Long-term care involves not only a loss of personal autonomy; it also comes at a tremendous financial price. Proper planning can help your family prepare for the financial toll and protect assets for future generations. 
Long-term care can be very expensive, especially around-the-clock nursing home care. Most people end up paying for nursing home care out of their savings until they run out, at which point they can qualify for MassHealth to pick up the cost. 
MassHealth rules require that recipients have no more than $2,000 in "countable" assets (the figure may be somewhat higher in some states) and limited income. Any excess assets need to be spent down before you can qualify for MassHealth. In addition, in order to be eligible for MassHealth, you cannot have recently transferred assets. If you transfer assets within five years of applying for MassHealth, you may be subject to a penalty period during which you cannot receive benefits. After you die, MassHealth also has the right to recover from your estate, which in the case of a MassHealth recipient usually means only the house.
Careful planning in advance can help protect your estate for your spouse or children. If you make a plan before you need long-term care, you may have the luxury of distributing or protecting your assets in advance. This way, when you do need long-term care, you will quickly qualify for MassHealth benefits. The following are some tools that can be used in an estate plan to prepare for MassHealth: 

• Trusts. One of most important estate planning tools you can use is an "irrevocable" trust -- a trust that cannot be changed after it has been created. In most cases, this type of trust is drafted so that the income is payable to you (the person establishing the trust, called the "grantor") for life, and the principal cannot be applied to benefit you or your spouse. At your death the principal is paid to your heirs. This way, the funds in the trust are protected and you can use the income for your living expenses. For MassHealth purposes, the principal in such trusts is not counted as a resource, provided the trustee cannot pay it to you or your spouse for either of your benefits. However, if you do move to a nursing home, the trust income will have to go to the nursing home. And to avoid MassHealth’s “look-back period,” the trust must be funded at least five years before applying for benefits.   
• Annuities. Annuities are another tool married couples can use when a MassHealth application is imminent. An immediate annuity, in its simplest form, is a contract with an insurance company under which the policyholder pays a certain lump sum of money to the insurer and the insurer sends the policyholder a monthly check for the rest of his or her life. In most states the purchase of an annuity is not considered to be a transfer for purposes of eligibility for MassHealth, but is instead the purchase of an investment. It transforms otherwise countable assets into a non-countable income stream. As long as the income is in the name of the spouse who is not in the nursing home, it's considered non-countable.  
• Protecting your home. After a MassHealth recipient dies, the state must attempt to recoup from his or her estate whatever benefits it paid for the recipient's care. This is called "estate recovery." For most MassHealth recipients, their house is the only asset available, but there are steps you can take to protect your home. Putting your house in a trust can be a good option, but once a house is placed in an irrevocable trust, you cannot remove it. .

Talk to your attorney about whether your estate plan should include preparation for possible MassHealth eligibility. 

The IRS has announced that the tax deduction for medical expenses includes amounts spent on face masks, sanitizer and other products purchased to prevent the spread of the coronavirus. 
If you have significant medical expenses, you may be able to deduct them from your taxes. Many types of medical expenses are deductible, from long-term care to hospital stays to hearing aids. This year, the IRS has made clear that “medical expenses” also includes amounts paid for personal protective equipment, such as masks, hand sanitizer, and sanitizing wipes, as long as they were used for the primary purpose of preventing the spread of COVID-19. 
However, this deduction will be irrelevant to most taxpayers. To claim the deduction, your medical expenses have to be more than 7.5 percent of your adjusted gross income and your other deductions have to be sufficient to justify itemizing rather than taking the standard deduction. This may be the case if you have large home care, nursing home or assisted living expenses (the latter only deductible if you’re there for medical reasons), in which case the cost of your face masks, etc., is going to be a drop in the bucket. In addition, you can only deduct medical expenses you paid during the year, regardless of when the services were provided, and medical expenses are not deductible if they are reimbursable by insurance.

For the IRS’s press release on deducting personal protective equipment, click here.  
For more information on what you can and cannot deduct, see Publication 502 on the IRS Web site.

In a profanity-laced episode of his HBO show that is by turns hilarious and deeply disturbing, comedian John Oliver delivers one of his trademark rants, this one exposing the “abuse and neglect” that he says are all-too-prevalent in our system of long-term care. 
On the show Last Week Tonight, Oliver begins the 22-minute segment by recounting lurid media coverage of conditions in nursing homes, often caused by facility staff who are overworked and underpaid. One nursing assistant explains in an interview that each staff member at her nursing home has 22 residents to take care of every day, making it impossible to address all of their needs. Oliver contrasts the cost of nursing home care with the pay for the staff, pointing out that most nursing homes are for-profit institutions that charge thousands of dollars a month for care. Unfortunately, as Oliver explains, safeguards are no better in assisted living facilities, which are even more lightly regulated than nursing homes. 
Oliver also examines the difference in care provided based on who is paying for it. Medicare offers limited nursing home coverage, but it reimburses nursing homes for the full cost of care. As a result, if Medicare is paying for a resident’s care, then the resident may get more services than are necessary so the facility can reap more reimbursements. By contrast, Medicaid pays nursing homes much less, so Medicaid recipients may receive inferior care and may sometimes even be illegally dumped into the community. 
Understaffing and inadequate training of nursing home staff have consequences. Oliver gives examples of residents who met tragic fates due to staff neglect, including one resident who slipped into a pond and was eaten by an alligator and another who froze to death on Christmas. He also relates the story of a woman who tried for hours to summon help from staff at her nursing home before finally calling the local police for assistance.  
Oliver suggests that one remedy is increasing access to home-based care. President Biden has proposed $400 billion to improve home and community-based services. Whatever the solution, Oliver emphasizes that we need to show that we care deeply about “what happens to the elderly and people with disabilities in this country, because right now evidence points to the fact that we absolutely don’t.”
Click here to view the segment.  WARNING: As we note at the outset, Oliver’s diatribe is filled with expletives and may not be appropriate for all viewers. 
For Slate's take on Oliver's deep dive into the long-term care system, click here.

​The rules around required minimum distributions from retirement accounts are confusing, and it’s easy to slip up. Fortunately, if you do make a mistake, there are steps you can take to fix the error and possibly avoid a stiff penalty.  
If you have a tax-deferred retirement plan such as a traditional IRA or 401(k), you are required to begin taking distributions once you reach a certain age, with the withdrawn money taxed at your then-current tax rate. If you were age 70 1/2 before the end of 2019, you had to begin taking required minimum distributions (RMDs) in April of the year after you turned 70. But if you were not yet 70 1/2 by the end of 2019, you can wait to take RMDs until age 72. If you miss a withdrawal or take less than you were required to, you must pay a 50 percent excise tax on the amount that should have been distributed but was not.
It can be easy to miss a distribution or not withdraw the correct amount. If you make a mistake, the first step is to quickly correct the mistake and take the correct distribution. If you missed more than one distribution – either from multiple years or because you withdrew from several different accounts in the same year -- it is better to take each distribution separately and for exactly the amount of the shortfall. 
The next step is to file IRS form 5329. If you have more than one missed distribution, you can include them on one form as long as they all occurred in the same year. If you missed distributions in multiple years, you need to file a separate form for each year. And married couples who both miss a distribution need to each file their own forms. The form can be tricky, so follow the instructions closely to make sure you correctly fill it out. 
In addition to completing form 5329, you should submit a letter, explaining why you missed the distribution and informing the IRS that you have now made the correct distributions. There is no clear definition of what the IRS will consider a reasonable explanation for missing a distribution. If the IRS does not waive the penalty, it will send you a notice.

Buying long-term care insurance is one way to protect against the high cost of long-term care. However, this type of insurance may not be for everyone, so consider all your options.
Long-term care – care in a nursing home or at home -- may be paid for in four main ways: 

• Out-of-pocket. If you have sufficient resources, you can pay for your long-term care needs with money you have saved. 
• Medicare. Medicare covers short-term nursing home stays after an illness or injury that requires hospitalization. Medicare covers up to 100 days of "skilled nursing care" per illness. 
• Medicaid / MassHealth. If you have limited resources, Medicaid, administered by MassHealth in Massachusetts, will pay for nursing home care. In order to be eligible for Medicaid benefits a nursing home resident may have no more than $2,000 in "countable" assets (it may be higher in some states). 
• Long-term care insurance. With long-term care insurance, you pay monthly premiums to buy a policy that pays your long-term care costs if you are admitted to a nursing home or need home care (depending on the policy). 

Determining whether you need long-term care insurance depends, in part, on your financial situation. The cost of a long-term care insurance policy varies considerably, depending on your age when you purchase the policy, the benefit period, and the level of benefits, among other things, but the premiums can be expensive. Therefore, if you have the resources to self-insure your long-term care and still have money left over, you likely don’t need to buy a long-term care policy. On the other hand, if you cannot afford to pay monthly long-term care premiums, you will likely be able to qualify for Medicaid. 
Another factor to consider is your family’s health history. Most nursing home stays are short-term and paid for by Medicare. A common reason for needing extended long-term care is dementia. If you know you have a family history of Alzheimer’s disease, for example, it may make more sense to buy insurance. 
Of course, we never really know what the future may bring. Long-term care insurance is like any insurance policy: we don’t know if we will ever need it. In general, long-term care insurance is something to consider if:

• you have the resources to pay the premiums, even in retirement,
• you want to preserve your estate for your heirs, and
• you don’t have enough money to self-insure.

Netflix’s popular new movie, I Care a Lot, scenes of which were filmed in Braintree and Norfolk County, may be far-fetched in a lot of ways, but it does highlight some real weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. Fortunately, steps can be taken to avoid the guardianship system and the kind of nightmare the film portrays. 
A guardian is someone appointed by a court to make decisions on behalf of an incapacitated individual ("ward"). The guardianship process usually starts when a family member or social worker notifies the court that someone can't take care of him- or herself. The court often appoints a family member as guardian. However, if the family can't agree on a guardian or there is no family to act as guardian, the court may appoint a public guardian. Public guardians are supposedly neutral individuals who are hired to act in the ward's best interest.
I Care a Lot follows one such public guardian who exploits the system to gain control of her wards’ estates. The guardian, Marla Grayson, typically petitions for an “emergency guardianship” without notifying the ward. In the case that takes up most of the film, Marla appears on the doorstep of a very surprised Jennifer Peterson with a court order declaring Peterson incompetent (she is nothing of the sort) and forcing her to relocate to a long-term care facility. Marla has already arranged for Jennifer’s doctor to declare Jennifer incompetent, and Marla also has a deal with a long-term care provider to admit Jennifer to his facility. And because it is an emergency guardianship, Jennifer is not required to be notified to appear in court to defend herself. 
Then, without Jennifer’s knowledge or consent, Marla takes control of her life and finances. After Jennifer is moved to the care facility, Marla begins the process of selling her house and belongings and taking a generous cut of the proceeds. From there, the movie takes a lot of twists and turns that we won’t reveal here, but the starting premise is unfortunately not Hollywood fantasy.
The film’s premise is in fact quite similar to a real-life case involving Nevada public guardian April Parks. As guardian for hundreds of wards, Ms. Parks, took over their lives, sold their belongings, and charged their estates hundreds of dollars an hour while doing so. Over her 12 years as a public guardian, Ms. Parks built relationships with hospitals and medical providers to refer patients to her and found doctors who were willing to declare her targets incompetent. Families often found out too late that their loved one was under guardianship and beyond their legal control. 
Ms. Parks is clearly at the far end of guardianship exploitation and has been sentenced to 16 to 40 years in prison, but there are other unscrupulous guardians still exploiting the system. Unfortunately, in many states, the lack of court oversight combined with poorly trained guardians leads to abuse. Courts often do not have the resources necessary to provide proper oversight, and only a small minority of states certify their professional guardians. 
Not all states are equally vulnerable to guardianship exploitation. For example, New York’s guardianship system requires that an independent evaluator meet with the ward before an incapacitation hearing. And Arizona requires that its professional guardians be licensed through the state and that the ward have an attorney present during the incapacitation hearing, among other protections. Florida’s governor signed a law in 2019 requiring guardians to report details of payments, among other things. Nevada has also enacted a number of reforms, including requiring that individuals subject to guardianship be represented by an attorney. And in a rare display of bipartisanship, Congress passed a bill in 2017 that empowers federal officials to investigate and prosecute unscrupulous guardians and conservators appointed by state courts. 
While some states have begun passing reforms, there is more to be done. The Unform Law Commission, which provides states with model legislation, has proposed the Uniform Guardianship, Conservatorship, and Other Protective Arrangement Act (UGCOPAA).   The law would allow a court to order a protective arrangement rather than a full guardianship when appropriate, require that notice of the guardianship be sent to family, and prevent the guardian from barring family members from visiting the ward, among other things. So far only Washington and Maine have enacted the model law. 
Regardless of your state’s laws, the best approach is to avoid the need for guardianship and conservatorship entirely by putting durable powers of attorney and health care proxies in place ahead of time when you can choose the person you would like to make decisions for you when necessary. Even if you're not at risk of exploitation because your children or grandchildren would step in, the need for court intervention causes otherwise unnecessary expense and delay.

Parents and other family members who want to pass on assets during their lifetimes may be tempted to gift the assets.  Although setting up an irrevocable trust lacks the simplicity of giving a gift, it may be a better way to preserve assets for the future. 
A trust is a legal entity under which one person -- the "trustee" -- holds legal title to property for the benefit of others -- the "beneficiaries." The trustee must follow the rules provided in the trust instrument. An "irrevocable" trust cannot be changed after it has been created. In most cases, this type of trust is drafted so that the income is payable to you (the person establishing the trust, called the "grantor") for life, and the principal cannot be applied to benefit you or your spouse. At your death the principal is paid to your heirs. This way, the funds in the trust are protected and you can use the income for your living expenses. 
While gifting assets outright is much simpler process than setting up a trust, the following are some of the advantages of setting up a trust instead:

• Income. Putting assets in a trust means you can receive income from the assets to continue to pay for living expenses. Depending on how the trust is set up, you can receive regular income payments or the trustee could have discretion to make payments. 
• Control. With an irrevocable trust, you as the grantor can maintain some control over the assets. You get to choose the trustees and establish the rules of the trust. You can also retain the right to change beneficiaries with a power of appointment in your will.  
• Asset protection from creditors. If you give money to a family member directly, that money could be lost to the recipient’s carelessness, creditors, or divorce. Keeping the funds in a trust protects the assets for the future. 
• Taxes. If the trust is structured properly, it can have a tax advantage for your beneficiaries. Assets that have gone up in value will receive a “step-up” in basis on your death, which means your beneficiaries will pay less in capital gains taxes. Assets that are gifted do not receive a “step-up.” 
• MassHealth. If you anticipate needing long-term care benefits in the future, then it is important to plan ahead. If you give away money or fund an irrevocable trust within the five years (the "look-back period") before applying for MassHealth, you may face a period of ineligibility for MassHealth benefits. The actual period of ineligibility will depend on the amount gifted or transferred to the trust. Putting assets in a trust allows you to plan ahead while retaining some income and control over the assets. 

To set up an irrevocable trust, contact us today. 

​President Biden has signed the latest COVID-19 relief bill, which in addition to authorizing stimulus checks, funding vaccine distribution, and extending unemployment benefits, also provides assistance to seniors in a number of ways. 
The $1.9 trillion American Rescue Plan Act (ARPA) delivers a broad swath of relief, covering families, employers, health care, education, and housing. The following are the provisions that most directly affect older Americans:

• Relief checks. The ARPA provides $1,400 direct payments to individuals earning up to $75,000 in annual income and couples with incomes up to $150,000. The payments phase out for higher earners, and there are no payments for individuals earning more than $80,000 a year or couples making more than $160,000. Eligible dependents, including adult dependents, also receive $1,400. People collecting Social Security, railroad retirement, or VA benefits will automatically receive the payment even if they don’t file a tax return. The checks will not affect eligibility for Medicaid or Supplemental Security Income as long as any amount that pushes recipients above the programs’ asset limits is spent within 12 months.  
• Medicaid home care. The Act provides more than $12 billion in funding to expand Medicaid home and community-based waivers for one year. This funding will allow states to provide additional home-based long-term care, which could keep people from being forced into a nursing home. The money will also allow states to increase caregivers’ pay. 
• Nursing homes. Nursing homes have been hit hard during the pandemic. The Act supports the deployment of strike teams to help nursing homes that have COVID-19 outbreaks. It also provides funds to improve infection control in nursing homes. 
• Pensions. Many multi-employer pension plans are on the verge of collapse due to underfunding. The Act creates a system to allow plans that are insolvent to apply for grants in order to keep paying full benefits. 
• Medical deductions. If you have a large number of medical expenses, you may be able to deduct some of them from your taxes, including long-term care and hospital expenses. The Act permanently lowers the threshold for deducting medical expenses. Taxpayers can deduct unreimbursed medical expenses that exceed 7.5 percent of their income. The threshold was lowered to 7.5 percent under the 2017 tax law, but was set to revert to 10 percent for some taxpayers in 2021.  
• Older Americans Act. The ARPA provides funding to programs authorized under the Older Americans Act, including vaccine outreach, caregiver support, and the long-term care ombudsman program. It also directs funding for the Elder Justice Act and to improve transportation for older Americans and people with disabilities. 

If you are experiencing financial hardship due to the coronavirus pandemic, you may want to consider withdrawing money from your retirement account while you still can. The special exemption allowing early withdrawals without a penalty ends soon. 
Passed in March 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act allows individuals adversely affected by the pandemic to make hardship withdrawals of up to $100,000 from retirement plans this year without paying the 10 percent penalty that individuals under age 59 ½ are usually required to pay. This exemption is only for withdrawals made by December 30, 2020.
If you decide to withdraw money from your retirement account, you will still have to pay income taxes on the withdrawals, although the tax burden can be spread out over three years. If you repay some or all of the funds within three years, you can file amended tax returns to get back the taxes that you paid. 
To qualify for the exemption, you must meet one of the following criteria:

• You or a spouse or dependent have been diagnosed with COVID-19
• You or your spouse have suffered financial hardship due to the pandemic, such as a lost job, a job offer rescinded, reduced pay, business closed, or inability to work due to lack of childcare. 

This step should not be taken lightly. Withdrawing money now means your retirement funds will be reduced and limits the retirement plan’s ability to grow. But for some people, it may be the best option to pay bills and avoid running up high-interest credit card debt. 
For information from the Consumer Financial Protection Bureau on how the withdrawal exemption works, click here.