal care contract properly drafted by an attorney, an older person may pay a relative or friend to provide care, without risking MaineCare eligibility.
  • A caregiver who takes time off of work to help an ill relative may be protected under the state and federal Family Leave Act.
  • A caregiver and older person who want to collaborate financially to build an in-law apartment should obtain advice to minimize tax consequences and ensure MaineCare eligibility later on.
  • Middle income elderly and disabled people seeking care at home may meet MaineCare income guidelines and should not hesitate to apply for help to supplement the help of a family member.

Caregivers in these situations should obtain professional advice.   “Self-help” is usually not a good idea.

Helpful links for family caregivers:

Spectrum Generations’ Family Caregiver Support program.  Download their publication, “Connections: A Guide for Family Caregivers in Maine”:  http://www.seniorspectrum.com/Services/Family_Caregiving.asp

Services available through Maine’s five area agencies on aging under the National Family Caregiver Support Program:  http://www.maine.gov/dhhs/oes/fcsp.htm

Information on respite/alternative care and caregivers’ support groups:  http://www.maine.gov/dhhs/oes/caregivers.htm