Healthcare Proxy, Durable Power of Attorney & HIPAA Authorization: 3 Estate Planning Documents Your College Student Needs

Healthcare Proxy, Durable Power of Attorney & HIPAA Authorization: 3 Estate Planning Documents Your College Student Needs

by | Sep 20, 2022 | Blog, Estate Planning, Healthcare Proxy

healthcare proxy

As your child heads off to college, you may have a lot on your mind. Not only is the process of choosing and applying to college a stressful one, but the campus visits and Target shopping sprees in preparation for their segue into higher learning can leave you feeling overwhelmed and emotionally drained. While we don’t want to add another stressor to your plate, there is one important college planning to-do that is too often overlooked: estate planning.

You have spent the majority of your life making medical, legal and financial decisions for your child, but once your child reaches the age of majority—18 in most states (19 in Alabama) —you will lose that control. Without a healthcare proxy, durable power of attorney and HIPAA authorization, you may not be able to gain access to their medical records or finances…even if you are largely responsible for funding their college education!

Estate planning for 19-year-olds is much less complicated than planning for those who are married, have children, or have accrued a complex array of assets. However, it is equally important to do so. If your child is involved in an accident and becomes incapacitated, having these three essential documents in place will ensure that (a.) you have access to their medical records and (b.) are able to make medical and legal decisions for them.

Healthcare Proxy

If your child is injured or becomes seriously ill to the point they are unable to make their own medical decisions, you will not automatically be allowed to make those decisions for them. By drafting a healthcare proxy (also referred to as a medical power of attorney or advanced medical directive) your child can grant you access to their medical records, and legal rights to make medical decisions on their behalf. Without a healthcare proxy in place, you may need to petition the courts to gain access to your child’s medical records, or to make healthcare decisions on their behalf.

HIPAA Authorization

HIPAA regulations prohibit the disclosure of medical records, and, as a result, deny parents’ access to such information for their adult child. Due to this, parents should obtain a blanket HIPAA authorization from their child if they want the option of being apprised of their adult child’s health records. The HIPAA release is an important part of the estate planning process and may be incorporated into the health care proxy.

Durable Power of Attorney

The durable power of attorney is similar in function to the healthcare proxy. It will allow your child to name an agent—you, or another trusted family member—who can make financial and legal decisions on their behalf, should they become unable to do so. Many parents don’t think their adult children have enough financial resources to warrant a need for a durable power of attorney, however without this important document, you will not be able to communicate with banks, universities, or other related institutions on their behalf…even if you are the one footing the bill for their college education!

These estate planning documents are relatively quick and painless to create. Your college-aged child will only need to make a few decisions about who they want to name as appointees. Hopefully none of these documents will be needed, but if unexpected tragedy strikes, you’ll be glad you have them on-hand.

Contact Miller Estate & Elder Law

At Miller Estate & Elder Law, we can make the process of drafting a healthcare proxy, durable power of attorney, and HIPAA authorization fast and efficient. Contact us using the brief form below and a member of our team will reach out to schedule an initial consultation.



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Should I be Thinking About Medicaid Asset Protection Planning?

Should I be Thinking About Medicaid Asset Protection Planning?

by | Sep 7, 2022 | Elder Law, Medicaid Qualification

Medicaid is a federal program administered by the states that helps individuals who meet certain asset criteria pay for long-term care costs. Because Medicaid is a means-tested program, certain financial conditions must be met to qualify, which means that it is important to plan ahead. Unfortunately, people often wait until it is too late and a sudden illness, disability, or other crises occurs before planning for long-term care. Medicaid crisis planning is a strategy that can help you qualify for Medicaid, without experiencing financial ruin.

Long-term care is expensive, and these costs only continue to increase. The average life span of adults is also increasing, which translates to more years of care at increasingly higher rates. Without a plan in place, these costs could be financially devastating. In fact, without proper planning, your life savings could be wiped out within months of needing long-term care.

Due to Medicaid’s strict eligibility requirements, many individuals fail to meet the income and asset requirements, but still cannot afford the cost of healthcare on their own. Medicaid planning is a way to assess an individual’s situation and devise a strategy to help qualify for Medicaid if it becomes necessary.

Two popular strategies employed to meet these financial qualifications are:

  • Spend Down
  • Medicaid Asset Protection Trust

The spend down strategy is a way to reduce countable assets by carefully spending excess funds on things like medical expenses, home improvements, prepaid funerals, etc. To prevent applicants from simply giving away their money or resources to qualify for Medicaid, the federal government implemented the “look-back period.” Each state’s Medicaid program uses slightly different eligibility rules, but most states examine all of a senior’s financial transactions dating back five years from the date of their application. If a transaction is found to be in violation, the applicant will be assessed a penalty.

When it comes to the length of the penalty period, there really is no limit.  It is based on the amount of money given away during the last 5 years.  Unfortunately, if a senior has gifted their assets during the look-back period and requires nursing home level care, this will have to be paid out of pocket until the penalty period runs out and they become eligible for coverage.

The other problem with the spend down strategy is that your assets are depleted.  As an individual, you can only have $2,000 in countable assets!  A more favorable strategy to spending all of your assets is to implement a Medicaid Asset Protection Trust (MAPT).  A MAPT is exactly as it sounds – a trust designed to protect assets from being counted for Medicaid eligibility. When planned properly, an MAPT protects the home, other properties, and investments.  When designed properly and in advance, the assets in the trust will go to your heirs instead of having to spent on nursing home care.

The trust must be irrevocable for exemption from Medicaid’s asset limit. This means that the trust cannot be cancelled or changed. Once the assets are transferred into the trust, they no longer belong to the individual, nor can that individual regain ownership of the assets. If the assets are in a revocable trust, Medicaid considers the assets to still be owned by the Medicaid applicant. This is because they still have control over the assets held in the trust.  As a result assets in revocable trust do not provide the necessary asset protection from long term care costs.

Planning well in advance of the need for long-term care is the best course of action when considering a Medicaid Asset Protection Trust.  Transfers of assets to MAPTs do not result in immediate Medicaid qualification as they are subject to the 5 year look back as well.  The advantage is that if the assets have been in the MAPT for 5 years, they are not counted by Medicaid.  Therefore, the sooner you do the planning and get the MAPT set up, the more likely your nest egg will be protected if you need long term nursing home care down the road.

At Miller Estate and Elder Law we have extensive experience advising clients on Medicaid planning. Contact us today so that we can help you qualify for Medicaid, while also protecting your assets and your loved ones.

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What is a Medicaid Crisis and What Are Your Options?

What is a Medicaid Crisis and What Are Your Options?

by | Aug 20, 2022 | Asset Protection, Elder Law, Long-Term Care, Medicaid Planning

Imagine that your parent or another aging loved one suddenly finds themselves in need of nursing home care. If they haven’t already planned for the potential cost of long-term nursing care, they could find themselves in an incredibly compromised and vulnerable position. Because of the strict income and asset limitations that dictate who is eligible for Medicaid, your parents (or even you) may end up blowing through your life savings in order to pay for the cost of long-term care.

It is well known that Medicaid has a 5-year lookback period, so those who find themselves in immediate need of long-term care often assume there is nothing they can do to get qualified.

Fortunately, that is a myth. With the help of a qualified elder law attorney, Medicaid Crisis Planning could help you or your loved ones preserve some of their assets while becoming eligible for Medicaid.

What is Medicaid Crisis Planning?

About 70 percent of American seniors will need some type of long-term care planning, many of whom will find themselves in nursing homes. Because of the high nursing home costs—the median annual cost of a private room in a nursing home is over $100,000—it is important to meet with an elder law attorney to work out a detailed plan to prepare for this situation long in advance.

If, however, you find your loved one facing an unexpected health emergency that will likely require nursing home care, you do have options. For people who have assets significantly higher than the Medicaid threshold, the best of these options is Medicaid Crisis Planning. Medicaid Crisis Planning is a way to avoid spending down your entire life savings when faced with an immediate or near-immediate health situation.

How Does Medicaid Crisis Planning Work?

With Medicaid Crisis Planning, the person facing a nursing home visit gifts a large part of their assets—sometimes up to 50 percent—to a Medicaid Asset Protection Trust, or in some cases directly to a child or another loved one. The rest of the person’s assets are then converted to an income stream through a Medicaid Compliant Annuity (or in some states a promissory note) After these transfers are completed, the patient applies for Medicaid to cover the nursing home cost.

In most cases, the application will be approved subject to a penalty period.  That penalty period is based on the amount of the gift they have made to their child or other loved one (and any other transfers for less than fair market value that have been made in the past 5 years). During this period of ineligibility, (penalty period) the person will privately pay for nursing home care using their monthly income, as well as the funds produced by the annuity or payments from the promissory note or annuity. Once the ineligibility period has expired, Medicaid will start paying the monthly nursing home bill.

While the applicant will need to use some of their life savings initially, in the long-run, they will be able to salvage some of what they’ve worked a lifetime to accrue.

Long-Term Care Planning

With proper long-term care planning, you and your loved ones can be protected from having to spend down your entire life savings when faced with an unexpected nursing home admission—without the need for Medicaid Crisis Planning. An elder law attorney will help you protect your assets and guide you through which financial moves to make (or NOT make) as you age. For example, it may be advised that you set up a Medicaid Asset Protection Trust or purchase assets that are exempt from Medicaid.  This can prevent you from incurring a penalty, should you need to apply for nursing home Medicaid in the future.

The sooner you start planning for the cost of long-term nursing care, the better.  As it goes, an ounce of prevention is worth a pound of cure.

Whether you are interested in long-term care planning or find yourself in need of Medicaid Crisis Planning, it is important that you work with an experienced estate and elder law attorney. Elder law matters are as complicated as they are essential, so choosing the right professional can make all the difference.

At Miller Estate and Elder Law, we have many years of experience with long-term care planning and Medicaid Crisis Planning. Call (256) 251-2137 to speak with a member of our legal team today or contact us using the brief form below.


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Providing Care After an Alzheimer’s Diagnosis: Caring for Aging Parents

Providing Care After an Alzheimer’s Diagnosis: Caring for Aging Parents

by | Jul 26, 2022 | Aging Parents, Elder Law, Long-Term Care

When a parent or another loved one receives an Alzheimer’s diagnosis, the news lands like a devastating blow. Knowing that you will soon watch someone you love lose their memory and struggle with daily tasks is emotionally wrenching. In addition, your loved one will eventually need intensive dementia care, which can put heavy strains on a family—both psychologically and financially.

Although it’s unlikely that you will be able to provide all the care necessary for a parent diagnosed with dementia, many children do take on a large share of the burden of looking after their parents. For most people, caring for aging parents or loved ones who have received an Alzheimer’s diagnosis is a whole new experience, and one that is very overwhelming. Knowing a few basics about dementia care can help ease the burden.

Everyday Care for Those Diagnosed with Dementia

Because people with Alzheimer’s will start to experience changes in memory and their ability to think clearly, they will need help performing many everyday tasks. The inability to perform what used to be simple tasks can prove quite frustrating, and understandably so. Here are some ways you can help support a loved one who is struggling with dementia:

  • Establish a routine. For people with Alzheimer’s, doing the same thing at the same time every day can help them stay focused on and involved in their own lives. Furthermore, certain tasks need to be performed at a time when the patient is most alert, so it’s important to schedule these at that specific time each day.
  • Help your loved one write down tasks and reminders. Writing down the things they need to do and remember will encourage them to take responsibility for their life, and will also help keep their mind sharp.
  • Allow the person to do as much as possible by themselves. Although Alzheimer’s patients will need more and more help as their disease progresses, it’s important to allow them as much independence and autonomy as possible.
  • Provide choices. Providing the person with simple choices, like the choice between two shirts to wear, can help them feel empowered and stay focused.
  • Reduce distractions. Make sure the environment your loved one lives in is free from distractions, particularly during mealtime or conversations. Otherwise, they may get confused.

Safety Considerations for People Diagnosed with Alzheimer’s

As well as helping the person with their daily tasks, providing them with a safe environment is an important part of dementia care. Here are a few things you can do to prevent them from getting injured:

  • Lock away potentially dangerous objects, such as cleaners, medicines, matches, or knives.
  • Remove anything that the person could trip over, such as extensions cords or small rugs. Also, install handrails or grab bars to help the person maintain their balance.
  • Keep the thermostat on a lower setting so that the person won’t accidentally burn themselves.
  • Insert safety plugs into unused electrical outlets.

Legal Concerns

In addition to providing care for a loved one diagnosed with dementia, there are also important legal considerations that come with looking after their affairs. At the first word of an Alzheimer’s diagnosis, you should contact an elder law attorney to ensure the proper legal documents are in place so you can focus on providing care, and not a lengthy and costly legal process. Drafting documents while your loved one is still coherent is essential, though there are limited options for those whose loved ones have already lost significant cognitive function.

At Miller Estate and Elder Law, we have many years of experience helping people whose loved ones have received an Alzheimer’s diagnosis. Use the brief form below to download a copy of our free guide: Caring for Aging Parents or call (256) 251-2137 to speak with a member of our legal team today!



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Naming a Guardian for Your Minor Children: 5 Questions to Ask Yourself

Naming a Guardian for Your Minor Children: 5 Questions to Ask Yourself

by | Jul 22, 2022 | Estate Planning

two young girls running through feed

Nobody likes to think about the possibility of an untimely death. If you have young children, the thought of leaving them alone is even more difficult to contemplate. That’s precisely why naming a guardian for your minor children is so important. If you have children under the age of 19, naming someone you trust as a guardian in your will is the only way to ensure that they will be looked after and taken care of. If you don’t identify a guardian, the court will choose one…and it might not be someone well-equipped to properly look after your children.

Guardianship of minors can be a sensitive issue, but for many people, it is a key part of estate planning. Here are five important questions to ask yourself when selecting a guardian:

  1. Are my partner and I on the same page? The answer to this question will likely be different depending on whether you are still with your partner, but—either way—it is essential that you get on the same page. Even happily married parents find that they are often on very different pages about who should take over for them in the event of death or incapacitation. Divorced parents may have a wide array of conflicts when determining guardianship of minors. For example, one parent may not want the other parent to be awarded custody in the event of tragedy. The bottom line is that you and your co-parent need to get on the same page, and you need to work with an estate planning attorney who can ensure your wants and wishes are put into writing.

  2. How do I handle the question of multiple children? One concern that can make the guardianship of minors tricky is what to do if you have multiple children. If it is essential that your children stay together, make a note of that in your will. Also, when naming a guardian, be sure that the person you choose is equipped to take on multiple children.
  3. Where is the guardian located? Your passing is already a huge trauma for your children. If you choose a guardian who lives far away, and your children must move, this can make an already difficult situation even more mentally straining. In addition, it is important to consider the school district your child would be transferring to.
  4. Is your guardian financially equipped to handle the job? Your preferred guardian may be an ideal choice. However, if they don’t have the financial means to take care of your children, you might have to look for someone else. Ideally, your estate will have provided for the upbringing of your kids, but it’s likely that your guardian will have to take on at least some of the costs of support…
  5. How will your guardian handle the responsibility? Assuming responsibility for one or more children is not an easy task, and however much your guardian may be invested in caring for minor children, not everyone is prepared to handle the challenges. When you have identified a potential guardian, it is important to have a long talk with that person to ensure that they know everything the job will entail, and that they are prepared to step up to the challenge.

Naming a guardian for your minor children is not a pleasant or easy task. Yet, if you are to ensure their future stability and happiness, it can be one of the most important parts of the estate planning process. Although the process is emotionally-charged, working with an experienced and sensitive estate planning attorney can make it as painless as possible.

At Miller Estate and Elder Law, we have many years of experience helping parents navigate the often painful question of the guardianship of minors. Contact us today at (256) 251-2137 or complete the brief form below to get started ensuring that your children will be well provided for, no matter what happens.



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